Academic journal article Fordham Urban Law Journal

Do the Clothes Make the Man? Implications of a Witness' Status in the Determination of Probable Cause

Academic journal article Fordham Urban Law Journal

Do the Clothes Make the Man? Implications of a Witness' Status in the Determination of Probable Cause

Article excerpt

A couple walks up to a convenience store. The man waits in front of the store while his female companion goes inside to purchase a soda. The store's security guard follows the woman to the back of the store, verbally harasses her and makes suggestive gestures. When her male companion notices the trouble, he enters the store and tells her to put down the soda and leave the store. At that point, an altercation ensues between the security guard and the male. Both men are bloodied. The male companion eventually breaks free of the guard and runs out of the store. He calls 911 and reports that he has just been assaulted at the convenience store and that he needs the police and an ambulance. He then goes back to the store and waits on the sidewalk for the police to arrive.

Presently, an officer arrives on the scene and approaches the bloody customer who explains that he called 911. The officer tells him to stand against the wall and stay still. The customer tells the officer that he wants to press charges against the store's guard and that the police should arrest him. However, the officer repeatedly tells the customer to be quiet. The police officer does not inquire or listen to the customer give his account of what happened. Instead, the officer listens to the security guard's account. The guard says that the male customer was trying to steal a soda. The guard goes on to say that when he apprehended the alleged criminal, the customer struck him. The guard claims that he reacted in self-defense by hitting the customer. The policeman takes the guard at his word and arrests the customer.


Does the policeman have probable cause to arrest the customer? Should the security guard's status as an authority figure be enough to allow his statement to furnish probable cause to arrest? The police must make credibility determinations on the spot. They do not have the benefit of 20/20 hindsight. Rather, they must evaluate the situation they are confronted with and determine whether the witness' statements supply the requisite probable cause.

As police enter a crime scene, they are often confronted with a scenario like the one above. Typically, any number of witnesses are willing to give their account of what happened. These witnesses could be the victim, a random stranger, an authority figure, or someone with a hidden agenda. Should the status of the witness be dispositive of his credibility in the eyes of the officer making a probable cause determination?

This Note examines police determination of probable cause based on witness credibility. Part I sets out the probable cause standard and details the relevant probable cause case law and the policy considerations behind the Fourth Amendment. Part II examines different types of witnesses the police encounter and analyzes whether the status of the witness implies more or less credibility. This Part also describes various eyewitnesses, including ordinary citizens, putative victims, store guards, and police officers to demonstrate the possible weaknesses of affording undue weight to a particular witness based solely on status. Part III evaluates the factors that officers apply in their determination of probable cause. This Part argues for a flexible standard rather than a rigid rule regarding the determination of witness credibility. Finally, this Note concludes that the status of the witness should not be determinative, but rather should be just one of the factors the police take into account when deciding whether probable cause exists.


A. What is Probable Cause?

The Fourth Amendment to the United States Constitution governs all searches and seizures conducted by government agents. (1) The amendment has a dual purpose: first, to prohibit unreasonable searches and seizures; second, to require probable cause for the issuance of a warrant. (2) The Fourth Amendment does not literally require probable cause to accomplish a warrantless arrest. …

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