State v. Buccini , 167 Ariz. 550 ( 1991 )

CAMERON, Justice,

specially concurring:

The term probable cause has been troublesome since the beginning of our republic. Chief Justice John Marshall in 1813 stated:

[T]he term “probable cause,” according to its usual acceptation, means less than evidence which would justify condemna-tion____ It imports a seizure made under circumstances which warrant suspicion.

Locke v. United States, 7 Cranch 339, 3 L.Ed. 364 (1813).

Others have tried to bring some harmony into the meaning stressing that:

[There is a] difference between what [evidence] is required to prove guilt in a criminal case and what [evidence] is required to show probable cause for arrest or search____ There is a large difference between the two things to be proved, as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them.

In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.

Brinegar v. United States, 338 U.S. 160, 173, 175, 69 S.Ct. 1302, 1309, 1310, 93 L.Ed. 1879 (1949).

To show probable cause it is not necessary that the arresting officer should have had before him legal evidence of the suspected illegal act. It is enough if the apparent facts which have come to his attention are sufficient in the circumstances, to lead a reasonably discreet and prudent man to believe that liquor is illegally possessed in the automobile to be searched.

Husty v. United States, 282 U.S. 694, 700-01, 51 S.Ct. 240, 241-42, 75 L.Ed. 629 (1931) (citations omitted).

Evidence required to establish guilt is not necessary. On the other hand, good faith on the part of the arresting officers is not enough. Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing the offense has been committed.

Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959) (citations omitted).

[P]robable cause ... is [a] reasonable ground of probability supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused guilty. “Probable cause” or “reason to believe”, therefore, is like a third-quarter percentile; it is more information than would justify the officer saying, “From all the circumstances I suspect this man”, but it need not be such information as would justify the officer in saying, “From all the circumstances I know this is the man”.

Monroe v. Pape, 221 F.Supp. 635, 642-43 (D.C.Ill.1963) (citations omitted).

Probable cause is more than mere suspicion. Facts that would cause the officer to investigate the matter further differ from facts that support a finding of probable cause. In this case, absent the false statements, the affidavit supported only a mere suspicion of defendant’s connection to the pipe bomb.

Defendant’s actions when questioned became important. His cooperation with the authorities is a point in his favor, though not conclusive. The inference in the affidavit, that the defendant did not cooperate and wanted to avoid the police, might, if true, provide the magistrate with the missing link to warrant a prudent man to rationally believe that there was probable cause to issue the warrant.

Because the defendant had the capacity to make a pipe bomb, a capacity he no doubt shared with others in the community, does not mean he made the bomb in question. The officer should have proceeded to investigate the matter to the point that he either found probable cause or excluded defendant as a suspect. The officer’s good faith belief that defendant made the bomb is not enough. Probable cause exists when the facts and circumstances known to the officer were such that a reasonable person could believe defendant committed the crime, or was in possession of evidence that would connect defendant to the crime. Henry, 361 U.S. at 102, 80 S.Ct. at 171. Furthermore, I note that when an affidavit is knowingly false in part, it tends to infect the whole affidavit and makes the state’s burden more difficult.

I would affirm the decision of the trial court.