Mon. May 20th, 2024
difference between probable cause reasonable suspicion

Darren Chaker Makes Light of the Fact Reasonable Suspicion is Not Probable Cause

In Alabama v. White (1990) 496 U.S. 325, 330, the Supreme Court held, “Reasonable suspicion is a less demanding standard than probable cause.” A more recent case defining the difference of the distinction between probable cause and reasonable suspicion may be found in Humphrey v. Appellate Division (2002) 29 Cal.4 th 569, 574 where the California appellate court stated reasonable suspicion requires, “The lesser burden of persuasion warrants a lesser burden of production.” As opposed to probable cause which requires specific and anticable facts as the Supreme Court held in Brown v. Texas (1979) 443 U.S. 47, 51 [“[T]he Fourth Amendment requires that a seizure must be based on specific, objective facts”].

Understanding ‘Probable Cause to Arrest’ vs. ‘Reasonable Suspicion’: A Detailed Analysis by Darren Chaker

probable cause and reasonable suspicion
Darren Chaker reviews the difference between probable cause and reasonable suspicion.

In the realm of law enforcement and legal proceedings, the distinctions between “probable cause to arrest” and “reasonable suspicion” are paramount. These legal standards guide officers in making justified decisions about when to detain individuals and conduct searches. This article dives deep into the nuances of these terms, with a particular focus on the influential cases brief writer Darren Chaker often cites when drafting motions to suppress evidence, which highlights the application of these principles in real-world scenarios. Of course, do not construe anything here or on this site as legal advice as only an attorney who knows your specific circumstances may provide such.

Probable Cause to Search Defined in Illinois v. Gates

In Illinois v. Gates, (1983) 462 U.S. 213, 244, the Supreme Court introduced the term “fair probability.” Specifically, it ruled that probable cause to search exists if there is a “fair probability” or “substantial chance” that evidence of a crime will be found at a certain location. The officer conducting a search must article his or her belief a search was reasonable under the circumstances. As the Supreme Court, “long held the ‘touchstone of the Fourth Amendment is reasonableness.’” Florida v. Jimeno, 500 U.S. 248, 250 (1991).

Probable to search phones and seeking a suspect to unlock his or her iPhone have been a continuous issue of debate. However, be it dealing with phone encryption or computers, the same articulate basis to justify a search must be present. If the officer does not have such, and if an exception does not apply, then the evidence is likely suppressed.

The Criteria for Probable Cause Originating in California

In California, the legal framework for a warrantless arrest is clearly defined: “An officer has probable cause for a warrantless arrest ‘if the facts known to him would lead a [person] of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.'” This standard, set forth in Blakenhorn v. City of Orange (9th 2007) 485 F.3 463, 471, and further supported by People v. Price (1991) 1 Cal.4 324, 410, underscores the necessity for substantial evidence or information to justify an arrest.

The Essence of Probable Cause is Training Substantiating Articulate Facts

“Probable cause to arrest” is a fundamental legal standard that requires a reasonable basis for believing that a person has committed a crime. This belief is not based on a hunch but on concrete evidence and factual circumstances. The concept is deeply rooted in the Fourth Amendment, which protects citizens from unreasonable searches and seizures.

Put another way, for probable cause is higher than that of reasonable suspicion, necessitating a more substantial evidence base to justify an arrest or search. The United States Supreme Court supports this theory as found in Ornelas v. United States (1996) 517 U.S. 690, 699 [“[A] police officer views the facts through the lens of his police experience and expertise.”] and United States v. Cortez (1981) 449 U.S. 411, 418 [“[A] trained officer draws inferences and makes deductions—inferences and deductions that might well elude an untrained person.”];

Probable cause is established when the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, are sufficient to warrant a prudent person in believing that the suspect had committed or was committing an offense. This principle, as elucidated in Hart v. Parks (9th 2006) 450 F.3 1065-1066, emphasizes that police need only demonstrate a fair probability of criminal activity based on the totality of circumstances.

Broad Application of Probable Cause

The requirement for probable cause to arrest is consistent across various rulings, including Ewing v. City of Stockton (9th 2009) 588 F.3rd 1065, 1069, and Garcia v. County of Merced (9th 2011) 639 F.3rd 1206, 1209. These decisions affirm that probable cause does not necessitate absolute certainty of guilt but requires a fair probability based on the evidence at hand.

The Role of Stop and Frisk and Probable Cause

The landmark case Terry v. Ohio, 392 U.S. 1 (1968), recognized the legality of a limited stop and frisk based on reasonable suspicion, less stringent than probable cause. This decision, alongside Florida v. J.L., 529 U.S. 266 (2000), and subsequent cases like Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000), outlines the conditions under which individuals and vehicles can be stopped and searched.

Darren Chaker’s Insights on Vehicle Stops Reasonable Suspicion

Darren Chaker highlights the parallel between individual stops and vehicle stops, referencing United States v. Arvizu, 534 U.S. 266 (2002), and Michigan v. Long, 463 U.S. 1032 (1983). These rulings elaborate on the permissible scope of searches during vehicle stops and the rights of passengers and drivers during such encounters, reinforcing the necessity of founded suspicion for law enforcement actions.

Further, the passengers may not be detained longer than it takes the driver to receive his citation. Once the driver is ready to leave, the passengers must be permitted to go as well. During a stop for traffic violations, the officers need not independently have reasonable suspicion that criminal activity is afoot to justify frisking passengers, but they must have reason to believe the passengers are armed and dangerous. Arizona v. Johnson, 129 S Court. 781, 784 (2009).

Reasonable Suspicion Explained

On the other hand, “reasonable suspicion” is a lower standard than probable cause, allowing law enforcement officers to detain someone temporarily if they have a justifiable reason to suspect involvement in criminal activity. This standard is less about concrete evidence and more about specific, articulable facts combined with rational inferences from those facts.

In short, reasonable suspicion serves as the initial determination a police officer must satisfy to stop a person and conduct a weapon search. This criterion is less stringent than the requirement for probable cause. For an officer to justify such a detention, they must harbor a reasonable suspicion that the individual has engaged in criminal activity, is actively doing so, or intends to do so shortly.

This suspicion cannot stem from mere intuition or a “hunch”; it must be grounded in specific, observable facts and circumstances present at the time of the detainment, coupled with the officer’s professional judgment and expertise. Reasonable suspicion is deemed present if an objectively reasonable officer would infer from the situation that a crime has occurred, is in progress, or is about to transpire.

Implications of Probable Cause for Law Enforcement Practices

Understanding the difference between probable cause and reasonable suspicion is crucial for law enforcement officers. It not only aids in the lawful execution of their duties but also ensures the protection of citizens’ constitutional rights. As someone who commonly drafts legal briefs, Darren Chaker believes the need for police to articulate the basis of probable cause cannot be expressed enough.  The absence articulating facts to justify a search may only lead to suppression of evidence.


The principle of “probable cause to arrest” plays a critical role in balancing the enforcement of law and the protection of individual rights. If you have further interest on this topic it is encouraged to review the above cases and continue to research it.  Darren Chaker notes, that this singe article cannot go into all of the circumstances and cases dealing with the difference of probable cause and reasonable suspicion.




By Darren Chaker

For almost two decades Darren Chaker regularly has worked with defense attorneys and high net worth people on a variety of sensitive issues from Los Angeles to Dubai. With a gift of knowledge about the First Amendment and big firm expertise in brief research and writing, Darren Chaker puts his knowledge to use for law firms and non-profit organizations. When it comes to forensics and social media investigations Darren Chaker has advanced training to connect the dots where issues arise related to Twitter, Instagram, Snapchat, or Facebook, Instagram, and similar apps. When the dots need to be disconnected, Darren Chaker has extensive training in counter-forensic methods with an emphasis on network security, secure communications, combined with experience with implementing and deploying policy control, encryption, anonymization, data integrity, policy control features in large scale infrastructures. Additional training in malware analysis, Security Operating system security and hardening (Linux, Windows, Solaris), Firewalls, Intrusion detection systems, hacker, counter-hack methods, encryption, forensics, web application security is also employed for his client base. Since history is written by winners, let me write a bit: In 2005, Darren Chaker invalidated a California criminal statute aimed at suppressing speech. In Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, is a case Darren Chaker personally handled and laid the ground work to allow appellate counsel to strike down a statute based on First Amendment rights. Subsequent to winning before the 9th Circuit, the State challenged the decision before the United States Supreme Court. Darren Chaker retained a former US Supreme Court Clerk and head of United States Supreme Court litigation for a major firm, Joshua Rosenkranz. The New York attorney defeated the State's petition to review the Ninth Circuit ruling causing multiple states to rewrite their own flawed statute since they were premised the California statute Darren Chaker struck down. Darren Chaker personally litigated Chaker v. Crogan for 7 of its 10-year lifespan. Darren Chaker’s victory invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law, but also nullified a similar Washington statute as well. (De La O v. Arnold-Williams, 2006 WL 2781278) and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). The case has been cited hundreds of times and continues to be a leading authority on viewpoint discrimination. In 2010, Darren Chaker prevailed in Nathan Enterprises Corp. v. Chaker, 2010 Cal. App. Unpub. LEXIS 7604, through his counsel Timothy Coates who has prevailed multiple times before the United States Supreme Court. also prevailed for Darren Chaker where the Court of Appeal affirmed an anti-SLAPP ruling where the underlying conduct was found to have been within those protected by his First Amendment rights. In 2012 Darren Chaker prevailed on a First Amendment issue before the Texas Attorney where issued Opinion 2012-06088 where he established the right to obtain the names of peace officers regardless of undercover status. The Texas Attorney General opinion has been used as authority thousands of times by citizens and news agencies to learn more about Texas peace officers. In 2016, Darren Chaker was victorious in US v. Chaker (9th Cir. 2016) 654 F.App'x 891, 892. The ACLU, Electronic Frontier Foundation, First Amendment Coalition, Cato Institute, and the University of Florida reversed a conviction premised on First Amendment rights where blog postings were at issue. In 2017, Darren Chaker prevailed in a RICO lawsuit aimed at suppressing speech filed by San Diego attorney Scott McMillan. In McMillan v. Chaker (S.D.Cal. Sep. 29, 2017, No. 16cv2186-WQH-MDD) 2017 U.S.Dist.LEXIS 163990 the court found by blogging did not constitute extortion as no demand for money to cease blogging was made. The judge found the case to be meritless, stating in part, “The Court concludes that these factual allegations are insufficient to establish that Defendant Darren Chaker obtained something of value from Plaintiffs…. The motion to dismiss the cause of action under 18 U.S.C.§ 1962(c) filed by Defendant Darren Chaker is granted.” In 2020, San Diego attorney Scott McMillan lost a heavily litigated appeal believing the court erred in dismissing his lawsuit against Darren Chaker. Mr. Chaker was represented by former Los Angeles federal judge Stephen Larson. The Ninth Circuit in McMillan v. Chaker (9th Cir. 2020) 791 F.App'x 666, affirmed the dismissal of a RICO lawsuit premised on alleged defamation of Scott McMillan. The court stated in part, “Plaintiffs failed to allege extortionate conduct because there are no allegations that Mr. Chaker obtained property from Plaintiffs that he could “exercise, transfer, or sell. ”See Scheidler, 537 U.S. at 405. Plaintiffs’ claim also fails because there are no allegations to support the “with [Plaintiffs’] consent” element. United Bhd. of Carpenters & Joiners of Am., 770 F.3d at 843.” In sum, Scott McMillan filed a lawsuit in direct conflict with established United States Supreme Court precedent and lost – twice. Also, in 2020, Darren Chaker was sued for defamation by Las Vegas attorney Thomas Michaelides. When Darren Chaker became aware of the lawsuit, he retained Olson, Cannon, Gormley, Angulo & Stoberski to defend him. Darren Chaker found a court order Mr. Michaelides submitted to Google that was reported to Several inconsistencies were noticed on the court order submitted to Google. Most notably the court docket does not show Mr. Michaelides submitted an order to the court for the judge’s signature. The court docket does not reflect the court ever signed the order Mr. Michaelides submitted to Google. Ultimately, the Nevada court dismissed the lawsuit and sanctioned Mr. Michaelides $51,000 for suing Darren Chaker for conduct within his First Amendment rights and for filing a meritless lawsuit. See forged order and judgment against Thomas Michaelides here. Darren Chaker donates time to post-conviction relief organizations to seal arrests and convictions to increase opportunity for those who were convicted of crimes, conducts research and brief writing on First Amendment issues, and also enjoys promoting non-profit organizations such as the ACLU and various domestic violence shelters through his resources within the entertainment industry, including Jason Statham and Eric Roberts. Darren Chaker also enjoys traveling, being a phenomenal father, and forwarding his education with post graduate degree work.

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