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Probable Cause: As Good as it Gets

Recently, I had the honor of teaching a 3-day in-service course at the police academy for a group of new investigators.  While some of the participants had a degree of investigative experience, they still found some value in the course, especially with regard to the 4th Amendment and Search & Seizure updates & refreshers.  We spent a good chunk of time talking about Probable Cause (P.C.) and how establishing probable cause for search warrants and arrests is key to not only getting the warrant, but to having a rock-solid case overall.  I made the point that your case never looks better than at the P.C. state.  This took some explaining for the class participants, so I figured this concept could also use some wider elaboration.

Good looking things all over

When brainstorming about this article, I thought about all of the other instances in society when things don’t ever look as good as they do at that golden moment.  Take a relationship, for instance:  Boy meets girl, boy and girl are attracted to each other, chemistry develops and, within a couple of weeks, everyone is on cloud nine!  Then, the inevitable physical encounter happens and it all goes downhill from there.  Sure, there are peaks and valleys (including marriage, depending on your point of view), but that relationship doesn’t ever look as good as it does when the butterflies are in your stomach and the tension is building and everything your partner says or does is gold!

Draw the analogy out another step… When you buy a new car, (even if it’s used, it’s still new to you) that car never drives better, smells better or looks better than that first week you own it.  You’ll even find reasons to drive it, taking the long way home from work or the grocery store.  Then that first car payment bill hits and it’s all downhill from there!  Maintenance, mechanical issues, insurance bills and monthly payment… it all just gets to be a grind and, after about another year, you just want a new car again!  I guess this is where leasing companies find their niche.

What does this have to do with my investigations?

The same philosophy and practice is true at the micro level in your cases.  Think about it – you work hard to build your case.  You develop informants, gather evidence, conduct surveillance, investigate your target’s background and write reports documenting all of your findings.  Then, you finally have that moment when you’re ready to pull the proverbial trigger and apply for your search warrant.  You write up your P.C. statement and get it approved by your supervisor and take it to the judge/magistrate and everything is golden!  Your case probably just got the best it’s ever going to get.

Probable Cause represents a legal requirement that something illegal probably happened and the target of your investigation probablydid it.  There are no absolutes about any of this, despite your hard work, diligent gathering of evidence, time invested, etc.  Probable Cause also represents the stage at which all of your evidence is in the light most favorable to your case – it never looks better.  Virtually no one has picked over the facts yet and no one has scrutinized your work.  Trust me, it’s coming!  Once the prosecutor and the defense attorney get ahold of your reports, affidavits, statements & other evidence, your case will be picked apart piece by piece and scrutinized to extreme levels.  It goes without saying (but I will anyway) that the more important the case, the more this is likely to happen.  The problem is, you may not know how important your case is until after you’ve established probable cause, so it is fully incumbent upon the investigator to keep an open mind and make sure all of the details are taken care of in all cases, otherwise we risk falling into complacency and bad patterns.

Many important cases require multiple warrants and have multiple targets.  When I say your case never looks better than it does at the P.C. stage, that doesn’t mean that it can’t look that good again, such as application for a subsequent search warrant.  It simply means that at that point, your evidence looks the best way it can for any audience.  After motion hearings have been had and plea bargains are discussed, the inevitable holes in your case start to shine some light on the overall facts.

Begin with the end in mind

Before I left full-time police work and launched my business, I consulted my brother, a career entrepreneur & businessman.  I asked him to refer me to any resources that might help in my new business endeavors.  He recommended The 7 Habits of Highly Effective People by Stephen Covey.  I scoffed at first under the impression that Covey was some sort of cultish quack, but I decided to keep an open mind.  I listened to the book on tape (I always fall asleep reading books) and I loved it.  One of the 7 habits: Begin with the end in mind.

Beginning with the end in mind as an investigator or digital forensic examiner is more of an abstract concept.  As I said before, it’s vital to go into any investigation with an open mind, but investigators in particular should have, at the very least, the end of successful case closure in mind. You will find the bad guy, you will get the evidence you need, you willestablish more than probable cause and you will do good work repeatedly.

Begin with the mindset that you’ll find the truth of the matter.  Begin with the mindset that the evidence will lead you to the facts.  Begin with the mindset that, when you develop probable cause, your evidence will be air tight (or as much as possible).  And don’t forget the victims of the crime(s) you’re investigating – they’re the ones you’re out there to help.

Patrick J. Siewert, SCERS, BCERT, LCE
Principal Consultant
Professional Digital Forensic Consulting, LLC
Based in Richmond, Virginia

Available Globally

About the Author:

Patrick Siewert is the Principal Consultant of Pro Digital Forensic Consulting, based in Richmond, Virginia.  In 15 years of law enforcement, he investigated hundreds of high-tech crimes, incorporating digital forensics into the investigations, and was responsible for investigating some of the highest jury and plea bargain child exploitation cases in Virginia court history.  A graduate of both SCERS and BCERT (among others), Siewert continues to hone his digital forensic expertise in the private sector while growing his consulting business marketed toward litigators, professional investigators and corporations.

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