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Michael W. Modica Law Your Cause Is My Purpose.
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Probable Cause 101: Your Rights In A Delaware Criminal Case


When you hear the term “probable cause” used in conjunction with a Delaware criminal case, you may have a basic understanding about what it means and its impact on your civil rights. The basis for the concept comes from the Fourth Amendment to the US Constitution and Section 6 of the Delaware Bill of Rights, which both prohibit unreasonable searches and seizures by officials. To conduct probing investigations, police need probable cause. Without it, their actions are illegal and any evidence turned up during a search is inadmissible in court.

However, there are literally thousands of cases in Delaware and federal courts that have attempted to pinpoint the exact definition of probable cause. As a result of 230+ years that judges have been interpreting the term, this area of law is one of the most complicated concepts. You can rely on your Wilmington criminal attorney to address probable cause where necessary to protect your rights, but you should be aware of the basics.

Defining Probable Cause: The focus of probable cause is whether there are facts or circumstances present that would lead someone to believe that a crime was committed or criminal activity is stirring. The specifics regarding the probable cause question depend upon who is determining whether it exists.

  1. Judges: Police or prosecutors may seek a warrant for an arrest when they possess sufficient facts to prove a crime, but that person is not in custody. At a hearing, a judge will review documents, physical evidence, and/or testimony to determine whether there is probable cause before issuing the warrant. 
  1. Police: Officers must have a warrant issued by a court to make an arrest, but they can also charge someone when they have probable cause. The legal requirement is that police must have a reasonable belief that a crime was committed AND that you were the one who did it. Reasonableness will depend on how a person would perceive the surrounding circumstances, when he or she is in the same position and has the same information available.

Delaware’s 2-Hour Detention Law: You should be aware of a specific Delaware statute regarding questioning and detaining suspects. The law affects probable cause in the context of arrests by police without a warrant, as it allows officers to stop a person based upon a “reasonable articulable suspicion” of criminal activity. This standard is lower than probable cause, and it gives police authority to hold you for up to two hours – without violating your civil rights. Despite controversy and legal challenges, the 2-hour detention law remains in full force and effect in Delaware.

Schedule a Consultation with a Delaware Criminal Defense Attorney 

This overview on probable cause is an informative guide, but the details will always be extremely complex when the concept raises questions about civil liberties. To learn more about your rights, please call 302.600.1262 or go online to reach the office of Attorney Michael W. Modica. We can set up a case evaluation to review your circumstances and potential defense strategies.


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