What is Probable Cause and What Does it Mean in Florida?

Posted by Fred Koberlein | Oct 24, 2015 | 2 Comments

What is Probable Cause and What Does it Mean in Florida?

Most people are aware of the basic concept behind protection from unlawful search and seizure and how it is embedded in the 4th Amendment of the U.S. Constitution, but they are not aware of the finer mechanics of this concept.  The general rule is that seizures of property or searches are unlawfulUnless “probable cause” exists, and this is true even when a search or arrest is being carried out under a warrant. Determining whether probable cause was present is a task frequently undertaken by Florida criminal defense attorneys seeking to ensure their client's rights.

The Definition of Probable Cause

A law enforcement officer or a judge may be in a position to determine probable cause. When a warrant has been obtained before a search is conducted, the judge who approved the warrant has made the initial finding of probable cause. In Florida, this is governed by Rule 3.120 and Florida Statute 933.07, both of which empower the judge to find probable cause when issuing search warrants.

When a law enforcement officer makes this determination, it's based on a belief that the circumstances and facts within his or her available knowledge would lead a reasonable person to believe two things:

  1. that a criminal offense has been committed; and
  2. that the potential arrestee committed the offense.

In terms of property, probable cause is defined as when the circumstances and facts at play would lead a reasonable person to assume that the property is stolen, contraband, or otherwise evidence linked to a crime and that the property is likely to be found in the property that will be searched.

What is a Reasonable Person?

The “reasonable person” tests are objective and are based on the concept that such a reasonable person would have the same information as the law enforcement officer actually involved in the case.

What Rules Govern the Application of Probable Cause and Arrests?

In Florida, there are several statutes related to the application of probable cause.  Generally, a law enforcement officer must observe events that lead him or her to determine that probable cause exists.  Otherwise, a law enforcement officer generally needs to convince a judge to issue an arrest warrant.  However, a law enforcement officer can arrest someone without having observed any events and without an arrest warrant if that officer determines that the person has committed a criminal act under one of the following statutes:

  • Florida Statute 790.233: related to possession of ammunition, firearms, or when a person is subject to injunctions against committing acts of stalking, domestic violence, or cyberstalking
  • Florida Statute 741.31: related to violation of an injunction for a domestic violence protection order
  • Florida Statute 784.07: related to violating a protective order for sexual violence, repeat violence, or sexual violence

Situations where an arrest warrant is absent tend to be very complex and thus are discussed often in case law (decisions of appellate courts). For example, in the Wong Sun V. U.S. Case, it was found that the reliability of information on which an officer can act cannot be any less stringent than situations where an arrest warrant is obtained. This is only one example of the continuous attempt to interpret the Fourth Amendment.


Protection from unreasonable search, seizure, or arrest as a result of lack of probable cause involves advocacy from committed criminal defense attorneys in Florida.  The law continues to evolve from higher appellate courts.  Lawyers must continuously educate themselves and read the rulings of higher courts in order to fight for their clients.  Experienced criminal defense attorneys who work to uphold the rights of charged individuals in court may file motions to suppress or motions to dismiss if it becomes apparent that the individual's constitutional rights were not protected.  At Koberlein Law Offices we constantly read the rulings of higher courts and spend our own time and money attending training when we are not in the courts fighting for our clients. 

About the Author

Fred Koberlein

Fred Koberlein is a trial attorney who opened Koberlein Law Offices after acquiring extensive legal experience in three legal practice areas, which are: personal injury law; criminal defense; and local government matters which require you to appear or present your matter before your local government Boards, government Councils, and government Agencies. Mr. Koberlein began trial preparation through an externship as a legal clerk with the Judges of the Third Judicial Circuit for Florida prior to his graduation from the University of Florida, College of Law.  After law school Mr. Koberlein was dedicated to becoming a trial attorney and worked with the Public Defender's Office from 2004 to 2007, where he was promoted to handling felony cases within eight months of hire.  Mr.  Koberlein has handled over 1500 criminal cases ranging from possession of cannabis, DUI, serious felonies, white-collar crimes, violations of probation hearings, and countless motion hearings. Mr.  Koberlein began practicing in the areas of personal injury and insurance defense during 2006.  Mr. Koberlein's experience in prosecuting personal injury claims against those insurance companies he was not representing and defending other insurance companies and their customers provided a unique experience where he was able to learn what each side anticipates from the opposing party.Next, Mr. Koberlein was hired by a City to defend the City's interests and three additional Cities quickly followed and retained Mr. Koberlein to protect their interests.  Currently, Mr. Koberlein represents a total of four (4) municipalities in the North Florida area.  As Mr. Koberlein focused on civil litigation he remained passionate about representing individuals charged with misdemeanor and felony crimes as well as civil litigation issues. Mr.  Koberlein has the experience and reputation to negotiate a favorable resolution in your matter, and if that is not possible, to provide the best, most zealous trial representation available.  Utilizing competent and trusted investigators and experts, your case will be prepared so that the best result will be achieved.  If you or a loved one is hurt, damaged, or is facing criminal charges, you want a qualified, hard-working attorney who will explain your options to you in a straightforward, commonsense, and honest manner. Education and Practice Experience: University of Florida; Gainesville, Florida; Bachelor of Science, 1997 University of South Florida; Tampa, Florida; 1998 University of Florida, College of Law; Gainesville, Florida; 2003 Bar and Court Admissions: Florida Bar, 2004 – Present All 67 Counties in Florida All 20 Circuits in Florida U.S. District Court, Middle District of Florida U.S. District Court, Northern District of Florida Professional and Civic Activities: Florida Bar Trial Lawyers, 2007 – Present Florida Bar Business Law Section, 2007 – Present Florida Bar Criminal Law Section, 2004 – Present Florida Association of Criminal Defense Lawyers, 2004 – Present Third Judicial Bar Association, 2004 – Present Mr.  Koberlein is committed to his clients and devotes himself to protecting their interests from the beginning to the end of their case.  Mr. Koberlein has spent his career helping clients defend themselves against criminal charges, fight insurance companies, and proceed through the bureaucratic process of local governments.  Mr. Koberlein welcomes the opportunity to meet with you and evaluate your legal needs and provide you with an experienced and competent analysis.


Chris Gamble Reply

Posted Sep 03, 2017 at 11:13:59

Is seeing a empty holster in a vehicle probable cause to search a vehicle

Deirdre Dancy Reply

Posted Dec 27, 2017 at 08:21:19

thank you for the insightful information, it was very helpful in helping my research as I prepare to file motion to vacate sentence.

Leave a Comment

Don't Go Into The Courtroom Alone

Whether it's a personal injury case, a criminal case, or an administrative dealing with the government, you will want a dedicated attorney at your side. We take each case very seriously, and we are dedicated to getting our clients the success they deserve.