Ralph B. Strickland, Jr.
Agency Legal Specialist
North Carolina Justice Academy

Volume 1 Number 9
October 1994

Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).

The Probable Cause for Warrantless Arrest Case.

Long ago (1956) and in a place far away (Denver) there lived a Federal Bureau of Narcotics agent named Marsh. Agent Marsh had a paid confidential informant named Hereford who routinely supplied information regarding violations of the narcotic laws which Marsh found to be accurate and reliable.

Hereford provided Marsh with the following information: "James Draper peddles narcotics to addicts. Draper has gone to Chicago by train but will be returning on September 8th or 9th in the morning and will be carrying three ounces of heroin. Mr. Draper is a black male with light brown complexion, 27 years of age, 5 feet 8 inches tall, weighs about 160 pounds, is wearing a light colored raincoat, brown slacks and brown shoes. He will be carrying a tan zipper bag and habitually walks real fast."

On September 8, Marsh went to the train station in the morning and watched all the trains coming from Chicago. No luck. But on the morning of September 9, Marsh saw a person, with the exact physical attributes and wearing the precise clothing, "alight" from an incoming Chicago train and start walking fast toward the exit. He was carrying a tan zipper bag and wearing a raincoat. Agent Marsh and a police officer stopped him, arrested him and searched him (finding heroin and a syringe).

Mr. Draper was convicted in federal district court and the court of appeals affirmed. The Supreme Court took the case and in it an opportunity to make three very positive statements about warrantless arrests. First, like our G.S. 15A-401(b)(1), the federal agents have a statute which authorizes them to make a warrantless arrest if they have probable cause to believe that a crime is being committed in their presence. While we may take such arrests for granted, it would be in the best interests of all law enforcement officers to review their arrest authority as established in G.S. 15A-401.

Second, the Supreme Court made it very clear that you may use hearsay to establish probable cause in arrest and search situations. While hearsay evidence may generally not be admitted at a criminal trial (although there are certain exceptions), it may always be used to establish probable cause for a warrantless arrest or search (as well as those with warrants). The test that magistrates and all courts in this state use to establish probable cause is the totality-of-the-circumstances test. This test authorizes the use of such hearsay information to establish probable cause. Never hesitate to use hearsay information to help establish probable cause. The most common use of hearsay is the confidential informant's information used to establish probable cause to search a place for drugs.

Finally the Supreme court stated:

The information given to narcotic agent Marsh by "special employee" Hereford may have been hearsay to Marsh, but coming from one employed for that purpose and whose information had always been found accurate and reliable, it is clear that Marsh would have been derelict in his duties had he not pursued it. And when, in pursuing that information, he saw a man, having the exact physical attributes and wearing the precise clothing and carrying the tan zipper bag that Hereford had described, alight from one of the very trains from the very place stated by Hereford and start to walk at a "fast" pace toward the station exit, Marsh had personally verified every facet of the information given him by Hereford except whether petitioner had accomplished his mission and had the three ounces of heroin on his person or in his bag. And surely, with every other bit of Hereford's information being thus personally verified, Marsh had "reasonable grounds" to believe that the remaining unverified bit of Hereford's information -- that Draper would have the heroin with him -- was likewise true.

In dealing with probable cause, 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. Probable cause exists where the facts and circumstances within their [the arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.

This paragraph contains the essence of what probable cause is. First, note that the Supreme Court states that the simple fact that Agent Marsh corroborated or verified Hereford's detailed information supplied probable cause. I cannot over-emphasize this: always take the time to personally verify as much of the information from a confidential or good-citizen informant as time and strategy will permit. The courts of this state appreciate personal verification by the affiant to a search or arrest warrant of the information provided by non-law enforcement personnel. You cannot help but enhance your credibility and strengthen your case by taking the time and effort to personally verify your information.

Next, you should pay close attention to the actual definition the court gives for probable cause... "probabilities...not technical...factual and practical considerations of everyday life on which reasonable and prudent men...act." You use common sense to establish probable cause. There are no technical rules; just the same type of practical analysis of the situation you use everyday to make the countless decisions we all must make in our personal lives. You only need to establish a fair probability that a crime has occurred or that an item with a connection to a crime is in a place you want to search. This is generally much easier that many believe. Remember: you are dealing with common sense probability and not technical certainty.

If you have any questions, call me or the other attorneys here at the Justice Academy at (910) 525-4151.