Probable Cause Hearings

A person, who is in custody, is entitled to probable cause hearing within 48 hours of arrest if not arrested on an arrest warrant (in which, a judge would have already determined that there is probable cause).  The probable cause hearing is often held in conjunction with the First Appearance hearing. 

What evidence can a judge rely on to determine if there is probable cause?


A judge can, and usually does, rely on a sworn complaint, affidavit, deposition under oath or testimony under oath to determine whether there is probable cause.  This is typically done by the judge reviewing the arrest report alone.

What if there is no probable cause?

Sometimes, the arrest and booking report leaves out probable cause for the charged offense.  For example, a person may be arrested for possession of more than 28 grams of marijuana, but nowhere in the police report does it mention the amount of marijuana that was seized.  In that case, the State can ask for a 24 hour continuance of the probable cause hearing if the judge determines that "extraordinary circumstances" exist and 24 more hours if extraordinary circumstance still exists.  So, in the scenario above, the prosecutor could ask for a 24 hour continuance to bring the detective in to testify to the amount of marijuana that was seized.  Of course, the defense attorney would object and argue that the failure of the officer to include the amount of marijuana in the arrest report was not an extraordinary circumstance. 

If there is no probable cause and no continuance given, the person shall be released unless the State files an Information, in which case the person should be released on his or her own recognizance.
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