Partiers Beware! Innocent Explanations for Attending a Party Do Not Negate Probable Cause for Arrest


By: Lizzy Patrick

The Supreme Court Justices reminisced on their party days while deciding District of Columbia v. Wesby,[1] where the Court held that an innocent explanation for being at a party does not negate probable cause for an arrest.[2]

The Fourth Amendment of the U.S. Constitution provides that “no Warrants shall issue, but upon probable cause…particularly describing the place to be searched, and the persons or things to be seized.”[3] The Supreme Court has upheld warrantless arrests, acknowledging that legislatures have consistently authorized warrantless arrests based on probable cause, despite judicial preference for a warrant.[4] The Supreme Court adopted a “totality of the circumstances” approach to probable cause determinations, reasoning that such determinations should not be based upon rigid, technical methodologies.[5] Since probable cause must always be particularized,[6] isn’t there an argument to be made that police did not comply with this when they arrested twenty-one people at a party in a vacant house?[7] The Supreme Court held otherwise in Wesby.[8]

In Wesby, police received a noise complaint around 1:00 a.m. at a house that was apparently vacant for several months.[9] When police arrived, the people in the house immediately ran away and hid.[10] Once someone finally answered the door, the police smelled marijuana.[11] The officers entered the house and saw empty beer bottles and liquor cups scattered across the floor, and noticed that the living room was converted into a makeshift strip club.[12] Additionally, police stumbled upon a naked woman and several men in an upstairs bedroom with only a mattress.[13] Other than the lone mattress, some food in the refrigerator, and a few toiletries in the bathroom, nothing suggested that anyone lived the house.[14]

Some of the partygoers said they were invited to a bachelor party at the house, and some said they had permission to attend from the host—a woman named “Peaches.”[15] However, neither the bachelor nor Peaches were at the house.[16] Police used a partygoer’s phone to call Peaches, who reluctantly but eventually admitted that she did not have legal permission to use the house.[17] The issue before the Court was whether the police had probable cause to arrest the partygoers who claimed an innocent belief of legal permission to be on the property.[18]

The Supreme Court held that the police had probable cause, and even if they lacked probable cause, they had a reasonable basis to believe probable cause was present.[19] The Court considered the partygoers’ actions against Peaches’ admission of not having legal permission to use the property, and found that the totality of the circumstances—i.e., immediate flight at the sight of police, the vacant condition of the house, the makeshift strip club, and the smell of marijuana—provided a reasonable basis upon which police could conclude that probable cause was present.[20] The Court reasoned that the police could reasonably infer that the partygoers took advantage of the vacant house.[21] Importantly, because each of the partygoers acted suspiciously, the Court found that probable cause was particularized as to all twenty-one of them.[22]

The Wesby decision broadens the scope of police authority to make probable cause determinations. It is worth noting that police are not required to always be correct, but are required to always be reasonable.[23] Thus, even if police mistakenly believe that probable cause is present, the totality of the circumstances may provide a reasonable basis that justifies finding probable cause.[24] In the end, it is incumbent upon people to not only party responsibly, but to understand that police have wide latitude to determine whether probable cause is present to make an arrest. For that reason, a good rule of thumb is to not act suspiciously and to be respectful during any police encounter.

[1] Ann E. Marimow, Justices Recall Their Own Partying Days in Case Over Policing and Arrests, Wash. Post (Oct. 4, 2017),

[2] District of Columbia v. Wesby, 138 S. Ct. 577, 593 (2018).

[3] U.S. Const. amend. IV.

[4] United States v. Watson, 423 U.S. 411, 423-24 (1976) (upholding warrantless public arrests based on probable cause); but see Gerstein v. Pugh, 420 U.S. 103, 120, 126 (1975) (finding that a magistrate is required to make a “timely judicial determination of probable cause as a prerequisite to detention” if a warrantless arrest is made).

[5] Illinois v. Gates, 462 U.S. 213, 233 (1983).

[6] Ybarra v. Illinois, 444 U.S. 85, 91 (1979) (holding that probable cause must be particularized with respect to an individual).

[7] Wesby, 138 S. Ct. at 584 (2018).

[8] See id. at 586.

[9] Id. at 583.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id. at 584.

[18] Id. at 585.

[19] Id. at 582.

[20] Id. at 586.

[21] Id. at 591.

[22] See id. at 593.

[23] Illinois v. Rodriguez, 497 U.S. 177 (1990).

[24] Wesby, 138 S. Ct. at 582; Illinois v. Gates, 462 U.S. at 213, 237-38 (1983).