MD: RS on totality is way less than preponderance or prima facie case

Proof of the totality of circumstances of reasonable suspicion is less than a preponderance of the evidence or even a prima facie case. It depends a lot on “those who can read between the lines,” the investigating officers. Freeman v. State, 2021 Md. App. LEXIS 53 (Jan. 28, 2021):

The Burden Of Persuasion Is Less Than A Preponderance Of The Evidence

With respect to the burden of persuasion, moreover, the case law has been careful to point out that probable cause means something less than “more likely than not.” “More likely than not” is, by definition, the preponderance of the evidence standard of certainty (50% plus). As the Supreme Court definitively described the standard in Illinois v. Gates, 462 U.S. 213, 235, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983):

Finely-tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate’s decision. While an effort to fix some general, numerically precise degree of certainty corresponding to “probable cause” may not be helpful, it is clear that “only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.”

The burden of persuasion is also less than “a prima facie showing.” See also Florida v. Harris, 568 U.S. 237, 243-44, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013); Kaley v. United States, 571 U.S. 320, 134 S.Ct. 1090, 188 L.Ed.2d 46 (2014) (“Probable cause is not a high bar.”).

In State v. Johnson, 458 Md. 519, 535, 183 A.3d 119 (2018), the Court of Appeals made it indisputable that the establishment of probable cause does not require proof to the “preponderance of the evidence” level:

The quanta of proof appropriate in ordinary judicial proceedings are inapplicable to the probable cause determination; consequently, finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the probable cause determination. In short, probable cause is not a high bar.

After referring to the special expertise and training of both investigating officers, Judge Storm thoroughly summed up the many facets of police observation of the appellant’s unusual behavior and of the similarly unusual behavior of both the first likely buyer from the appellant at MOMO’s and the almost identically unusual behavior of Joshua Wyatt at the Harp & Fiddle. Based on the totality of the circumstances, including the conclusion reached by the two trained officers, he ruled that they had the probable cause necessary to justify the warrantless arrest of the appellant. Accordingly, the motion to suppress the evidence was denied.

In arguing before Judge Storm, the State emphasized the special skill and experience of the two investigators and recommended reliance on their conclusions. When one looks, for instance, for helpful conclusions about a problem as convoluted as the Covid-19 pandemic, one looks not to untrained laymen but to trained and experienced epidemiologists. That wisdom also abides in looking at criminal investigations. If one wants to understand some of the strange and subtle actions exhibited by the appellant on the night of April 16, one should seek out the experienced eye of the investigative specialist who has handled hundreds of such cases before. We need the skill of those who can read between the lines.