What is Probable Cause, and Why Should We Care?: The Costs, Benefits, and Meaning of Individualized Suspicion

Taslitz defines probable cause as having four components: one quantitative, one qualitative, one temporal, and one moral. He focuses on the last of these components. Individualized suspicion, the US Supreme Court has suggested, is perhaps the most important of the four components of probable cause. That is a position with which he heartily agree. The other three components each play only a supporting role. But individualized suspicion is the beating heart that gives probable cause its vitality

Probable Cause To Arrest

Probable cause to arrest is an exceedingly difficult concept to objectify.\u27 The traditional definition was stated in Beck v. Ohio as follows: [W]hether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. Judicial opinions frequently manifest empathy with the policeman\u27s plight in attempting to apply this vague standard. While the standard does not mean that the arresting officer must have evidence that would satisfy a fact finder of guilt beyond a reasonable doubt, probable cause is clearly more than mere suspicion. \u27 It is axiomatic that probable cause can never be established by the fruits of illegal search, and the good faith of the officer can add nothing to facts that otherwise do not reach the level of probable cause. Nevertheless, police, by virtue of their experience and expertise, may be able to identify certain activities as indicative of criminal behavior that might not appear so to a judge or layman. The viewpoint of an experienced officer, therefore, may be taken into account in determining the presence of probable cause

Probable Cause with Teeth

The killing of George Floyd, along with other high profile cases of police officers using fatal force against Black Americans, has led to widespread protests and prompted calls for legal reform. One criticism of the legal system is that police officers often stop, interrogate, and arrest Black Americans for activities that would rarely lead to intervention if engaged in by white individuals. This disparity calls into question whether police officers have been arresting individuals with the quantum of suspicion of wrongdoing that should be required by law. The Fourth Amendment requires police to have probable cause that a crime has been committed prior to conducting an arrest. The United States Supreme Court, however, has provided little guidance on exactly how much certainty of guilt is required to establish probable cause, stating only that probable cause is more than a mere suspicion of wrongdoing, but less than the level of proof needed to convict. This very broad standard was significantly narrowed and lowered in 1983 when Justice Rehnquist, speaking for the plurality in Texas v. Brown, opined that probable cause “does not demand any showing that such a belief be correct or more likely true than false.” Many lower courts have repeated Justice Rehnquist’s comment on probable cause as if it were settled law. In Probable Cause with Teeth, Professor Cynthia Lee argues that lower courts should stop embracing this understanding of probable cause for several reasons. First, Justice Rehnquist was only able to get three other Justices to sign onto his opinion, therefore, his statement is not binding law. Moreover, a majority of the Court has never held that the standard for probable cause was as low as Justice Rehnquist claimed it to be. Second, Professor Lee argues that Justice Rehnquist’s view of probable cause is misguided as a matter of history, precedent, and logic. Third, Justice Rehnquist’s view of probable cause allows for, and perhaps even fosters, racial disparity in arrests because implicit or explicit bias can impact whether officers stop, arrest, or simply warn an individual. She concludes that a more robust showing should be required for probable cause

In the Absence of Scrutiny: Narratives of Probable Cause

This Article reports on a set of roughly thirty interviews with federal magistrate judges. The focus of the interviews was the impact of the Supreme Court case, United States v. Leon, on the behavior of magistrate judges. Leon, famously, put in place the good faith exception for faulty warrants that were obtained by the officers in good faith. The insertion of this exception diminished significantly the incentive for defendants to challenge problematic warrant grants. That effect, in turn, could have diminished the incentive for magistrate judge scrutiny of the warrants at the front end of the process. We do not find any indication of diminished scrutiny. What we do find, however, is a highly ritualized and formalistic process for the evaluation of warrants where calculations of probabilities are viewed through a legalistic rather than a pragmatic lens

The Reasonableness of Probable Cause

Probable cause is generally cast in judicial opinions and the scholarly literature as a fixed probability of criminal activity. In the weeks before the September 11 attacks, FBI headquarters, applying such an unbending standard, rejected a warrant application to search Zacarias Moussaoui’s laptop computer. This article, which begins with an analysis of the Moussaoui episode, argues that the probable cause standard should be calibrated to the gravity of the investigated offense and the intrusiveness of a proposed search. Tracing the evolution of probable cause from the common law through its American development, the article argues that the Supreme Court’s current insistence on a “single standard” lacks historical support. Probable cause should be recast within a reasonableness framework, embracing the common sense view that not all searches equally trench on privacy concerns and not all crimes equally threaten the social order

Probabilities in Probable Cause and Beyond: Statistical Versus Concrete Harms

Colb surfaces the statistical versus concrete harms disparity in judicial (and more broadly, human) reactions to probability-based behavior. In particular, it identifies the disparity in case law that either explicitly relies on the distinction as a normatively proper ground for legal decisions or that operates in a manner best explained by resort to this distinction. Though the paper is primarily descriptive, it suggests, tentatively, that lawmakers, judges, and juries should exercise greater care and deliberation in applying what may seem like a natural approach to distinguishing between permissible and impermissible harm. It is thus a plea for conscious consideration of the statistical-concrete distinction, which is sometimes applied in an unthinking fashion