Cybersurveillance without restraint? The meaning and social value of the probable cause and reasonable suspicion standards in governmental access to third-party electronic records.

• Author: Taslitz, Andrew E.
• Position: ABA Criminal Justice Standards on Law Enforcement Access to Third Party Records - III. The Meaning and Social Value of Probable Cause and Reasonable Suspicion A. The Quantitative Element: Standards of Proof 3. The Flaws in Kerr's Argument Against Having a Probable Cause Standard of Proof iv. The Absence of a Standard of Proof Improperly Cedes...

iv. The Absence of a Standard of Proof Improperly Cedes to Police Excessive Role-Based Authority

Kerr similarly ignores the distinction between rule-based authority and role-based authority. (160) Rule-based authority draws its legitimacy from fairly detailed, precise rules, generally crafted by a legislature. (161) Rule-based authority is most needed when aggressive action is required to enforce the law against serious offenders--when the state's need for the right to use force is at its peak. (162) Rules limit police discretion and prod police toward specific types of conduct. (163) Rules constrain officer behavior by fostering officer internalization of the rules and by threatening sanctions against the officer or his case should he not comply with the rules' mandates. (164) But these limits on police abuses also permit the use of the force and authority that policing of serious crime often requires. (166)

Role-based authority, by contrast, derives from an official's status--her role--a status justified by the official's special skills and need for flexibility. (166) Role-based authority allows for tailoring responses to the individual needs of specific cases. (167) In the case of police, modern social norm theorists, (168) in a variation of "broken windows theory," (169) argue for embracing role-based police authority as a way of reducing signs of disorder in a neighborhood. Reduced disorder encourages community coherence and other factors that discourage crime. (170) Creation of a series of new low-level offenses, such as curfews, give police the "legal hook" to exercise this authority, but the statutes are intentionally broadly crafted to give police enormous flexibility. (171) That flexibility is needed if police are to help keep neighborhoods clean and orderly without routine resort to force. (172) Role-based authority implies police partnership with the community to serve community needs for order and respect. (173)

The problem with social norm theories, argues policing scholar Eric Miller, is that they enable the same actors--the police--to exercise both rule-based and role-based authority. (174) That aggregation of power has numerous ill effects. Notably, rule-based and role-based norms can conflict in a given situation, forcing police to choose. (175) Too often, police are ill-fitted to apply role-based authority effectively. (176) They are trained primarily in a militaristic style and are more comfortable with sanctioning others for apparent violations of rules than with the community-solidifying function that role-based authority is meant to serve. (177) When seeming conflicts arise between the need for ostensibly rule-based and role-based action, police are likely to opt for the seemingly rule-based, sanctioning-of-others option. (178) But because police also have role-based authority, they may act in a discretionary fashion while serving the rule-based role of enforcer. (179) Police may therefore serve neither function effectively. (180)

Indeed, police investing energy into attempts to solidify community norms may divert resources from stricter rule-based law enforcement. (181) Yet police poorly exercising role-based discretionary authority can undermine community trust, promoting the very community dissolution that role-based authority is designed to counter. (182) The resentment that many poor, minority communities feel toward the police, argues Miller, is partly due to this problem. (183) Police may also use their discretionary authority as an excuse for developing justifications to go after the higher level offenses embraced by rule-based action. (184) The new lower level offenses thus become just another tool for police serving their more traditional role. (185) The result can be both underpolicing--in the sense of too little effective police presence as community partners--and overpolicing--in the sense of too much police use of rule-based force in situations requiring a subtler approach. (186)

This dangerous mixture of rule- and-role-based authority in the single institution of the police has, Miller deftly recounts, reached the United States Supreme Court in its articulation of Fourth and Fifth Amendment doctrine. (187) For example, the Court has increasingly defined reasonable suspicion, and even probable cause, as requiring case-by-case judgments made largely by deference to officers' discretionary authority. (188) Yet officers use that authority to exercise force--to stop, arrest, and search--precisely the kind of situation that most requires rule-based constraints on officers' conduct. (189) Deference to police autonomy also corrodes the requirements that officers be able to explain and justify their force-based privacy invasions in detail to promote accountability. (190) The requirement that police act only based upon "articulable suspicion" (191) thus degenerates into whatever suspicion the officer's "experience" tells him is justified. Similarly, the Court's refusal to review officer search-and-seizure decisions to determine whether they were motivated by racial bias or stereotyping shields officers from effective review. (192) The Court has even gone so far as to ignore usual or standard police practices in favor of the practices that an officer in fact chooses based upon his own individualized experience and judgment. (193) These examples illustrate the poor fit between the role-based authority the Court broadly grants to police rather than limiting it to the kinds of situations where discretionary, case-by-case judgment is most wise. (194)

The vaguer the standards articulated to guide action, the greater the sphere of role-based authority. (195) The Court's abandonment of the "two-pronged" Aguilar-Spinelli test, which prohibited courts from even considering weak informants' tips in the probable cause calculus, in favor of the murkier Gates "totality of the circumstances" test that weighs all evidence is one illustration of a move toward role-based authority. (196) The Court's insistence on barring any standard of proof for probable cause decisions likewise enhances officers' discretionary, role-based authority. (197) Kerr thus ignores the fact that standards of proof do not only guide the courts. Just as prosecutors' decisions on whom to charge with what are affected by the beyond a reasonable doubt standard, so should police decisions of whom to arrest and search and where would likely be so influenced. (198) The absence of a standard of proof or the existence of an implied one that is seen as infinitely flexible may tempt ideologically energetic law-and-order courts to defer to police judgments, as many commentators argue the current Court is doing. (199) Likewise, such courts may vary the degree of justification required for police action so as to favor law enforcement interests routinely, if not completely, over individual ones in the interests of promoting law and order. (200) The effect is to vest police with great discretion, offering room for police to embrace the role-based model of policing. (201) That limits the value of probable cause (and reasonable suspicion) in constraining the state's use of force. (202) Kerr's failure to address the rule- versus role-based distinction is also but one example of his ignoring the social value of standards of proof outlined earlier in this section. (203) Kerr thus looks solely to the purported costs of standards of proof without acknowledging or weighing them against the benefits.

Kerr's most egregious error, however, is a different one: his assumption that the probable cause inquiry inherently involves an assessment of objective probabilities. It does not. Rather, the assessment is one of subjective probabilities, assessed in light of rational bases for inference, an entirely different concept.

4. Subjective Probability and Probable Cause

   i. General Principles

   There are many different conceptions of probability, but two are most relevant here: objective or frequentist versus subjective probabilities. (204) Objective probabilities look to empirical data to determine the frequency with which similar events occur. (205) For example, if four out of every ten randomly selected individuals had pollen allergies in a given location, there would be a 40% likelihood that any randomly selected person will have pollen allergies.

   But objectivist approaches to probability can be applied only to groups or to randomly selected individuals when we know nothing more about each individual than that he fits in a particular category, in the above example, living in a particular location. (206) Objectivist probability cannot tell us the likelihood that a future unique event will occur or that a past unique event has occurred. (207) For example, being told that there is a 10% chance that smoking will cause lung cancer does not tell you the probability that a particular smoker, John, has lung cancer. (208) John may be young, hale, from a genetically blessed family of cancer-free smokers, or he may have other individual attributes that make him more or less likely to develop cancer relative to a randomly selected smoker. (209) That does not mean that the objective data is irrelevant, but it does mean that we cannot rely on the 10% figure as accurately reflecting John's unique risk. Nor would John's developing or not developing lung cancer objectively confirm or refute any judgment of his risk. (210) That is so because John is a unique person. We cannot clone physically, emotionally, intellectually identical Johns, with identical life experiences, in large numbers, have them smoke, and see how many of them would develop lung cancer--the only way of determining empirically verifiable objective probability.

   But we can make a subjective judgment. Subjective probability judgments "represent the degree of rational belief that the speaker holds about the likelihood of occurrence of the event in question." (211) Subjective probability judgments...