Probable Cause Pluralism.

AuthorCrespo, Andrew Manuel


Of the fifty-four words in the Fourth Amendment, the two that matter most are the least understood--probable cause. Doctrinally and conceptually, "probable cause lies at the heart of the [F]ourth [A]mendment" for one simple reason: the requirement to demonstrate probable cause--or its junior partner, reasonable suspicion--constitutes the core substantive constraint on police power in the United States. (1) It is "the line of distinction" between legal and illegal searches and seizures. (2) And yet, two centuries after the Supreme Court first applied the phrase, scholars continue to describe it as "elusive," "hopelessly indeterminate," and "shrouded in mystery." (3) Courts, meanwhile, suggest it might just be the most confusing "two-word term in American law." (4)

The challenge, to be clear, is not figuring out the basic question that probable cause poses, for on that score there is general agreement: to satisfy the Fourth Amendment's core substantive requirement, the government must point to facts that provide some basis to believe that "an offense has been or is being committed" by the person to be searched or seized or "that evidence bearing on that offense will be found in the place to be searched." (5) In the moment when a search or seizure is conducted, those facts will be assessed by a law-enforcement officer in real time, with the Fourth Amendment hopefully shaping her conduct, even if she does not have its precise requirements consciously in mind. (6) Whatever may be going through the officer's head, however, a judge must at some point assess her conduct--either before the search or seizure takes place (as occurs when a judge reviews a warrant application) or after the fact (as occurs when a judge rules on a suppression motion). (7) In either setting, it is "the magistrate, not the officer, who is to judge the existence of probable cause." (8) The essential task of probable-cause jurisprudence is thus to guide the judge through that decision--and to help everyone else predict how a judge might rule.

That is where the core problem lies. Existing probable-cause jurisprudence says almost nothing at all about either the methodology or the substance of the judge's inquiry: how should the judge go about determining the strength of the government's assertions? And what counts as strong enough? (9) With striking candor, the Supreme Court has avoided answering either of these essential questions, insisting instead that "[a]rticulating precisely what 'reasonable suspicion' and 'probable cause' mean is not possible." (10) Rather, the most explicit guidance the Court has offered is to say that judges should consider the "totality of the circumstances" and then make "a practical, common sense decision," yea or nay. (11) Probable cause, in other words, "is whatever a magistrate says it is." (12)

This is a problem in at least two respects. For one, a jurisprudence premised wholly on raw and unstructured "common sense" will struggle to yield a predictable and consistent body of decisions. It will struggle, in other words, to produce "any law worthy of the name," let alone a body of law clear enough to guide the civilians it protects or the state actors it governs. (13) Equally troubling, an amorphous approach to probable cause will leave judges ill equipped to stand as "guardians of the Bill of Rights," (14) in "between the citizen and the police." (15) After all, as the late Justice Scalia observed, judges armed with only their own gut instincts will ofen lack the "judicial courage" to push back against the state's constant demands for greater police authority--demands grounded in the ever-pressing and ever-urgent need to ensure the community's safety. (16)

In short, an infinitely malleable approach to probable cause raises both rule-of-law and civil-liberty concerns. Recognizing as much, Anthony Amsterdam, in his seminal lectures on the Fourth Amendment, warned against "a [F]ourth [A]mendment with all of the character and consistency of a Rorschach blot." (17) And yet, as Amsterdam reminds us, the Supreme Court also has good reason to shy away from overly structured doctrinal frameworks. Any effort to impose the "discipline of rules upon the richness of events" risks producing a doctrine "improperly insensitive to the practical complexities of life," particularly given the "mindboggling" diversity of law-enforcement/civilian interactions. (18)

Citing this fear, the Supreme Court has largely opted for the blot. It defines probable cause as "a fluid concept" that can only ever be understood "in particular factual contexts." (19) And it accordingly rejects efforts to develop "a neat set of legal rules" in this domain, a task it deems "not readily" attainable, "or even usefully" pursued. (20) Scholars routinely criticize the Court for this approach. The most forgiving view it as a "necessary evil," ofered up by a Court struggling to balance competing demands for doctrinal flexibility and structure--the animating dilemma of probable-cause jurisprudence. (21)

This Article takes that dilemma by the horns and aims to resolve it. Its goal is to offer a conceptual and doctrinal reconstruction of probable cause that is both supple and substantive enough to meet the Fourth Amendment's many demands--to imagine a Fourth Amendment with more analytic structure and precision than the one we have now, but with no more than we need or than would serve us well. To achieve this goal, the Article reimagines probable cause as an interlocking set of analytic frameworks and substantive standards, each tailored to the unique epistemological and normative challenges posed by different types of Fourth Amendment events. The result is a pluralist array of doctrinal frameworks that, taken together, can meaningfully assess the "many shapes and sizes" of evidence at issue in Fourth Amendment analyses and the "many different types of persons" proffering such evidence to the courts. (22)

One primary obstacle stands in the way of this proposed pivot to probable cause pluralism. The Supreme Court routinely insists that, whatever probable cause means, it ought to entail a single analytic method applicable "to every inquiry" (23) and a "single, familiar standard" (24) by which the product of any such analytic method should be assessed. It espouses, in other words, a commitment to probable cause unitarianism. That unitary approach, however, is neither logically nor doctrinally required. Indeed, individual terms of art in the Constitution (and elsewhere) can and do mean different things in different settings--a point that will be appreciated by anyone who has studied the various doctrinal frameworks, tests, and tiers of scrutiny that inform phrases like "equal protection," "due process," or "free exercise." (25)

Lacking any clear textual or historical definition of its own, the phrase "probable cause" is every bit as open-textured as these other terms of art and is every bit in need of sound analytical and doctrinal exposition. (26) This Article is thus ultimately a project of conceptual and doctrinal construction--an effort to create an analytical framework for probable cause where there currently is none. By necessity, that framework must eschew a single account of probable cause. "One simple rule will not cover every situation." (27) Rather, if probable cause is to mean anything at all, it must come to mean many things at once.

The argument presented here does not proceed on a clean slate. It engages myriad scholarly debates over probable cause's meaning and its method that have unfolded over the past half century. For the first time, however, this Article attempts to unite those discrete and sometimes competing accounts into a single, comprehensive theoretical framework. One advantage of such an integrated approach is its ability to assess the constitutionality of any given search or seizure-from the warrantless police tactics that define modern street policing, to the more mundanely programmatic searches conducted by city health inspectors, to all the many cases between and beyond those two examples, including many that are typically examined under the Fourth Amendment's "reasonableness clause." (28) Indeed, once probable cause emerges as a pluralist concept in its own right, the much discussed (and often distracting) distinction between the Fourth Amendment's warrant clause and its reasonableness clause begins to fall away, enabling a single conceptual framework to assess all Fourth Amendment searches and seizures. (29)

Of course, to state this ambition is to underscore the central challenge confronting this project: the universe of searches and seizures "can vary almost infinitely. " (30) This Article thus starts by bringing some order to that wide-ranging diversity by making two initial and important moves. First, it organizes the wide world of Fourth Amendment events into a manageably discrete taxonomy that surfaces the essential epistemological and normative challenges underlying any given Fourth Amendment case. Second, it navigates those epistemological and normative challenges by disaggregating the probable-cause inquiry itself into three basic questions--three analytic axes--that structure every Fourth Amendment analysis and outline how that analysis ought to proceed.

The first of these two moves is both methodologically and normatively significant. For starters, it rejects the Supreme Court's oft-stated and animating fear that judges simply cannot "comprehend the protean variety" of the Fourth Amendment's terrain. (31) The argument here, by contrast, proceeds from--and substantiates--an alternative premise: searches and seizures, for all their undeniable variability, "fall into readily identifiable patterns, which practitioners in the field can easily sort into... archetypal cases." (32) Indeed, the Court itself sometimes acknowledges as much, treating certain Fourth Amendment events "as categorically distinct"...

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