Suppose that a magistrate is asked to issue a search warrant for a particular residence. Based on the information presented to her by the applicant, the magistrate believes that there is approximately a 25% chance that a search of the residence will result in the discovery of evidence of the crime under investigation. When deciding whether to issue the warrant, does it matter what the crime is? Should the magistrate interpret probable cause differently when the crime is the kidnapping of a young child than when the crime is the counterfeiting of Gucci purses? The same issue arises for an officer considering whether he has probable cause to arrest a suspect. There are good arguments on both sides. Requiring a different degree of certainty for different crimes would complicate the magistrate’s or officer’s job, and there is little agreement on which crimes are most serious, meaning that the probable cause standard would vary from one officer or judicial official to another. On the other hand, the ultimate command of the Fourth Amendment is reasonableness, and it seems reasonable to allow the police more leeway in investigating serious crimes. The Supreme Court has never answered this question. Some of its decisions arguably support a unitary interpretation of probable cause. See, e.g., Dunaway v. New York, 442 U.S. 200 (1979) (“The [probable cause] standard applie[s] to all arrests, without the need to ‘balance’ the interests and circumstances involved in particular situations.”). But others emphasize that the probable cause standard is a compromise between [...]
Faculty Coordinators
