Whither Probable Cause

Now you see it. Now you don’t. The vanishing and disappearance of probable cause.

As a tyro prosecutor, slogging through the criminal courts system, I’d often joke that the definition of probable cause was “He probably did it” because it seemed that whenever the standard was required for arrest or search, it was always miraculously and sometimes magically met. Probable cause or PC hereinafter (before its more contemporary referencing) denotes the belief and suspicion framework that established the basis for initial and incipient law enforcement involvement. The Fourth Amendment of the Constitution refers to it as, again, that initial threshold.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. [Emphasis supplied.] U.S. Const. amend. IV.

PC has been taken to mean those conditions and facts that are present, say in the case of PC to arrest, when an officer has knowledge of such facts as would lead a reasonable person to believe that a suspect is committing, has committed or is about to commit a crime. And further, the officer must be able to articulate the facts and circumstances forming the bases for such probable cause. Er, theoretically, that is.

So, what seems to be the problem? Simple. Enter the mystical, magical world of legal semantics and euphemisms. My beloved profession gave you not only PC but reasonable doubt, reasonable suspicion, prima facie, preponderance of the evidence, proof evident and presumption great, clear and convincing – all designed to denote various articulable levels and gradations of proof that are supposed to be readily accessible to the public. Let me give you an example.

Let’s assume arguendo I ask you what you ate for breakfast and you replied, “A bagel. Toasted.” Let’s assume further I demanded that you prove it. Prove it how? By what standard? You could enlist a PC standard of proof. Or perhaps provide a prima facie case of your breakfast fare. You might up the degree of proof by proving your breakfast case by the preponderance of the evidence, where it would me more likely than not that you ate the referenced bagel. Or, to really impress your interrogator, prove you consumed the item beyond and to the exclusion of every reasonable doubt. If this is confusing, join a very large club.

But let’s make this even more complicated. And I refer to the aforementioned definition of a constable’s necessity and ability “to articulate the facts and circumstances forming the basis for probable cause.” Let’s take a DUI roadblock where drivers are corralled into an area wherein each is inspected for evidence of illegal inebriety. Or a border search where suspected illegals are stopped and isolated en masse. The officer(s) made no prior determination, no evidence evaluation. Nothing. Everyone was “dragnetted” and ordered into an area and therefore presumed guilty. Whither probable cause?

Stop and frisk (or stop, question and frisk) is the source of great controversy and media attention, especially here in New York. The Supreme Court in Terry v. Ohio392 U.S. 1 (1968), gave us the Terry Stop that was codified by legislatures. Stop and frisk is not profiling (which, by the by, is not per se verboten). The criterion employed to stop and detain a suspect – as opposed to arresting them – is  reasonable suspicion. Now, this is in no wise meant as a tutorial on detention law but rather an exhibition of the ambit and range of the tissue thin compartmentalization and variations of juridical euphemism.

And let’s wade into the even more complicated. Think of accident investigations, fingerprinting, lineups, drug sniffing dogs, drug courier profiles (to be distinguished from the more offensive and in fact illegal forms of “profiling,” such as stopping someone merely because of race or ethnicity), cyber crimes, just to name a few. What probable cause was and is required then? And now, think what happens if a law enforcement agent merely thinks or suspects you’re a terrorist or involved in alleged terrorism or anything “shady.” Probable cause requirements are being whittled and pared and shredded. But what about the Fourth Amendment, court orders and judicial review? And what was that business about no warrants issued without probable cause? As we have seen, the public has been so frightened (and deservedly so) by the specter of another 9/11 that these constitutional formalities are seen as trifling due process etiquette. After all, it’s axiomatic that the Constitution is not a suicide pact.

The times they are a changin’. Does this sound familiar?

The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual’s Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.

The administration wants to add just four words — “electronic communication transactional records” — to a list of items that the law says the FBI may demand without a judge’s approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user’s browser history. It does not include, the lawyers hasten to point out, the “content” of e-mail or other Internet communication. [Washington Post]

Can they even do that? (I believe they just did.)

And one more wrinkle. With the advent of “Minority Report” predictive policing utilizing algorithms and the like such as the UK’s CRUSH (Criminal Reduction Utilising Statistical History) as well as NSA mass vacuuming of metadata, not to mention the data and information that you’ve most probably consented to being uploaded and utilized by virtue of your mobile phone and cloud agreements, citizens may very well have consented to the government’s access to everything and anything thus obviating the necessity of even advancing a preliminary probable cause determination.

Cue Taps. Probable cause is sadly becoming an historical vestige, an anachronism. Diluted and disposed of, whose utility and protections have been obliterated through our hysteria over terrorism and the public’s acceptance of and habituation to ubiquitous, Panopticon surveillance.

Probable cause. So long, old friend.

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