What Would Jesus Drink?

They say that a prosecutor can get a grand jury to indict a ham sandwich.  That's close to true.

The same is true when cops want a judge to sign a search warrant.  They can pretty much always find someone who'll sign off on even the most vacuous claims of probable cause.

A True Story

Police in Hardin, Texas got a tip.  Reports on just what the tip was conflict.  Dozens of dismembered bodies buried at a farmhouse? Children in danger at that farmhouse? Either way, they got a warrant.

Because when Jesus and 32 angels tell Angel about what's going on at the farmhouse.  The Times reports.

Equipped with a search warrant and cadaver-sniffing dogs, deputies from the Liberty County Sheriff’s Office converged on a home on a narrow country road near Hardin — about an hour outside Houston — in search of a macabre crime scene. The news of a mass grave in rural Texas set off a news media frenzy: throngs of reporters camped outside the home, two news helicopters circled above, and cable news stations flashed alerts that up to 30 bodies had been found.

CBS News:

Liberty County Sheriff's deputies, the FBI, DPS officers and the media converged on the town of Hardin looking for signs of a mass grave. A search at the home turned up nothing.

Because, of course, you have to check.

I mean, when someone calls with that sort of story, and offers a credible explanation for how she knows . . . .

Oh, you wondered about the credible explanation?

The caller, a woman who identifies herself as "Angel," spoke to CBS.

They up-front asked me how I got the information, and I am a reverend. I am a prophetess and I get my information from Jesus and the angels, and I told them that I had 32 angels with me and they were giving me the information and then it went from there.

I mean, who could doubt?

* * * * *

I lived in Texas for 12 years.  I went to law school there.  I know how deeply ingrained in much of the populace is the idea not only of Jesus as a personal savior but the idea that Jesus speaks directly to people.

And the cops went to check?

Jesus and 32 angels told me so?

And some judge signed off on it?

Because there was, after all, probable cause.  We know that, because the Fourth Amendment says you need probable cause for a warrant.

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.

Now, you might think if you haven't been paying attention or if you still believe in those things they tried to tell you when you were in grade school (or law school) that "probable cause" means something like "probably."  You might think that.  You would be wrong.  I've written this a couple of times now.

The Supreme Court says "probable cause" is enough cause for a reasonable person to believe it, but maybe not enough to make it more likely than not. Got that? When it's probably not true but reasonable people would believe it anyway, that's probable cause. Really. Honest. Here's the language from Texas v. Brown (admittedly a plurality opinion, but everyone accepts it).

As the Court frequently has remarked, probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would "warrant a man of reasonable caution in the belief," Carroll v. United States, 267 U. S. 132, 162 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A "practical, nontechnical" probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U. S. 160, 176 (1949).

Probable cause means a "probability."  There's a chance that the Sun will explode tomorrow ending the very existence of our planet.  It's really unlikely.  Astronomers figure the Sun should keep roughly as it is for another 4-5 billion years.  But, hey, there's a probability.  Just a verrrry teeny one.  Probable cause.

Another True Story

Years ago, I was in the court of appeals arguing about a search warrant.  I don't remember any of the details, but the broad fact is that the warrant was based on nothing even within airplane distance of probable cause. 
The most deferential judge shouldn't have signed it.
The trial judge agreed and suppressed the drugs or whatever it was that the cops found.
The state appealed.
And one of the judges on the court of appeals asked what time Judge X (I'm being purposely and atypically polite by not identifying the judge) had signed off on it.  The answer was, as I recall, something like 7 p.m.  The three judges on the panel looked at each other and thought

Yeah, they do that in Texas, too.