No Probable Cause, So Search Away

Orin Kerr is a law professor and a smart guy.  So when he was explaining at the Volokh Conspiracy (in its new home at the Washington Post) just why Magistrate Judge John Facciola of the U.S. District Court in DC was completely fucking wrong in his opinion (opinion, frgodsakes) explaining why he was refusing to issue a search warrant - well, he didn't say "completely fucking wrong."  Instead, he gave this point-by-point, analytical, legal and policy explanation of just how far off the tracks Facciola went.

Which is fine if you're interested in that sort of careful, lawprof thing.  (I am, which is part of why I read much of what the conspirators at Volokh have to say - at least, as long as I can still get at it for free.)  But if you want the down and dirty explanation?  And if you want to know what the real problem is with Facciola's opinion (and maybe why he wrote one), then you come to guys like me.

Start with the story.  

John Wright, who's not just a DC cop but a Narcotics and Special Investigation Division Gun Recovery Unit Officer (NSIDGRUO if you're feeling the need for an initialism), along with one Officer Sheehan, see some guy walking along one February day with an open coat over his hoodie and his right hand in the hoodie's pocket and pressed against his waist.  Sheehan asks the guy if he's got a gun.  The guy says no.  Sheehan asks to see his waistband.  The guy steps behind a car.  Sheehan asks again and the guy runs.

So then there's a chase through the DC highways and byways, streets and alleys.  Eventually the guy is caught, but not before he tosses something away which pretty clearly seems to be the gun that had been in his waistband.  After they get the guy (and the gun) they go back over the route of the chase and come upon a smartphone.  Public spirited citizens that these NSIDGRUOs are, they check out the phone to try and figure out who lost it.  Lo and behold, Wright finds photographs.  And naturally, well, he is trying to identify the owner after all, he 

looked through the photographs and included in the photographs were numerous pictures of firearms.

Bingo, as they say.  Surely the owner is the guy with the gun.  Who's probably a gun runner or a drug dealer or maybe a hired killer out for a stroll.  Surely the answer is in the phone.

So Wright goes to Facciola and swears out an affidavit for a warrant and figures he'll get it because why the hell not and then he'll check out all the goodies in the phone.  

Except, well, except for Facciola who makes two points in his opinion, one impressively right, the other grossly wrong.

1. There's no probable cause to search the phone.
2. It would be wrong to issue a warrant because the law doesn't require one.

Let's look at these in turn.

Item 1.  No probable cause.  Here's Facciola's explanation (footnote deleted).

The Application requests "any and all electronically stored digital media, including but not limited to, evidence of ownership, subscribers, address books, call logs, phone books, photos, images, text messages, contact information, voice mails, images,1 video, and any other stored electronic data." Affidavit at 6. However other than with respect to the pictures and videos there is no evidence to support a finding of probable cause with respect to these broad categories of information. Officer Wright's suggestion of a link between cell phones and "possession of firearms and distribution and possession of illegal narcotics" may be generally true, but he has provided no evidence that this phone has been used for any purpose relating to firearms other than taking pictures. Id. at 5.

When there's no probable cause, there should be no warrant.  Wright wants one.  Can't get it.  End of story.  Or it should be.  And when a judge turns down a request for a warrant - well, it's both unusual and kinda ballsy.

Except that there's also

Item 2.  Can't get a warrant because you don't need one.  See, Facciola follows that explanation of why Wright hasn't made a showing sufficient for a warrant by explaining,

This is, however, an academic discussion in light of the specific facts presented to this Court in the Application.

Academic because they won't get a warrant anyway - because they don't need one.

This Court recognizes that it only has one version of events, which have been presented ex parte. Nevertheless, the Court can only rule on a warrant application based upon what is presented to it. In light of that, the only conclusion that the Court can reach is that Rivers abandoned the phone.

Hey, the cops said it was abandoned, and I haven't heard from anyone else, so it must be true.  And since it's abandoned . . . .

Because Rivers abandoned the cell phone, Officer Wright had a right to search it. See United States v. Nordling, 804 F.2d 1466. 1469 (9th Cir. 1986). It is settled law that a warrantless search of abandoned property does not violate the Fourth Amendment. See Abel v. United States, 362 U.S. 217, 241 (1960) ("So far as the record shows, petitioner had abandoned these articles.... There can be nothing unlawful in the Government's appropriation of such abandoned property."). Thus, because Rivers has abandoned the cell phone, no warrant is needed to search it and the Application is therefore moot.

And so the warrant is denied.

Let's take a moment and step back.

First, Orin's right.  The judge has to issue a warrant if there's probable cause for one.  Refusing to do that has all the legal and policy problems he points to.  But Facciola's probable cause analysis makes clear that he shouldn't have issued the warrant because there is no probable cause.

No warrant.  No search.  Everyone goes home.  (Well, maybe not Mr. Rivers, he of the open coat, the hoodie, and the abandoned gun.  But everyone else.)  

But Facciola's not playing that game.  He's not the detached and neutral magistrate simply telling the cops it's a no go.  Instead, he's joining the team.  Hey guys, he says, I could and should turn down your warrant application because you haven't got probable cause to search.  But then you wouldn't get to search.  Instead, I'll give you an out.  Search away because I'm declaring that you don't need one.

Typically, what happens is that after the cops conduct their warrantless search and find incriminating stuff, the defendant moves to suppress the results because the cops needed a warrant.  The defense makes its pitch, the government makes its.  Then the court rules for the government.  (Actually, the government goes first when challenged if the search is done without a warrant because the gov has to prove it had a right to search anyhow, but that's a quibble.)  The thing is, everyone gets a chance to make the argument.  And once in a while the defense even prevails. (It's rare, but it happens.)

Except this isn't typical.  This time the judge doesn't bother waiting for the defense arguments.  He rejects the defense argument and evidence out of hand because the cops said the phone was abandoned, so it must be so.

The courts talk about warrants issued by a "neutral and detached magistrate."  They don't say anything about a magistrate who puts his thumb on the scale and gives directions about how to search when there's no probable cause.

Law of Rule.

  Facciola Warrant Refusal Opinion

What Would Jesus Drink Part II - The Angels Coming Home to Roost

Hardin, Texas is just a dot on the map, but it's growing at a pretty fast clip.  The population increase from the 2000 to the 2010 census was a spirited 8.5%.  It's now all the way up to 819.  Hardin is in Liberty County, which according to the county website is pretty close to paradise.

Liberty County is home to some of the kindest, friendliest, hardest working folks anywhere. Something is always happening here in Liberty County. Our proximity to Houston, lower cost of living, great schools, strong economy, and the world-class hospitality of communities like Cleveland, Liberty, and Dayton make Liberty County a wonderful place to raise a family or locate a business.

As they say, "Something is always happening [t]here."

A year ago I told this 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?

My broader theme then was the widespread but inaccurate belief that the requirement that police have a warrant based on probable cause before tearing up your home and destroying your life, the guts of the Fourth Amendment, was close to meaningless.

The beauty of a good story is that it has legs.  It can be a gift that, as they say, keeps on giving.

This morning, Scott Greenfield picked up on the latest news.

Via Courthouse News, Joe Bankson and Gena Charlton are suing the sheriff, the psychic and a bunch of news outlets who reported about them "after a self-proclaimed psychic told the sheriff that 25 to 30 dismembered bodies were buried in a mass grave at their home." Needless to say, this tip didn't pan out, much to the surprise of the psychic who calls herself "Angel."

The sheriff's office provided the plaintiffs' address to the news media and repeated the false statement, and it made nationwide and worldwide headlines, according to the complaint.
Bankson and Charlton claim the sheriff's office searched their home unreasonably and without probable cause, inviting the media along to watch the intrusive execution of the search warrant.
The couple claim the sheriff's office was "unreasonable in relying on an uncorroborated tip from a self-proclaimed psychic source" who has proven to be "unreliable and untrustworthy."

Me, I'm not a believer.  Sure, I lived in Texas, went to law school there, practiced law there, and have a mighty fine cowboy hat I wear occasionally.  Even so, I'd think it was unreasonable to rely on "an uncorroborated tip from a self-proclaimed psychic" who got her info from "Jesus and the angels" even without knowing that she had been proved "unreliable and untrustworthy." (Of course, despite the dozen years I lived on the Llano Estacado, I'm basically a Yankee.)

Anyway, let's take a moment to think about the lawsuit and in particular the defendants.  And let me make clear that I'm writing based on the description by Courthouse News which may or may not accurately reflect the complaint, which I haven't seen.

Sue the Sheriff for violating the Fourth Amendment?  You bet your booties.  Sure, it's Texas and sure the Fourth Amendment doesn't really mean much these days.  But tips from Jesus and the angels?  Of course, there's that whole qualified immunity thing and whether a reasonable Texas sheriff might believe it however tiny the probability.  Still, I say go for it.

Sue Angel? Be still my heart.  

The first question was whether to charge her with a criminal violation for filing a false report.  Apparently that was going to depend on whether the authorities could confirm that she was actually a psychic?  (Really, you can't make this shit up.)

Rucks Russell at KHOU 11 news quoted Captain Rex Evans of the Liberty County Sheriff's Department on the subject..

However, that has not been confirmed yet, whether she’s a psychic or not.

Because if she were really a psychic there wouldn't be a case?  But if she was a false psychic there would?  And how would they decide?  Shortly after I moved to Texas, another Yankee - one who'd lived there for several years - told me that the important thing wasn't where you lived but when.  In Lubbock, he said, we were living in the 1700s.  Liberty County?

But Angel?  Sue her?  Lovely idea, but for what, exactly.  Defamation, I suppose, since she accused them of horrible crimes.  Except, more precisely, she said there was evidence of horrible crimes on their property.  In a police report.  It was nonsense, of course, but defamatory?  

Still, that's all beside the point here.  Because there's a real and serious problem with the lawsuit. Here's the first paragraph of that Courthouse News story.

A Texas couple claim in court that they were defamed by major media companies, including The New York Times, Belo Corp., CNN, Thomson Reuters and ABC News, after a self-proclaimed psychic told the sherriff that 25 to 30 dismembered bodies were buried in a mass grave at their home.

See, what the media did was report that there was this wasteful search based on a tip by a psychic that didn't pan out.  Here's a bit from that Times story I linked to above.

But in the end, there was no grave, there were no bodies and there was no sign that any crime had been committed — except, perhaps, the misleading call that created the spectacle in the first place. 

Look, when the Sheriff invites the media along (like Greenfield I have serious reservations about that, but it's beside the point here) on a search for dozens of dismembered bodies, they're gonna report it.  Because it's legitimately newsworthy, even if only in a man-bites-dog sort of way.  And because that's what they do.

But they also report that it was hogwash.

And, speaking both as a lawyer and from the experience of being wrongfully sued for defamation, it ain't defamation. 

Even though some folks will miss the follow-up.  Or believe only the accusations.  Guilty regardless of the evidence.

No, the villains here aren't the media.  And may not be the crackpot Angel, whoever she may be.  The villain is the law that allowed a search warrant based on her tip which she based on the word of Jesus and the angels.  And the forces of authority who turned it into a circus.

Dangerous Dumpsters & the Armed Generalissima

Really, what I wanted to write about was inanimate objects.I wanted to offer a thought experiment.

Imagine, if you will (and if you won't why are you reading this?), a tree.  Tall and broad, stately.  A thing of beauty.  On a bright summer's day, you could sit under it, perhaps with a lover.

A Book of Verses underneath the Bough, 
A Jug of Wine, a Loaf of Bread--and Thou 
Beside me singing in the Wilderness-- 
Oh, Wilderness were Paradise enow!

 
     Omar Khayyam, The Rubaiyat

A lovely thing, really, though with the potential of great danger, naturally.  You know the rule:  Don't take shelter under a tree in a thunderstorm.  And there are the stories:

• Man killed by falling tree branch in Central Park.
• Man killed by falling tree branch in Radnor, PA.
• 13-year-old girl killed by falling tree branch in Yaxley, Cambridgeshire.
• 16-year-old girl killed by falling tree branch in the Teton Wilderness.

Which are just a tiny sampling.  And don't include all those times when drivers run into trees and die or parachutists fall on them and die or idiots climb up and fall off and die or . . . . Really, the Darwin Awards could have a special category.   But really, mostly trees are pretty safe.

So, to get back to the point, imagine a tree.  But don't think of it on that bright summer day with your lover nearby.  And don't think of it as an accident waiting to happen.  I mean, life is a risk.  Anything can happen anywhere.  No, think of the tree as a weapon.

Break off a branch and hit someone with it.  Or stab someone with it.  Take someone and ram him, hard, head first, into the trunk.

Now, another image.  Think of a wooden box.  A big one.  It could be a weapon, just like a tree.  One could smash someone's head into it.  One could break off a piece and use it as a bludgeon or a spear.  One could, perhaps, drop it on someone.

Or, and now we get toward the point, one could place someone inside the box.

Which brings us to the question: 

If someone is put in the box, does the box become a weapon?

If that box is in Waco, Texas, the answer is now "Yes."

Via Walter Reaves, comes word of Mechell v. Texas which demonstrates, as Reaves says, "anything can be a deadly weapon."

That was apparent in the recent case of poor Prisscilla Mechell. She was charged with aggravated kidnapping, injury to a child, and abandoning a child. The facts were that she took a baby from a friends house, and ended up leaving the child in a dumpster where she was later found. Although the child was severely dehydrated, there were no serious or permanent issues. The issue in the case was whether the dumpster was a deadly weapon.
The court had little trouble deciding that it was. The court found that the defendant used the dumpster to hide the baby, and that in doing so there was the possibility that death or serious bodily injury could result. While I'm not surprised,that seems to me to be a totally unwarranted expansion of the definition.

What's striking about Mechell's case is that there was no need to go there.  Mechell ended up with a 48 year prison sentence.  She'd have been well up into the double digits (I'm not up on the details of Texas sentencing law today so I won't try to figure out just how high) without the deadly weapon specification.  So why would the DA bother?

There are, I think, two answers.

1. Because he could.
2. Because he wanted to get a court to say so.

Here's the relevant Texas law as set out in the court's opinion.

A deadly weapon, as applied to this case, is defined as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." TEX. PENAL CODE ANN. § 1.07(a)(17)(B) (West 2011).

From which, the court of appeals in Waco concluded, a dumpster is "capable of causing death or serious bodily injury" because a person abandoned in one might die or be seriously injured. Which is surely true.  But is also a major screw up.  By focusing on whether harm could occur in a dumpster, the court lost track of the issue of causation.

Because the simple fact is that the dumpster as inanimate box, couldn't cause harm.  The cause of harm was abandoning the child.  Causation matters.  (See here, for instance.)  Reaves again.

It was the act of abandoning the child that caused the injury, and the dumpster was simply the place where he was left. Under the court's logic, any place the child had been left could be a deadly weapon. I suppose that if a parent runs off and leaves their children for an extended period of time, their house then becomes a deadly weapon.

And don't think it won't happen.

Which brings us back to the District Attorney.  Maybe it was a power play.  (Let's stack up the charges and make them as bad as possible because we can.)  Or maybe it was an effort, at Mechell's expense, to establish some really awful law to use in the next case.  Offensive either way.

But then, so are the trial and appellate courts for buying into it.  

Except, of course, a child was hurt.  And as they like to say,

Bad facts make bad law.

* * * * *

That's the post I was going to write.  Up until the moment I saw this CNN story via Howard Bashman's post.

Let me back up for a moment.  I've made this point before (here, for instance).

I love westerns, and the gunfight (really it was a duel) is a classic scene with which I'm comfortable and in which, when I was younger, I repeatedly fantasized a role for myself. But I grew up a Jewish kid from New York, and I don't like guns.

I had and played with lots of cap guns and an air rifle when I was a kid. I've shot a .22 a couple of times. I've held handguns with varying degrees of pleasure/fascination (mostly depending on my age). I've learned something about how firearms work as a criminal defense lawyer. But I grew up a Jewish kid from New York, and I don't like guns.

I think we'd be better off if they were completely banned. I hate the Second Amendment. I'm a fan of all sorts of gun control. Heck, I grew up a Jewish kid from New York, and I don't like guns. But I try and be honest about these things.The Second Amendment is part of the Bill of Rights. As such, it has as much clout as, say, the Fourth or the Eighth, both of which I like a great deal. It's the law of the land. And we're stuck with it.

 

I wrote that, as you'll see if you follow the link, in a post arguing that the Second Amendment allows, even encourages, an armed citizenry not for sort or hunting or defense against burglars but to ensure the ability to successfully defend against and even overthrow the government.

If the Second Amendment means what I think it has to mean. If the Second Amendment guarantees the people the right to bear arms in order to prevent the government from becoming tryranical. If the Second Amendment is there so that free Americans can protect themselves from an oppressive government and so that, in a pinch, they can fulfill the duty of revolution and overthrow that government. If all that's so. Then my hyperbolic, jokey response about how, whatever limitations there may be on the Second Amendment right, the government can surely prevent me from keeping an atom bomb in my backyard, is simply wrong.

Regardless, I'm still in some ways that Jewish kid from New York who hates guns.

Another Jewish kid from New York (and no, we've never met, though we both grew up on the upper west side of Manhattan) who presumably hated guns is the former Generalissima, now-Justice Elena Kagan.

The other day, she was in Baltimore helping a temple celebrate its 90th anniversary.  She talked about her family's search for a temple.  About convincing a "modern orthodox" rabbi (whatever sort of orthodox that is) to give her something like a bat mitzvah.  She talked about Jews on the SCOTUS bench and about a case involving a passport from Jerusalem or Israel or Palestine.  And she talked about (you knew I was going to get back to this, right?) guns.

She recalled paying a courtesy call on Sen. Benjamin Cardin, D-Maryland, who is a member of Beth Tfiloh, shortly after her nomination to the court by President Barack Obama in May 2010. Cardin asked her about gun rights, and remarked she may not realize how important the issue is to some Americans.
She admitted never having owned or fired a gun before. "But I told Sen. Cardin if I was fortunate enough to be confirmed, I would go hunting with Justice Scalia."
And she has, joining her conservative colleague on an excursion to a Washington-area shooting range and on several hunting trips, until now never reported. Her host at the synagogue event was surprised.
"You're Jewish," deadpanned Rabbi Mitchell Wohlberg.
"Yeah, but it turns out, it's kind of fun," said Kagan, laughing.

And no, I'm not going to try relating this to the big/game/hunter cops near Zanesville (home of the National Road/Zane Grey Museum, by the way) who just tracked down and killed some 49 "exotic" animals.

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.

Probably Not

Those of you who pay attention to this sort of thing will have noticed that there's been some serious discussion in the blawgs recently about how (if at all) to define "beyond a reasonable doubt" and what should follow when juries can't agree about it.  (See Gideon and Gideon, Greenfield, Horowitz and Horowitz, Kennedy, and probably several others.)

Then Orin Kerr and Greenfield took on "probable cause."  Kerr said it was good to leave it undefined and "unquantified" so that judges could violate the basic requirement that warrants stand or fall based on the information sworn to in the affidavit.  (Lawyers like to say "within the four corners of the affidavit" because that reminds us that affidavits are supposed to have corners.)

By leaving probable cause unquantified, current law enables judges to use their intuition and situation-sense to recognize when missing information is likely important to assessing probable cause. Quantification would lead to less accurate probable cause determinations by disabling those intuitions, creating the false impression that the information provided in the affidavit is the only relevant information.

Greenfield knows better than to encourage judicial voodoo and ESP to take the place of lies facts sworn to by officers who seek warrants.  Besides, he says, we all know what "probable cause" means.

Probable.  More likely than not. Nothing to see here, right?

Except, well, not to judges.  I wrote this last year.

Now, if you're not a lawyer, you might think that probable cause means something like "probably."   You know, there's "probable cause," so it must be "probable."  The courts (and they're the ones who decide these things, after all) take a different view.  

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.

So there you have the absolute key to the Fourth Amendment.  When it's more likely than not that the evidence or contraband will not be found, when the search will probably be invasive but useless, they're supposed to issue a warrant.

Scott wants to go with Brinegar which actually makes sense.  But that ain't the law as the courts read it.

And it sure as hell isn't the law in Ohio's First Appellate District.  The case is State v. Cronin, and it actually turns on just what can be probable cause.  

Cronin was driving through Cincinnati just after midnight when he did not run a red light.  Ohio Highway Patrol Sergeant Robert Hayslip, saw Cronin enter an intersection while the light was yellow (which is legal) or maybe even green.  The light turned red or maybe yellow, perhaps before Cronin got all the way through the intersection but perhaps not, and legally it doesn't matter because (once again) you can enter the intersection while the light is yellow (and certainly when it's green) in Ohio.

Hayslip pulled Cronin over for running a red light.  Which, as Hayslip observed, he had not done.

What followed was a couple of failed field sobriety tests and charges of driving under the influence and running a red light.  The trial court suppressed the evidence concluding that the evidence of the DUI was a product of an unconstitutional traffic stop. The court of appeals summarized the trial court.

“Therefore,” the court concluded that Cronin “did not run a red light, and there was no reasonable articulable suspicion to stop [Cronin’s] vehicle.”

So the state of Ohio appealed because, why the hell not.

First, says the court of appeals, the trial court got it wrong.  A traffic stop requires more than reasonable articulable suspicion.  It requires probable cause.  OK, that's looking good.  I mean, if the trial court found that the stop wasn't justified even by a measure less than probably not probable cause, then surely it isn't justified by probable cause itself.

How foolish you are to think that.

Probable cause can exist even if the officer incorrectly determines that a traffic violation has occurred or if the officer misunderstands the law that the driver is allegedly violating. The test is whether an objectively reasonable police officer would believe that a traffic violation has occurred based upon the totality of the circumstances. This is an objective standard, not a subjective one.
The proper focus is not on whether a defendant could have been stopped because a traffic violation had in fact occurred, but on whether the officer had probable cause to believe an offense had occurred. The fact that a defendant could not ultimately be convicted of failure to obey a traffic signal is not determinative of whether an officer acted reasonably in stopping him for that offense. “Probable cause does not require the officer to correctly predict that a conviction will result.”
Here, Sgt. Hayslip, without the benefit of a digital review of the events, testified that when the traffic-control signal “turned red,” Cronin’s vehicle was in the intersection. This observation, made by an experienced law-enforcement officer, provided objective evidence from which a reasonable police officer could have concluded that a traffic violation had occurred. When, as here, an officer personally observes what he reasonably believes to be a traffic violation, the officer has probable cause to initiate a traffic stop. The trial court erred in reaching its legal conclusion that Sgt. Hayslip lacked an appropriate justification to stop Cronin’s vehicle.

Let me summarize that (by the way, I omitted the footnote case citations).

Probable cause is an objective test.  If the Hayslip had an objective basis to believe that Cronin violated the traffic law, then he had probable cause to stop the car.  Hayslip's testimony indicated that he saw Cronin enter the intersection while the light was yellow.  Therefore he had probable cause to stop Cronin for running the red light.

That is, based on observing that Cronin did not run the red light, Hayslip had probable cause to stop Cronin for running the red light.

Because, after all, probably not.

Did I mention that the opinion was unanimous?

The Fourth What? - Part II

It was maybe 15 or 18 years ago, in the United States District Court for the Middle District of Tennessee two federal judges were hearing suppression motions the same week.  Both cases involved traffic stops where dogs had been brought out, sniffed the cars, and scratched at a door or barked or licked their balls or whatever those particular dogs did that indicated to their handlers that they'd smelled something druggy.  The defendants had gotten into the record in each case that when the dog at issue alerted (might have been the same dog, actually), drugs were found something like 35% of the time.

So the question:  When a dog alert leads to the discovery of drugs around 1/3 of the time, is the alert probable cause to search?  (If there's a car, you don't need a warrant, just PC.)  And the answer: One judge said yes.  The other said no.  (Which tells you pretty much all you need to know about how arbitrary justice is in the US of A, or at least the Middle District of Tennessee.)

Anyway, the criminal blawgosphere has been running full-bore ahead with Fourth Amendment issues lately.  (See Orin Kerr, Scott Greenfield, Publius [and his co-contributors and commentariat at Affirmative Links], Gamso, Rick Horowitz, Gideon, and probably half a dozen others I'm unfairly not mentioning [sorry folks].)  Aside from one commentator thinks the rest of us (maybe not Kerr, though maybe him, too) misguided, we all pretty much agree that the 4th is a noble idea honored far more in the breach than in practice.

Mostly, we've been carrying on about exceptions and the exclusionary rule and when the exceptions swallow the rule and how when you get down to it, pretty much whatever the cops do is fine.  But I want to go back to that dog sniff thing, because it gets at a fundamental problem:  Probable cause.

Here's what you need to know about dog sniffs.

First, most courts say that they're not searches, at least not usually.  Here's the Fourth Amendment.

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.

And here's the syllogism.   

• If something isn't a search, none of that matters.  
• A dog sniff isn't a search.  
• Therefore, none of that matters.

It started with luggage at an airport in US v. Place.

A "canine sniff" by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer's rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.

In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here — exposure of respondent's luggage, which was located in a public place, to a trained canine — did not constitute a "search" within the meaning of the Fourth Amendment.

Then it expanded.  There may be exceptions here and there, but the general rule now is that a dog sniff is not a search.  Because it's not a search, the Fourth Amendment is simply irrelevant to it.  No need for probable cause or a warrant or even a by-your-leave.  So say the courts.  

But a dog sniff, even though it's not a search, does generate Fourth Amendment searches.  As the court inaccurately says in Place, "the sniff discloses only the presence or absence of narcotics."  Except it doesn't.  The sniff reveals, at most, that chemical traces of narcotics are in the vicinity of what's sniffed.  Drugs may be there, may once have been there, or may now (or earlier) have been nearby.  That's it.

And that brings us back to the Middle District of Tennessee.  See, when a dog alerts, there will be a search.  If a dog alerts to a car, they won't bother with stuff like warrants because cars are special and the warrant part of the Fourth Amendment doesn't apply to them.*  But what if the dog's proved unreliable?

I've tried to pursue that issue in state court in Ohio.  Our local appellate court maintains that the drug dog's actual track record is irrelevant.  One percent?  Ninety-percent?  Doesn't matter.  Any alert is probable cause to believe drugs present.  And since the dog's accuracy rate is irrelevant, we're not entitled to it and a court order that it be delivered should be reversed.

But how can it be, you ask, that the dog's record is irrelevant?  Maybe in the middle, but at the extremes?

Ah, how little you understand, grasshopper.  It's because of those words "probable cause."

Now, if you're not a lawyer, you might think that probable cause means something like "probably."   You know, there's "probable cause," so it must be "probable."  The courts (and they're the ones who decide these things, after all) take a different view.  

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.**

So there you have the absolute key to the Fourth Amendment.  When it's more likely than not that the evidence or contraband will not be found, when the search will probably be invasive but useless, they're supposed to issue a warrant.  When it's even less likely than that, the police get to detain you until their suspicions are allayed.

The United States had, last I looked, a larger percentage of its population behind bars than any other country.  Now you know why.

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*As Casey Stengel used to say, "You could look it up."  I'll save you the trouble.  The case is Carroll v. United States and then all the cases relying on it.

** There's also reasonable suspicion, which allows the police to detain people long enough to dispell their suspicion.  Reasonable suspicion, the courts tell us, is a less demanding standard than probable cause.