How the Post-Framing Adoption of the Bare-Probable-Cause Standard Drastically Expanded Government Arrest and Search Power

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The general theme running through most of the articles in this symposium is that recent Supreme Court decisions have expanded police authority by relaxing--or eviscerating--the Fourth Amendment's "probable cause" standard for arrests and searches. I concur in that assessment: the Burger, Rehnquist, and Roberts Courts have pretty much destroyed the constitutional checks against arbitrary police intrusions. However, I write to expose another, earlier part of the story that has been almost entirely overlooked: that the now-accepted doctrine that probable cause alone can justify a criminal arrest or search did not emerge until well after the framing of the Bill of Rights in 1789 and constituted a significant departure from the criminal-procedure standards that the Framers of the Bill thought they had preserved.

Framing-era common-law criminal-procedure doctrine was accusatory in character and structured according to assessments of "necessity." In particular, arrest or search authority arose from, and depended upon, a foundational accusation by a named and potentially accountable complainant that a crime actually had been committed "in fact." Probable cause could suffice as to the identity of the criminal, but not for the fact of the crime. Thus, probable cause alone regarding the commission of a crime--what I call "bare probable cause"--was not a standard that the Framers intended to apply to criminal arrests or searches.

Instead, the notion that bare probable cause that a crime might have been committed suffices to justify a warrantless arrest, or issuance of an arrest warrant, dates back only to roughly the middle of the nineteenth century. The notion that bare probable cause suffices to justify a criminal search warrant has a similarly short history. Additionally, although the post-flaming adoption of bare probable cause as the standard for warrantless felony arrests increased opportunities for peace officers to make warrantless searches of arrestees incident to lawful arrests, the doctrine that bare probable cause could justify a warrantless search made other than as an incident of a lawful arrest was not invented until the 1920s. Thus, the post-flaming adoption of the bare-probable-cause standard by American judges was itself a drastic relaxation of the arrest and search protections that the American Framers thought they had preserved in constitutional provisions.

Indeed, when American judges adopted the bare-probable-cause standard, they effectively rejected the accusatory criminal procedure that the Framers had undertaken to preserve and instead opened the way for the development of modern investigatory criminal procedure. In particular, the adoption of the relaxed bare-probable-cause arrest standard facilitated the development of the discretionary authority that characterizes modern policing and thus drastically increased government criminal-justice power. And all this happened long before recent Supreme Court opinions drained the modern bare-probable-cause standard of significant content.

The reason this story will be unfamiliar is that the conventional history of what is now referred to as "search and seizure" doctrine has been shaped by bogus claims about the historical Fourth Amendment that appear in modern Supreme Court opinions. According to that account, the Framers intended for the first clause of the Fourth Amendment to create an across-the-board "reasonableness" standard for all government searches and seizures. Moreover, because "probable cause" was explicitly stated as the required justification for particularized warrants in the second clause of the Amendment, modern opinions have also construed bare probable cause to be the general "touchstone" for assessing "Fourth Amendment reasonableness." (1) Thus, the modern Supreme Court has treated bare probable cause that a crime might have been committed as the basic Fourth Amendment standard for justifying government arrests and searches, whether made with or without a warrant. …


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