Isn’t it bad enough that courts have proven themselves incapable of coming up with an adequate instruction on “beyond a reasonable doubt?”  Lesser standards, at least, have always been susceptible to generally universal comprehension.  Standards like, oh, probable cause.

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

Leave it to Orin Kerr to muck things up.

I have just posted a first draft of a very short essay, Why Courts Should Not Quantify Probable Cause, which is forthcoming as a book chapter in a volume dedicated to the late Professor William Stuntz. (I first presented the idea at the Harvard conference in his honor.) Here’s the abstract:

Probable cause is one of the fundamental concepts of Fourth Amendment law, but the Supreme Court has refused to quantify it. The Court has described probable cause as a “fair probability,” but it has declined to explain just how likely a “fair” probability might be. Does a “fair probability” mean a 50% likelihood? A 40% likelihood? And why won’t the Justices say? Are they just afraid of math?

Nice how he got that “Harvard” piece in there, to make sure we all know that this is the sort of thing that deep-thinkers ponder.  But a “40% likelihood?”  Where the heck does that come from?

My initial reaction to the fact that anybody, even Orin, spent a few minutes thinking about this question, falls under the women’s hemline theory.  If they don’t move it up and down occasionally, dress designers will have nothing to do.

Lawprofs are constantly vigilant for things no one has ever considered before, thus providing them with fodder for doing lawprof stuff.  So what if there was never an issue because there was never an issue. Create a controversy and resolve it.  Write a paper (or a chapter in a book) and it can forever thereafter be known as the Kerr Theory.  If you’re really lucky, new lawprofs for generations will discuss and debate.

Orin goes on to argue that the courts are right to refuse to quantify probable cause.  Here’s why:

This essay argues that courts should not quantify probable cause because quantification would produce less accurate probable cause determinations. The core problem is that information critical to probable cause is often left out of affidavits in support of warrants: Although affidavits say what techniques police tried that added to cause, they generally leave out both what the police tried that did not add to cause and what techniques the police never tried. Determining probable cause accurately often requires this information, however. 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.

He’s killing me.  I agree wholeheartedly that the courts shouldn’t quantify probable cause.  My reasoning is that there’s nothing to quantify, the word “probable” having a very clear, easily explained and communicated meaning.  Probable. More likely than not.  If pressed to use math for a reason other than adding up the bill, then consider it more than 50%, though such an exercise is silly since probable cause is a qualitative rather than quantitative inquiry.

While we use words like “weighing” evidence and “balancing” tests, we don’t actually use scales except as metaphors.  We also don’t require judges to wear blindfolds or togas draped so that one breast (at least) is showing.

But then Orin dredges up some very peculiar words to describe what judges should use in lieu of quantification:  intuition and situation-sense.  Does that make your spidey sense tingle?

Are we back to the old myth that cops have a “sixth sense,” that magical, mystical innate knowledge of who is guilty, who is lying, who is evil, evidence notwithstanding?  You know what I mean, the nonsensical introduction to every B-grade cop movie, film noir type, thereby eliminating any need to first gather evidence and then, and only then, decide which defendant to send to the electric chair?

It would seem that Orin’s choice of words to describe his controversy-creation is merely unfortunate, except that he justifies it based on the omissions in a warrant.  My head is about to explode.  Does this suggest that judges should use their “intuition” to fill in the gaps of a warrant to reach probable cause?

First, what makes judges so law enforcement/street savvy that they have “situation-sense?”  They are cloistered.  Sure, they did their time as prosecutor, which is as close to omniscience training as it comes, but they only know the streets second hand, basking in the stories of cops’ and agents’ sixth sense.  Of course, neither the cops nor agents tell the stories about the 90% of people they stopped that had no contraband on them and were cut loose.  Those aren’t good stories to tell if you want to impress young prosecutors.

Second, what’s wrong with requiring law enforcement to set forth in writing everything they rely upon in support of the warrant?  If they’ve got more evidence and chose not to use it, that’s up to them. If the showing falls short, they can redo the application or walk away.  But why would it be up to the judge to fill the evidentiary void with his “intuition”?  It’s not the judges’ place to compensate for lousy policing.  Remember that whole neutral magistrate thing?

And when our quasi-mythical neutral magistrate reads the application for a warrant, she will ask herself whether it persuades her that it is more likely than not that it meets the requirements for issuance.  Is that so hard?

I get it.  It’s hard, given all the law reviews, hornbooks and nonfiction bestsellers, to come up with novel legal issues to write about.  Hemlines up. Hemlines down.  Pedestrian stuff to argue and reargue the same old stuff.  Finding virgin territory is a coup.

But we’ve got enough muddy waters in the law.  While lawprofs are busily trying to stir things up for their own benefit, there are a bunch of real people sitting on hard wooden benches who are never sure whether their hemline is at the proper height for the season.  Don’t make their lives any harder than it already is.

Probable cause is one of the handful of standards we can all understand.  Please keep your mitts off of it. Please.