Cybersurveillance without restraint? The meaning and social value of the probable cause and reasonable suspicion standards in governmental access to thirdparty electronic records

Journal of Criminal Law and Criminology

Volumn 103, Issue 3, 2013, Pages 839-936

  Taslitz, Andrew E ^a  

^a AMERICAN UNIVERSITY   (United States)

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EID: 84880960386     PISSN: 00914169     EISSN: None     Source Type: Journal    
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References (543)

1. The United States Supreme Court has explained the doctrine: [We] ha[ve] held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by [the third party] to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.
2. United States v. Miller, 425 U.S. 435, 443 (1976). The doctrine is not monolithic, however.
3. The holding in Bond v. United States, 529 U.S. 334, 338-39 (2000) (exposing luggage to third-party exploration did not mean exposing it to the type of exploration there engaged in by the police), for example, is inconsistent with the doctrine. Justice Sotomayor has openly called for reconsidering the doctrine in technological surveillance cases.
4. See United States v. Jones, 132 S. Ct. 945, 957 (2012) (Sotomayor, J., concurring) ("[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age.") (citations omitted). The doctrine remains controversial among academic commentators.
5. Compare Stephen E. Henderson, The Timely Demise of the Fourth Amendment Third Party Doctrine, 96 IOWA L. REV. BULL. 39, 40 (2011) (seeing signs of the doctrine's erosion and wishing it a timely death).
6. Orin S. Kerr, The Case for the Third-Party Doctrine, 107 MICH. L. REV. 561, 564 (2009) (defending the doctrine).
7. See Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring)
8. JON L. MILLS, PRIVACY: THE LOST RIGHT 27-37, 45-58 (2008) (summarizing the scope of third-party technological access to personal information).
9. See CRIMINAL JUSTICE STANDARDS ON LAW ENFORCEMENT ACCESS TO THIRD PARTY RECORDS (2012), available at http://www.americanbar.org/content/dam/aba/publications/criminal_justice_standar ds/Black_Letter.authcheckdam.pdf. But these Standards do not apply to "access to records after the initiation and in the course of a criminal prosecution."
10. Id. § 25-2.1(b).
11. See id. § 25-3.4.
12. See AM. BAR ASS'N, BACKGROUND REPORT TO CRIMINAL JUSTICE STANDARDS ON LAW ENFORCEMENT ACCESS TO THIRD PARTY RECORDS (2012), available at http://www.americanbar.org/content/dam/aba/publications/criminal_justice_standards/Memo_House.authcheckdam.pdf ("But because the federal constitutional regulation has been slight, and because other regulation has occurred in an ad hoc manner, there is no existing framework via which legislatures, courts acting in their supervisory capacities, and agencies can make the difficult decisions regarding what records should be protected and the scope of such protection.").
13. See CRIMINAL JUSTICE STANDARDS ON LAW ENFORCEMENT ACCESS TO THIRD PARTY RECORDS §§ 25-5.7 (notice), 25-6.1-6.2 (limiting record maintenance, retention, and disclosure), 25-7.1 (providing accountability mechanisms).
14. See id. § 25-5.2.
15. See id. §§ 25-4.2, 25-5.2.
16. For example, federal Fourth Amendment constitutional protections against government access to third-party records are minimal, if they exist, see supra text accompanying note 1, and a patchwork of state and federal legislation addresses specific privacy issues or broad information categories,
17. MILLS, supra note 2, at 130-32, 135-37 (discussing, for example, protection of educational information, trade secrets, and proprietary information), while the Standards protect records based largely upon how private the information they contain is rather than a particular issue or broad subject-matter category.
18. The drafting committee did not keep minutes of or record its meetings. I was, however, a member of that committee. My characterizations here are based partly on my recollections of the committee's meetings and partly on the content of the law enforcement members' report dissenting from a draft of the Standards.
19. Gary Lacey & Norman W. Frink, Dissent from ABA Standards for Criminal Justice, Government Access to Records: Third Parties and Privacy, Standards DRAFT 6.0 (Apr. 8, 2010) (unpublished manuscript) (on file with the Journal of Criminal Law and Criminology) [hereinafter Dissenting Report]. I was also a member of the Criminal Justice Section Council, which reviewed and modified a later version of the Standards. The Council does not keep transcripts of its meetings, so here too I rely on my memory of relevant events.
20. See CRIMINAL JUSTICE STANDARDS ON LAW ENFORCEMENT ACCESS TO THIRD PARTY RECORDS § 25-4.2(b) ("If the limitation imposed by subdivision (a) would render law enforcement unable to solve or prevent an unacceptable amount of otherwise solvable or preventable crime, such that the benefits of respecting privacy are outweighed by this social cost, a legislature may consider reducing, to the limited extent necessary to correct this imbalance, the level of protection for that type of information, so long as doing so does not violate the federal or applicable state constitution.").
21. See id. § 25-2.1(c).
22. See CHRISTOPHER SLOBOGIN, PRIVACY AT RISK: THE NEW GOVERNMENT SURVEILLANCE AND THE FOURTH AMENDMENT 186 (2007). Slobogin's scheme treats "eventdriven" and "target-driven" searches differently
23. see id. at 9-13, a distinction that I need not define here because it is one that the Standards ultimately rejected.
24. See id. at 139, 179-80 (summarizing the varied statutory protections for "transactional surveillance"-"the accessing of records about activities that have already occurred"-and concluding that most require mere relevance or nothing as a standard of justification).
25. But see Stored Communications Act, 18 U.S.C. §§ 2701-11 (2006)
26. id. § 2703(a) (requiring probable cause for government access to some e-mail messages stored with Internet service providers for under 180 days)
27. id. § 2703(d) (necessitating a grand jury subpoena, requiring mere relevance, or, for e-mails stored over 180 days, an order alleging "specific and articulable facts showing there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation")
28. SLOBOGIN, supra note 14, at 175-76 (explaining that the "specific and articulable" language in § 2703(d) sounds like "reasonable suspicion" but is in fact a far lower standard).
29. See, e.g., Patricia L. Bellia, Surveillance Law Through Cyberlaw's Lens, 72 GEO. WASH. L. REV. 1375, 1436 (2004) ("Congress should apply a uniform search warrant standard to all stored communications and should require notice of the search in most cases.")
30. Deirdre K. Mulligan, Reasonable Expectations in Electronic Communications: A Critical Perspective on the Electronic Communications Privacy Act, 72 GEO. WASH. L. REV. 1557, 1592 (2004).
31. See Paul Ohm, Probably Probable Cause: The Diminishing Importance of Justification Standards, 94 MINN. L. REV. 1514, 1524 (2010) (noting that the Department of Justice has opposed, and likely in the future will oppose, efforts to raise the standards of justification for governmental technological surveillance).
32. See id. at 1523-24.
33. See id. at 1514-16.
34. See id. at 1516.
35. See id. at 1542-49.
36. See SLOBOGIN, supra note 14, at 168-70 (making the case that several of these categories of government surveillance where justification standards can make a difference are far from rare).
37. See CRIMINAL JUSTICE STANDARDS ON LAW ENFORCEMENT ACCESS TO THIRD PARTY RECORDS §§ 25-3.3, 25-4.1 (2012).
38. See Ohm, supra note 17, at 1525-42 (offering cybercrime examples).
39. There is no uniform, agreed-upon definition of "cybercrime." See Ralph D. Clifford, Introduction to CYBERCRIME: THE INVESTIGATION, PROSECUTION AND DEFENSE OF A COMPUTER-RELATED CRIME 3, 3-5 (Ralph D. Clifford ed., 2d ed. 2006) [hereinafter CYBERCRIME]. I define "cybercrime" here as any crime in which the criminal act is committed by using a computer, e-mail, or the Internet, rather than an ordinary crime that merely leaves evidentiary traces on computers or the Internet.
40. Cf. Susan W. Brenner, Defining Cybercrime: A Review of State and Federal Law, in CYBERCRIME, supra, at 13, 14-19 (seemingly broadly defining cybercrime to include any use of computer technology to commit crime, but noting that different issues are involved where computers are the target or instrumentality of a crime as compared to crimes where "the computer plays a non-essential role in the commission of the offense").
41. Examples of cybercrime include hacking, computer fraud, Internet threats, online stalking, and Internet distribution of child pornography. I use the term "cybersurveillance" to refer to government surveillance of any computer-created or stored information, thus including government access to computer records relevant to prove only "ordinary crimes" such as most murders, rapes, face-to-face scams, and simple drug sales.
42. See Ohm, supra note 17, at 1515 (suggesting that his argument extends to any non-"traditional" investigations, that is, those involving "modern technology," and declaring that "the Internet is a hunch-free zone").
43. See Christopher Slobogin, Making the Most of United States v. Jones in a Surveillance Society: A Statutory Implementation of Mosaic Theory 12-13 (Vanderbilt Univ. Law Sch., Pub. Law & Legal Theory, Working Paper No. 12-29; Law & Econ., Working Paper No. 12-22, 2012).
44. Id. at 13. Slobogin defines "probable cause" to include a belief "based on statistical analysis."
45. Id. at 20. I do not disagree that statistical analysis can often be part of the basis for probable cause. To the extent that Slobogin suggests that statistical analysis can alone establish probable cause, however, I disagree for reasons to be explained shortly.
46. See Andrew E. Taslitz, Police Are People Too: Cognitive Obstacles to, and Opportunities for, Police Getting the Individualized Suspicion Judgment Right, 8 OHIO ST. J. CRIM. L. 7 (2010) [hereinafter Taslitz, Cognitive Obstacles]
47. Andrew E. Taslitz, What Is Probable Cause, and Why Should We Care?: The Costs, Benefits, and Meaning of Individualized Suspicion, 73 LAW & CONTEMP. PROBS. 145 (2010) [hereinafter Taslitz, Individualized Suspicion].
48. The other three aspects of probable cause and reasonable suspicion that I earlier identified were: (1) the temporal: when the probable cause or reasonable suspicion judgment is to be made and whether its timing affects its meaning; (2) the individualized: whether that evidence points to a specific location revealing involvement of a specific person in crime; and (3) the accountable: what procedures render the probable cause affiant accountable for his claims such that courts or other reviewing entities oversee the police and avoid being mere rubber stamps for law enforcement judgments. My earlier pieces focused on the last two of these three aspects.
49. See Taslitz, Cognitive Obstacles, supra note 29
50. Taslitz, Individualized Suspicion, supra note 29. I leave a more thorough analysis of the temporal aspect of justification standards for another day.
51. Logicians, mathematicians, and their fellow travelers in legal academia might bristle at the way I use the term "subjective probability." They would understand subjective probability to refer to each individual's level of certitude that an event will occur or has occurred or that a proposition is true, and would require that certitude comply with certain standards of coherence.
52. See DONALD GILLIES, PHILOSOPHICAL THEORIES OF PROBABILITY 1 (2000) ("The subjective theory identifies probability with the degree of belief of a particular individual.")
53. IAN HACKING, AN INTRODUCTION TO PROBABILITY AND INDUCTIVE LOGIC 127, 151-53, 163-65 (2001) (explaining how "personal probabilities" can be measured by odds or betting and defining "coherence" in personal probability judgments). Two individuals' subjective probabilities as so defined can be wildly different, and neither one can objectively be said to be "better" than the other so long as both are coherent-that is, inductively consistent in a way that supports the rules of probability.
54. See GILLIES, supra, at 1 (noting that the subjective theory of probability does not assume that "all rational human beings with the same evidence will have the same degree of belief in a hypothesis or prediction");
55. HACKING, supra, at 180 (discussing inductive consistency and coherence). I am using the term in a slightly different fashion. Probability theories can broadly be grouped into the objective, for example, how frequently an event occurs in a broad run of identical activities (e.g., how often heads shows up in 1,000 flips of a coin) and the psychological, a state of mind consisting of degrees of certitude.
56. Id. at 127 ("The idea of probability leads in two different directions: belief and frequency. Probability [in the first sense] makes us think of the degree to which we can be confident of something uncertain, given what we know or can find out.") (emphasis in original). I use the term "subjective probability" to refer to psychological certitude. But I do not use the term to mean psychological senses of certitude.
57. See generally RAYMOND S. NICKERSON, ASPECTS OF RATIONALITY: REFLECTIONS ON WHAT IT MEANS TO BE RATIONAL AND WHETHER WE ARE (2008) (discussing at book length the standards of rational inference in everyday life and in special contexts and connecting the two). Critique in light of these rational inference standards and through these social processes results in either agreement among the parties on the appropriate degree of certitude or acceptance by a decisionmaker (such as a judge) of a degree of certitude that the decisionmaker can publicly justify.
58. See infra note 211. (I am not adopting the "logical theory" of probability, which does "identif[y] probability with degree of rational belief" but assumes that "given the same evidence, all rational human beings will entertain the same degree of belief in a hypothesis or prediction"-a far stronger claim than I make here.
59. See GILLIES, supra, at 1 (defining logical theory of probability and discussing the "propensity" theory, which is not relevant here work of Charles Yablon), and partly because the term offers an effective judgments as here defined.
60. See AM. BAR ASS'N, supra note 5, at 3-4.
61. See Richard A. Posner, Privacy, Surveillance, and Law, 75 U. CHI. L. REV. 245, 248 (2008) ("But with digitization, not only can recorded information be retained indefinitely at little cost, but also the information held by different merchants, insurers, and government agencies can readily be pooled, opening the way to assembling all the recorded information concerning an individual in a single digital file that can easily be retrieved and searched.").
62. See MARTIN KUHN, FEDERAL DATAVEILLANCE: IMPLICATIONS FOR CONSTITUTIONAL PRIVACY PROTECTIONS 1 (2007) (discussing data aggregators)
63. DANIEL J. SOLOVE, THE DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE INFORMATION AGE 2, 9 (2004) (defining "digital dossiers").
64. See MILLS, supra note 2, at 29-34, 72-74, 148-49.
65. See Andrew E. Taslitz, The Fourth Amendment in the Twenty-First Century: Technology, Privacy, and Human Emotions, 65 LAW & CONTEMP. PROBS. 125, 131 (2002) (defining privacy).
66. See MILLS, supra note 2, at 26-27
67. Benjamin J. Goold, Surveillance and the Political Value of Privacy, 1 AMSTERDAM L. FORUM 3, 4-5 (2009)
68. Taslitz, supra note 36, at 152-80.
69. TECH. & PRIVACY ADVISORY COMM., SAFEGUARDING PRIVACY IN THE FIGHT AGAINST TERRORISM: REPORT OF THE TECHNOLOGY AND PRIVACY ADVISORY COMMITTEE 24 (2004), available at http://www.defenselink.mil/news/Jan2006/d20060208tapac.pdf.
70. See Jed Rubenfeld, The End of Privacy, 61 STAN. L. REV. 101, 118 (2008).
71. See, e.g., City of Ontario v. Quon, 130 S. Ct. 2619, 2629-30 (2010) (noting in dicta, despite finding no Fourth Amendment violation in the government's surveillance of an employee's text messages in the specific case, that "[t]he Court must proceed with care" in exploring the Fourth Amendment implications of emerging technologies and noting the importance of new social norms spurred to evolve by these technologies).
72. Posner, supra note 33, at 248.
73. See id. at 247 (observing that, although "[a] far greater amount of personal information is revealed voluntarily than involuntarily," such disclosure is not truly consensual because it is necessary "[t]o get a good job, to get health and life insurance," and to get other aspects of personal health and welfare)
74. 'cf. MARGARET JANE RADIN, BOILERPLATE: THE FINE PRINT, VANISHING RIGHTS, AND THE RULE OF LAW 17-18 (2013) (discussing how boilerplate language, especially as used on the Internet, involves neither true knowledge nor true choice, and thus, not true consent when "agreeing" to contract terms).
75. See CRIMINAL JUSTICE STANDARDS ON LAW ENFORCEMENT ACCESS TO THIRD PARTY RECORDS § 25-3.1 (2012).
76. See SLOBOGIN, supra note 14, at 175-76.
77. See CRIMINAL JUSTICE STANDARDS ON LAW ENFORCEMENT ACCESS TO THIRD PARTY RECORDS §§ 25-2.1, 25-4.1, 25-4.2.
78. See id. § 25-4.1.
79. See id. § 25-4.2(b).
80. For example, periodic review, public reporting, civil penalties, and evidentiary exclusion are suggested as ways that individual jurisdictions might choose to ensure that law enforcement is accountable for complying with the Standards' mandates.
81. See id. § 25-7.1.
82. See id. § 25-5.5 (redaction), § 25-5.7 (notice), §25-6.1 (retention and maintenance), § 25-7.1 (accountability).
83. See id. § 25-4.2.
84. See id. § 25-5.3(d).
85. See id. § 25-5.1.
86. Dissenting Report, supra note 11, at 15-16.
87. Compare CRIMINAL JUSTICE STANDARDS ON LAW ENFORCEMENT ACCESS TO THIRD PARTY RECORDS §§ 25-5.1-25-5.2 (requiring, respectively, true consent or some level of justification, such as probable cause, to gain access to records held by third parties), with id. §§ 25-6.1-25-6.2 (requiring law enforcement to protect seized records from access by unauthorized persons or entities, limiting access generally only to those involved in or necessary to the investigation, and frequently creating audit logs and routine recorddestruction schedules where records are no longer needed).
88. See Dissenting Report, supra note 11, at 15-16.
89. See id. at 4.
90. Id. at 5.
91. See id. at 1-23.
92. Cf. BRIAN FORST, ERRORS OF JUSTICE: NATURE, SOURCES, AND REMEDIES 57 (2004) ("Establishing guilt involves a fact-finding process that aims to determine whether the evidence is sufficient to prove beyond a reasonable doubt that the defendant is guilty of the crime charged.") (emphases added). Convicting an alleged criminal thus requires proving, via evidence, and with a high level of confidence, that the defendant engaged in conduct with a specified mental state causing specified social harms stated in statutory elements. The state has no justification for imposing imprisonment or other costs on a person unless the requisite elements are properly proven. Other standards of proof lower the degree of
93. justification required but operate in a similar fashion.
94. See LARRY LAUDAN, TRUTH, ERROR, AND CRIMINAL LAW: AN ESSAY IN LEGAL EPISTEMOLOGY 68-74 (2006) (describing standards of proof as methods for apportioning the distribution of types of risks of error-e.g., the distribution of the risks of acquitting the guilty and convicting the innocent-and arguing that how to proportion those risks turns on the relative costs imposed on the individual if the standard is met, with higher costs requiring a lower risk of false positives (such as convicting the innocent) relative to false negatives (such as acquitting the guilty)).
95. RESTATEMENT (SECOND) OF CONTRACTS § 1 (1981).
96. See ELLEN S. PODGOR et al., MASTERING CRIMINAL LAW 129-30 (2008).
97. See LAUDAN, supra note 68, at 16 (noting that judge or jury must be persuaded to convict in a criminal case).
98. See Taslitz, Cognitive Obstacles, supra note 29, at 12, 31-32, 64-66.
99. See id. at 64-67.
100. See id. Even jurors face the task of articulating reasons for their decisions to other jurors.
101. See Jeffrey Abramson, Jury Deliberation: Fair and Foul, in JURY ETHICS: JUROR CONDUCT AND JURY DYNAMICS 181, 193 (John Kleinig & James P. Levine eds., 2006) ("[T]he ideal of the cross-sectional jury seeks to mire jury deliberation in the full-bodied life of the community, recruiting jurors from all walks of life precisely so that the jury room will echo with remarks about what a police officer's word is worth to a black man or what attention a woman does and does not invite by the clothes she wears or the hours she keeps.")
102. DENNIS J. DEVINE, JURY DECISION MAKING: THE STATE OF THE SCIENCE 154, 156-57 (2012) (describing the constant conversation, disagreement, and even conflict that jurors engage in when trying to persuade one another to reach a common verdict).
103. See Ligon v. City of New York, Nos. 12 Civ. 2274(SAS), 08 Civ. 1034(SAS), 2013 WL 227654, at *2-3 (S.D.N.Y. Jan. 22, 2013) (presenting findings of fact in a Fourth Amendment civil case, illustrating a court's explanation of why the evidence supporting the plaintiff's factual claims triggered the legal categories involved in issuing a preliminary injunction to halt purportedly unreasonable searches and seizures); DEVINE, supra note 74, at 163 ("[G]ood studies have been done, and they show that deliberation content can and does influence jury decisions.")
104. Nancy Pennington & Reid Hastie, A Cognitive Theory of Juror Decision Making: The Story Model, 13 CARDOZO L. REV. 519, 520 (1991) (describing how jurors use stories to fit the facts into a legal category).
105. See generally Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021 (1996) (discussing the messages that law sends and their social function).
106. This communicative grading is akin to that done in assigning a hierarchy of punishments to various criminal offenses: the most serious offenses receive the highest punishments, the less serious ones lesser punishments.
107. See Andrew E. Taslitz, The Expressive Fourth Amendment: Rethinking the Good Faith Exception to the Exclusionary Rule, 76 MISS. L.J. 483, 485 (2006)
108. Andrew E. Taslitz, The Inadequacies of Civil Society: Law's Complementary Role in Regulating Harmful Speech, 1 MARGINS 305, 309, 334-38 (2001) [hereinafter Taslitz, Civil Society].
109. See Taslitz, Civil Society, supra note 77, at 346-47.
110. See id. at 346-49.
111. See LAUDAN, supra note 68, at 66-74 (arguing that empirical research should be undertaken to determine the social value that the public places on punishing crime versus imposing tort liability to determine how to set the level of the standard of proof in civil and criminal cases, but favoring a variety of proof standards for different wrongs rather than, for example, the uniform beyond a reasonable doubt standard in criminal cases).
112. Podgor et al., supra note 70, at 136-38, 147 (defining depraved-heart murder and heat-of-passion voluntary manslaughter)
113. Taslitz, Cognitive Obstacles, supra note 29, at 9-10, 66-67 (illustrating the role of values in probable cause factfinding)
114. Taslitz, Individualized Suspicion, supra note 29, at 170 (discussing the difference between "raw" and normative facts).
115. See LAUDAN, supra note 68, at 66-76 (discussing the link between values and standards of proof).
116. See Christoph Engel, Preponderance of the Evidence Versus Intime Conviction: A Behavioral Perspective on a Conflict Between American and Continental European Law, 33 VT. L. REV. 435, 444 (2009) ("Likewise, in criminal law, guilt must be proven 'beyond a reasonable doubt.' The law focuses on alpha errors [false positives] and requires them to be very rare. By implication, 'preponderance of the evidence' requires much less certainty. The legal order tolerates a substantially higher error rate.").
117. Another reason articulated by economists is that the standard of proof affects incentives, thus altering social welfare. As a simple example, if a standard of proof is so high that many offenders against the law in civil actions are not held liable, that is in effect legalizing their behavior. Freed of civil liability, the behavior that society seeks to deter increases. The relative costs of lowering the standard of proof must be weighed against the increased deterrent effect to determine the optimal standard.
118. See generally Louis Kaplow, Burden of Proof, 121 YALE L.J. 738 (2012) (articulating one such theory). This summary greatly oversimplifies the economic argument, but it expresses its essence. I may here touch on the general idea that standards of proof can affect policing behavior, but a thorough theoretical and empirical economic analysis of the social welfare effects of choosing a particular standard of proof for the probable cause and reasonable suspicion determinations is beyond this Article's scope. The economic theory also apparently assumes an objective theory of probability that I do not think fully describes judicial decisionmaking, see infra text accompanying notes 244-255, and the exact nature of police response to varying the standard of proof in suppression hearings or warrant applications is not something that I think can be determined without serious empirical investigation.
119. See, e.g., Maryland v. Pringle, 540 U.S. 366, 371 (2003) ("The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances.")
120. United States v. Arvizu, 534 U.S. 266, 274 (2002) ("Our cases have recognized that the concept of reasonable suspicion is somewhat abstract.")
121. Ornelas v. United States, 517 U.S. 690, 696 (1996) (cautioning that probable cause and reasonable suspicion are not "finely-tuned standards") (internal quotation marks omitted).
122. See Andrew E. Taslitz et al., CONSTITUTIONAL CRIMINAL PROCEDURE 188-93, 357-63 (4th ed. 2010) (summarizing case law).
123. See Orin Kerr, Why Courts Should Not Quantify Probable Cause, in THE POLITICAL
124. HEART OF CRIMINAL PROCEDURE: ESSAYS ON THEMES OF WILLIAM J. STUNTZ 131, 131 (Michael Klarman et al. eds., 2012) (describing the Court's definition of probable cause, and especially of the associated standard of proof, as "no explanation at all, of course").
125. See id. at 131-33.
126. See id. at 132.
127. For an illustration of the kinds of assertions made in probable cause affidavits, see Taslitzet al., supra note 87, at 216-18, 241-43.
128. See Kerr, supra note 88, at 132-33.
129. The Court does require the prosecution to produce to the defense all material exculpatory evidence that may lead to an acquittal at trial.
130. See Brady v. Maryland, 373 U.S. 83, 87 (1963).
131. But there is no analogous obligation requiring the state to produce exculpatory evidence to the magistrate when filing a warrant application or to defense counsel before or during a suppression hearing.
132. The closest equivalent-and it is not very close-is the rule of Franks v. Delaware, 438 U.S. 154 (1978), which permits invalidating a search warrant that intentionally or recklessly misrepresents facts without which probable cause would not have existed.
133. Id. at 156. Presumably this rule would extend to exclusions of exculpatory evidence but only where the missing evidence was so important that it alone would have demonstrated probable cause's absence.
134. See Kerr, supra note 88, at 134.
135. Moreover, the burden of proving fraud or recklessness rests with the defendant, see TASLITZet al., supra note 87, at 228, who rarely will be aware at this early stage of the litigation, if ever, of the police's possession of exculpatory evidence.
136. See Kerr, supra note 88, at 134.
137. See Kerr, supra note 88, at 138.
138. See id. at 135-37.
139. I have changed Kerr's example here only slightly, such as giving the fictional student the name "Student A," where I felt that it would add clarity to my exposition.
140. Cf. Illinois v. Caballes, 543 U.S. 405, 409 (2005) (holding that a drug dog's sniff of a lawfully seized car during a routine traffic stop did not constitute a search because the dog reacts solely to contraband)
141. United States v. Place, 462 U.S. 696, 707 (1983) (reaching a similar holding for a canine drug sniff of luggage in a public place).
142. But see Florida v. Jardines, No. 11-564, slip op. at 8-10 (U.S. Mar. 26, 2013) (holding that police using a drugsniffing dog at the entrance to a private home does implicate the Fourth Amendment)
143. Florida v. Harris, 133 S. Ct. 1050, 1058 (2013) (finding reliability of a drug-sniffing dog relatively easy to establish via a flexible, commonsense test).
144. Undercover investigations also do not ordinarily implicate the Fourth Amendment.
145. See generally United States v. White, 401 U.S. 745 (1971)
146. Hoffa v. United States, 385 U.S. 293 (1966)
147. Lewis v. United States, 385 U.S. 206 (1966)
148. Lopez v. United States, 373 U.S. 427 (1963).
149. See Kerr, supra note 88, at 137.
150. See id. at 138.
151. cf. Sherry F. Colb, Probabilities in Probable Cause and Beyond: Statistical Versus Concrete Harms, 73 LAW & CONTEMP. PROBS. 69, 69 (2010) (discussing generally the strengths and weaknesses of the human preference for evidence of specific harms done to concrete individuals over statistical likelihood of harms).
152. See Kerr, supra note 88, at 141.
153. Kerr apparently derived his 47% illustrative figure from a 1980s survey of federal judges, which found a broad range of quantitative estimates of probable cause (10%-90%) but averaging 44.52% certainty.
154. See C.M.A. McCauliff, Burdens of Proof: Degrees of Belief, Quanta of Evidence, or Constitutional Guarantees?, 35 VAND. L. REV. 1293, 1327-28 (1982).
155. But see Christopher Slobogin, Let's Not Bury Terry: A Call for Rejuvenation of the Proportionality Principle, 72 ST. JOHN'S L. REV. 1053, 1082-85 (1998) (quantifying the probable cause standard of proof at 50%).
156. See Kerr, supra note 88, at 139-40.
157. Id. at 139
158. see also Amos Tversky & Daniel Kahneman, Judgments of and by Representativeness, in JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES 84, 84-85 (Daniel Kahneman et al. eds., 1982) [hereinafter JUDGMENT UNDER UNCERTAINTY] (explaining the representativeness heuristic). Rephrased, we make probability judgments based on the resemblance of one thing to another rather than its likelihood or frequency. More formally stated, the representativeness heuristic means that "probability judgments (the likelihood that X is a Y) are mediated by assessments of resemblance (the degree to which X 'looks like' a Y)."
159. Daniel Kahneman & Shane Frederick, Representativeness Revisited: Attribute Substitution in Intuitive Judgment, in HEURISTICS AND BIASES: THE PSYCHOLOGY OF INTUITIVE JUDGMENT 49, 49-50 (Thomas Gilovich et al. eds., 2002).
160. MARK KELMAN, THE HEURISTICS DEBATE 23 (2011).
161. See id. This logical error, called the "conjunction fallacy," results from the representativeness heuristic but is not the heuristic itself.
162. See Amos Tversky & Daniel Kahneman, Extensional Versus Intuitive Reasoning: The Conjunction Fallacy in Probability Judgment, 90 PSYCHOL. REV. 293, 293 (1983).
163. The term "conjunction fallacy" is used because the joint or conjunctive probability of two events occurring is always less than or equal to the probability of only one of those events occurring.
164. See Tversky & Kahneman, supra note 106, at 98.
165. See Tversky & Kahneman, supra note 106, at 92-93.
166. See id. at 96.
167. See PAUL BREST & LINDA HAMILTON KRIEGER, PROBLEM SOLVING, DECISION MAKING, AND PROFESSIONAL JUDGMENT: A GUIDE FOR LAWYERS AND POLICYMAKERS 216, 267-72, 472-73, 519 (2010) (explaining the anchoring heuristic and how it can sometimes interfere with optimal human reasoning).
168. See id. at 268-69.
169. See KELMAN, supra note 107, at 23.
170. How does a 60% likelihood of drugs in a dorm room "resemble" probable cause that there are drugs in a dorm room? Perhaps it is that both terms involve probability and, more specifically, the probability of drugs being found in a specific location. That seems plausible. But there are also no overt stereotypes involved, like that of how "feminists" behave in the Linda example above. See supra text accompanying notes 108-114. Nor are there particularly vivid facts (being told simply that an empirical study led to the 60% figure is hardly an engaging image) that would make the 60% figure most "available" to memory, leading subjects to focus on the 60% more than on any other information.
171. See BREST & KRIEGER, supra note 111, at 51 (describing the "availability heuristic")
172. id. at 271 (arguing that anchoring-the power of the first number presented to "pull" estimates of an event toward that number, a phenomenon discussed infra-"may increase the availability of features that the anchor and the target-e.g., the number to be determined-hold in common, selectively activating information about the target that is consistent with the anchor (while not activating other information)"). My point is this: even if the representativeness or
173. See, e.g., Barbara Mellers et al., Do Frequency Representations Eliminate Conjunction Effects?: An Exercise in Adversarial Collaboration, 12 PSYCHOL. SCI. 269 (2001).
174. See Kerr, supra note 88, at 140-41.
175. Kerr relies on the infamous "blue bus" example crafted by empirical researchers Amos Tversky and Daniel Kahneman, to make this point.
176. See id. at 139-40
177. Daniel Kahneman & Amos Tversky, On the Psychology of Prediction, 12 OR. RES. INST. BULL. 1. (1972).
178. Without going through the details of that example, it is worth noting that Kerr saw the subjects' error in estimating probability judgments there as due to their "focusing" on a specific probability number they were given. It is important to note several points here, however: first, although it illustrates error resulting from the representativeness heuristic, simple changes in how data is presented can correct such errors, see infra text accompanying note 127; second, the experiment involved only generalized probability statements rather than the additional, more concrete, individualized evidence that the probable cause determination requires, see Taslitz, Individualized Suspicion, supra note 29, at 145; and third, Kahneman and Tversky themselves saw awareness of the representativeness and other heuristics as but cautions and as most useful in making subjective, rather than objective, probability judgments.
179. See Kerr, supra note 88, at 141-43.
180. One well-known evidence scholar has indeed argued that the essential purpose of having a standard of proof is to encourage parties to produce evidence that would otherwise be missing from the factfinder's awareness.
181. See Dale A. Nance, Evidential Completeness and the Burden of Proof, 49 HASTINGS L.J. 621, 621 (1998).
182. Not one United States Supreme Court case addresses generalized probability data in the area of probable cause.
183. See TASLITZet al., supra note 87, at 188-93. Nor, except as noted below, is there much academic literature on the point, nor have I ever seen a case raising it in bar and law reform activities or among the many alumni in criminal practice with whom I stay in touch. There has been writing on group-based searches, primarily either in the administrative or special needs search areas-"dragnets" (an umbrella term for groupbased searches) or data mining and its cousins-none of which concern me here.
184. See id. At 416-66 (concerning administrative and special needs searches)
185. Christopher Slobogin, Government Dragnets, 73 LAW & CONTEMP. PROBS. 107, 110-24 (2010) (discussing Supreme Court cases involving "dragnet" searches).
186. These search categories do involve implicit or explicit objective probability judgments, but my focus in this piece is entirely on searches targeted at specific individuals or locations. In that area of focus, there is little evidence that numerical, generalized objective probability data, outside of crime mapping and its fellow traveler, discussed below, plays much of a role.
187. Erica Goldberg, in a recent piece, argues that much greater effort should be made by the police in the future to collect a far wider range of mathematical data relevant to police search and seizure practices than is currently the case.
188. See Erica Rachel Goldberg, Getting Beyond Intuition in the Probable Cause Inquiry, 17 LEWIS & CLARK L. REV. (forthcoming 2013) (manuscript at 44-45), available at http://elibrary.law.psu.edu/fac_works/34/.
189. One reader of a draft of this Article commented that Kerr might argue that the 60% figure is a "factual anchor," one based on case-specific facts; in Kerr's hypothetical, the conducting of an empirical study of the likelihood of drugs being found in a randomly selected dorm room at a particular college. The 47% standard of proof, on the other hand, is the same in every case, thus less likely to be chosen as an anchor in a particular case. I am not sure why this should be so. Many studies of the anchoring phenomenon have involved completely abstract, obviously untrustworthy, even irrelevant numbers; indeed anchoring occurs, such as in estimating the length of the Mississippi River, even by being exposed to a drawing of long rather than short lines.
190. See BREST & KRIEGER, supra note 111, at 270. Furthermore, "anchors that we encountered along the way and were swayed by remain with us long after the initial decision itself."
191. DAN ARIELY, PREDICTABLY IRRATIONAL: THE HIDDEN FORCES THAT SHAPE OUR DECISIONS 36 (2008). Thus, "our first decisions resonate over a long sequence of decisions." Id. Accordingly, "[f]irst impressions are important, whether they involve remembering that our first DVD player cost much more than such players cost today (and realizing that, in comparison, the current prices are a steal) or remembering that gas was once a dollar a gallon, which makes every trip to the gas station a painful experience." Id. If, as I argue here, the 47%, not the 60% figure, creates the first impression, then there is no reason why anchoring alone should be dominated by the latter rather than the former number. Moreover, although the 60% figure is more case-specific than the posited ever-constant 47% standard of proof, both quantities are quite abstract, neither addressing in the number alone individualized or vivid information about a specific dorm room or person. There is additionally some empirical data suggesting that merely presenting abstract or mathematical data to laypersons is less persuasive than case-specific descriptions of persons and events.
192. See ANDREW E. TASLITZ, RAPE AND THE CULTURE OF THE COURTROOM 133 (1999) ("[T]he impact of such general [social science expert] background testimony, while significant, is quite limited next to testimony that links general principles to the case before the court.");
193. David L. Faigman & A.J. Baglioni, Bayes' Theorem in the Trial Process: Instructing Jurors on the Value of Statistical Evidence, 12 LAW & HUM. BEHAV. 1, 16 (1988) ("[O]ur results. suggest, contrary to Tribe's (1971a) assertion, that an expert's Bayesian formulation will not overwhelm the average trier of fact. Courts, it seems, should be less concerned with jurors being overwhelmed by the complexity of statistical techniques and more concerned with impressing upon jurors the relevance of those techniques.")
194. David McCord, A Primer for the Nonmathematically Inclined on Mathematical Evidence in Criminal Cases: People v. Collins and Beyond, 47 WASH. & LEE L. REV. 741 (1990) (summarizing much of the research in this area and specifying the conditions under which statistical evidence is unlikely to unduly influence the jury). Given the relative abstractness of the 60% figure, I find it hard to see, therefore, why it should have a stronger grip on the imagination than the 47% figure, especially if the latter is presented earlier and repeatedly.
195. See DEVINE, supra note 74, at 131-33.
196. See ARIELY, supra note 121, at 31-36 (reviewing research showing that, rather than "flip-flopping" among new anchors as they are encountered, the first or initial anchor to which we are exposed lasts for a long time, dominating over other potential anchors).
197. See Kerr, supra note 88, at 140-41.
198. See BREST & KRIEGER, supra note 111, at 271-72 (noting that anchoring resists adequate adjustment even when subjects are warned about the phenomenon)
199. RICHARDS J. HEUER Jr., PSYCHOLOGY OF INTELLIGENCE ANALYSIS 152 (1999), available at https://www.cia.gov/library/center-for-the-study-of-intelligence/csi-pub lications/books-andmonographs/psychology-of-intelligence-analysis/Psycho fIntelNew.pdf (recommending, while admitting that it has not yet been empirically tested, "ignor[ing] one's own or others' earlier judgments and rethink[ing] a problem from scratch" as a way to compensate for the anchoring heuristic);
200. MICHAEL J. MAUBOUSSIN, THINK TWICE: HARNESSING THE POWER OF COUNTERINTUITION 22 (2009) (arguing that "[d]eveloping and recognizing a full range of outcomes is the best protection against the anchoring effect if you are sitting on the other side of the negotiating table").
201. See ARIELY, supra note 121, at 31-36.
202. See BREST & KRIEGER, supra note 111, at 269-71.
203. See Laurence A. Benner, Racial Disparity in Narcotics Search Warrants, 6 J. GENDER RACE & JUST. 101, 105 (2002)
204. Laurence A. Benner & Charles T. Samarkos, Searching for Narcotics in San Diego: Preliminary Findings from the San Diego Search Warrant Project, 36 CAL. W. L. REV. 221, 230-33 (2000).
205. Judges may, of course, overvalue weak evidence even where no numerical estimates of guilt are involved. Specifically, judges may suffer from the "availability heuristic"- overestimating probabilities based on the information most easily available to the judges rather than on a more complete set of information.
206. See BREST & KRIEGER, supra note 111, at 252-58.
207. Police and judges often deal with the guilty or those for whom there is at least substantial evidence of guilt. They may, therefore, ignore base rates-the frequency of criminal guilt in the broader population-leading them to view the available evidence as more indicative of probable guilt than it really is.
208. See Jeffrey J. Rachlinski, Bottom-Up Versus Top-Down Lawmaking, 73 U. CHI. L. REV. 933, 942-43 (2006) (arguing that because judges face vivid individual cases, they may, given the availability heuristic, come to view the unusual cases before them as common). Laypersons are able to correct for the availability bias when told to sit as jurors but not when simply asked their opinion-at least if the available information seems irrelevant to an unbiased interpretation of evidence.
209. See BREST & KRIEGER, supra note 111, at 257.
210. Heightening laypersons' awareness of the availability bias's presence and the reasons for its influence in a specific case also might loosen the bias's hold, but that can lead to overcorrection: discounting probability more than should be the case.
211. See id. at 256. Nevertheless, given the similarity between lay and judicial reasoning, these findings might suggest that the grip of the availability heuristic on judges can sometimes be loosened.
212. See Chris Guthrie et al., Inside the Judicial Mind, 86 CORNELL L. REV. 777, 778-81 (2001) (finding, in a study of 167 federal magistrates, that their decisionmaking was affected by five common cognitive illusions-anchoring, egocentric bias, hindsight bias, the representativeness heuristic, and framing-though they were less influenced by the last two illusions than were laypersons, while also suggesting that teaching judges to adopt multiple perspectives might help to reduce some of these illusions' impact). Ultimately, the empirical research suggests that judges-especially busy trial judges-reason intuitively much in the way that laypersons do, rather than deliberatively.
213. See Chris Guthrie et al., Blinking on the Bench: How Judges Decide Cases, 93 CORNELL L. REV. 1, 29-33 (2007). Nevertheless, training and feedback to judges (including frequent peer review), allowing them more decisionmaking time, increased use of scripts and checklists, consistent opinion-writing requirements, and more frequent use of detailed multifactor tests that remind judges of all relevant factors to consider hold promise for moving judges toward more deliberative, less biased reasoning.
214. See id. at 33-43
215. see also Jeffrey J. Rachlinski, Cognitive Errors, Individual Differences, and Paternalism, 73 U. CHI. L. REV. 207, 220-21 (2006) (suggesting that proper training, not experience, is more important to reducing judicial cognitive biases). The concept of weight, discussed infra, which requires judges to be attentive to the completeness and quality of the evidence before them, combined with the requirement of accountability (that is, express reasoned explanation, as with formal opinion writing) implicit in probable cause
216. see infra notes 347-391 and accompanying text, can aid in prompting judges to more deliberate thinking in the probable cause area. Similarly, a specific standard of proof might serve as a reminder that judges must carefully evaluate the evidence of probable cause for its sufficiency rather than simply relying on intuition. Furthermore, a more precise understanding of what probable cause means can provide the checklists, scripts, multifactor considerations, and other reminders that can aid judges in more deliberative thinking processes. In any event, there is no reason to believe that these features argued for here will worsen the availability bias, yet, for the reasons noted, they might help to alleviate it.
217. 540 U.S. 366 (2003).
218. See Pringle v. State, 805 A.2d 1016, 1035 (Md. 2002), rev'd, 540 U.S. 366 (2003) (stating that "even at the probable cause to arrest stage," police must show that every person arrested for possession had "'knowledge' of the controlled dangerous substance and 'dominion or control' over the substance," such knowledge permissibly being inferred under Maryland law only if the drugs in a car were fully visible to all occupants).
219. One reader of a draft of this piece thought that there was sufficient evidence that all three occupants jointly possessed the drugs because the police also found, pursuant to a "consent search," $763 in the glove compartment.
220. See Pringle, 540 U.S. at 371-72. I am not convinced. Money in a glove compartment may most logically be linked to the driver or owner of the car. Pringle was neither. Furthermore, the drugs were found behind an upraised armrest next to a backseat passenger other than Pringle. There is no reason to believe that Pringle himself, neither owning nor driving the car, nor being near the drugs, was aware of their presence. Equally a highly questionable assumption.
221. See id. at 373-74. I thus found the state court's majority opinion on these points far more persuasive than the United State Supreme Court's reasoning.
222. See TASLITZet al., supra note 87, at 189-95 (articulating a more detailed summary and analysis of Pringle).
223. Pringle, 540 U.S. at 368.
224. Probable cause means probable cause to believe that a specific offense has been committed, as defined by the law of the relevant jurisdiction. See, e.g., Ligon v. City of New York, No. 12 Civ. 2274, 2013 WL 227654, at *3-4 & n.11 (S.D.N.Y. Jan. 22, 2013) (interpreting United States Supreme Court probable cause case law and focusing on whether, under New York law, police had reasonable suspicion to believe that people stopped outside of a housing project were committing the crime of trespass-a central question to determining whether the Fourth Amendment had been violated). Virginia v. Moore, 553 U.S. 164 (2008), is consistent with the analysis in Ligon. Moore arguably held that a police violation of a state statute prohibiting arrest for a citation-only offense was irrelevant to the reasonableness of the arrest under the Fourth Amendment, given that there was unquestionably probable cause.
225. Id. at 171.
226. But Moore did not change the meaning of probable cause itself. Moore did not create "free-floating" probable cause, that is, probable cause that something "bad" is afoot despite the inability to characterize that something bad as a violation of a specific statute-in Moore, the state code's prohibition on possessing cocaine with intent to sell it. The Court has, even post-Moore and post-Pringle, been understood by lower courts as still requiring probable cause that a specific crime violating a specific (often state, not federal) statute be shown. See Ligon, 2013 WL 227654, at *2-3. That the Maryland court cited as support for its reading of Maryland law cases applying at trial is irrelevant. State statutory law defines the elements of crimes, and those elements must be shown to be involved to some degree of confidence for probable cause to exist. The Maryland court held that trial-level case law involving those elements' meanings was equally relevant at the probable cause stage.
227. Pringle, 540 U.S. at 370-72.
228. See TASLITZet al., supra note 87, at 188-93 (discussing pre-Pringle precedent).
229. See id. at 193-95 (suggesting this explanation).
230. See id. (suggesting this explanation).
231. See id. (describing some alternative interpretations).
232. See, e.g., LEE EPSTEIN S., et al., THE BEHAVIOR OF FEDERAL JUDGES: A THEORETICAL AND EMPIRICAL STUDY OF RATIONAL CHOICE 106-49 (2013) (analyzing empirical data demonstrating that United States Supreme Court Justices frequently vote in an ideological manner where there is room in the law for disagreement).
233. A "heuristic" is a rule of thumb, but these heuristics evolved, it should be noted, because they are often right; thus, they are not always a source of bias.
234. See GERD GIGERENZER, GUT FEELINGS: THE INTELLIGENCE OF THE UNCONSCIOUS 47-49 (2007).
235. See generally KELMAN, supra note 107, at 229-41 (comparing the "heuristics and biases" school, which focuses on heuristics as leading to logical flaws with the "fast and frugal heuristics" school, which focuses more on the evolved benefits of heuristics, finding some truth in each position, depending upon the circumstances).
236. Charles Yablon, The Meaning of Probability Judgments: An Essay on the Use and Misuse of Behavioral Economics, 2004 U. ILL. L. REV. 899, 925 (discussing the availability heuristic, but noting that his point also applies to the representativeness heuristic).
237. See GERD GIGERENZER, ADAPTIVE THINKING: RATIONALITY IN THE REAL WORLD 250 (2000).
238. See John Leubsdorf, Evidence Law as a System of Incentives, 95 IOWA L. REV. 1621, 1624 (2010) ("Adversary incentives provide a familiar and powerful, but ultimately incomplete, justification for entrusting the presentation of evidence to the parties rather than to the courts.").
239. Andrew E. Taslitz, Forgetting Freud: The Courts' Fear of the Subconscious in Date Rape (and Other) Cases, 17 B.U. PUB. INT. L.J. 145, 155-57, 169-80 (2007) (elaborating on these themes and discussing judicial attitudes toward them)
240. Andrew E. Taslitz, Willfully Blinded: On Date Rape and Self-Deception, 28 HARV. J.L. & GENDER 381, 392-94 (2005) [hereinafter Taslitz, Willfully Blinded] (explaining that there are degrees to which thoughts are inaccessible to consciousness, that some can be made accessible by effort, and that others, though never accessible to consciousness, can nevertheless be altered by conscious action and behavior; and explaining that there is often constant interaction between conscious and subconscious thought).
241. See EPSTEIN et al., supra note 140, at 237-53 (concluding that ideology plays a relatively small role in decisionmaking by federal district court judges and that legalistic decisionmaking based upon precedent plays a far greater role; though ideology's influence is greater where district judges have more discretion, it is still modest; and the likely causes of this result include a "selection effect" (cases least subject to legalistic thinking pass on to the appellate courts), effort aversion, and reversal aversion).
242. See Maryland v. Pringle, 540 U.S. 366, 372-73 (2003).
243. See Taslitz, Individualized Suspicion, supra note 29, at 146.
244. See id. at 178.
245. See id. at 154-55, 173-79.
246. See id. at 150, 152-53, 165-68 (critiquing the precedent).
247. RICHARD A. POSNER, HOW JUDGES THINK 84-85 (2008) (discussing the effect of the institutional environment and of precedent on judicial reasoning).
248. See Kerr, supra note 88, at 137-39.
249. See id. at 137-39. Although Kerr asserts that judicial determinations regarding bad faith proceed "by instinct" and that judges "may not know exactly why something is wrong," he also claims that judges can learn to identify these instincts as reason to "resist finding probable cause" because "something is amiss." Id. Kerr further argues that such determinations are sufficiently conscious to produce "estimates" that "accurately assess probable cause."
250. Id. at 132.
251. See Whren v. United States, 517 U.S. 806, 813 (1996).
252. See infra text accompanying notes 361-368 (discussing missing evidence and
253. storytelling as central to the concept of evidentiary "weight").
254. See Eric J. Miller, Role-Based Policing: Restraining Police Conduct "Outside the Legitimate Investigative Sphere," 94 CALIF. L. REV. 617, 621-23 (2006) (explaining the difference between rule-based and role-based authority).
255. See H.L.A. HART, THE CONCEPT OF LAW 94 (2d ed. 1994)
256. Miller, supra note 160, at 621-22, 634-35 (providing examples of rule-based jurisprudence).
257. Rules are most needed under these circumstances because there is the greatest danger of police abuse yet the most need for effective police action.
258. See Miller, supra note 160, at 644-45.
259. See id. at 635-37. Correspondingly, rule-based authority fails when the rules are poorly enforced or "riddled with exceptions," or when police resist internalization.
260. See id. At 654-55.
261. They do so by fostering the legitimacy of the police and the legal system under which they operate.
262. See id. at 635-37.
263. See id. at 622-23, 635, 638-40.
264. See id. at 632-34, 638-40.
265. See Tracey L. Meares, Norms, Legitimacy and Law Enforcement, 79 OR. L. REV. 391, 413-14 (2000)
266. Tracey L. Meares, Place and Crime, 73 CHI.-KENT L. REV. 669, 698-700 (1998)
267. Tracey L. Meares & Dan M. Kahan, Law and (Norms of) Order in the Inner City, 32 LAW & SOC'Y REV. 805, 820-21 (1998)
268. Miller, supra note 160, at 633-34.
269. See GEORGE L. KELLING & CATHERINE COLES, FIXING BROKEN WINDOWS: RESTORING ORDER AND REDUCING CRIME IN OUR COMMUNITIES (1998).
270. See Miller, supra note 160, at 618-20.
271. See id. at 651-52
272. William J. Stuntz, Local Policing After the Terror, 111 YALE L.J. 2137, 2153-54 & n.53 (2002) ("Since crimes can include such things as traffic offenses. this power gives the police the ability to search, without a warrant, almost anyone in a vehicle, plus (depending on the stringency of local curfews and quality-of-life ordinances) a large portion of the pedestrian population to boot.").
273. See Miller, supra note 160, at 622-23.
274. See id. at 632-33, 666-71.
275. See id. at 636-37, 657-58.
276. See id. at 658-63 (discussing "role confusion" as a policing tactic).
277. See id. at 646-51, 658-63.
278. See MARLEEN EASTON et al., BLURRING MILITARY AND POLICE ROLES (2010)
279. Peter B. Kraska, The Military-Criminal Justice Blur: An Introduction, in MILITARIZING THE AMERICAN CRIMINAL JUSTICE SYSTEM: THE CHANGING ROLES OF THE ARMED FORCES AND THE POLICE 3, 5-8 (2001).
280. See Miller, supra note 160, at 658-63.
281. See id. at 646-51, 657-63.
282. Cf. id. at 627-28 (discussing "under-policing")
283. id. at 665 (discussing the need for attention to law enforcement resources allocated to traditional reactive rather than novel preventative policing)
284. Alexandra Natapoff, Underenforcement, 75 FORDHAM L. REV. 1715, 1716-19 (2006).
285. Miller, supra note 160, at 636-37, 650-52.
286. Andrew E. Taslitz, Respect and the Fourth Amendment, 94 J. CRIM. L. & CRIMINOLOGY 15, 15 (2003).
287. See Miller, supra note 160, at 645-51, 657-58, 660-63.
288. Tom R. Tyler, Trust and Law Abidingness: A Proactive Model of Social Regulation, 81 B.U. L. REV. 361, 363-65 (2001) (discussing the dangers of police's "command and control" model dominating).
289. See Miller, supra note 160, at 625-28
290. Natapoff, supra note 181.
291. See Miller, supra note 160, at 638-42, 645-51.
292. David A. Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69 IND. L.J. 659, 666-69 (1994)
293. David A. Harris, Particularized Suspicion, Categorical Judgments: Supreme Court Rhetoric Versus Lower Court Reality Under Terry v. Ohio, 72 ST. JOHN'S L. REV. 975, 988 (1998)
294. Miller, supra note 160, at 638-42, 645-51
295. Carol S. Steiker, Counter-Revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers, 94 MICH. L. REV. 2466, 2492-93 (1996).
296. See Miller, supra note 160, at 645-51 (summarizing illustrative cases).
297. See id. at 646-47 ("Now, almost any evidence that a police officer can proffer will suffice to provide reasonable suspicion. In the reasonable suspicion totality-of-thecircumstances calculus, the officer's training is not just one fact among many, but one that operates as a lens through which to view the other facts. The officer's ability to explain how otherwise-innocent conduct is, under the circumstances and properly understood, suspicious, characterizes the police as well-trained, experienced experts responding to 'imponderable evidence' of criminality.")
298. Taslitz, Individualized Suspicion, supra note 29, at 166-68, 196-97 (analyzing how judicial deference to officer judgments makes the latter's explanations meaningless and eliminates effective accountability).
299. Terry v. Ohio, 392 U.S. 1, 33 (1968) (Harlan, J., concurring)
300. see also id. at 21 ("[T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.").
301. See Miller, supra note 160, at 650-51 (discussing racial bias)
302. Taslitz, Individualized Suspicion, supra note 29, at 162-64 (discussing stereotyping).
303. See Miller, supra note 160, at 646-47
304. Taslitz, Individualized Suspicion, supra note 29, at 166-67.
305. See Miller, supra note 160, at 636.
306. Miller thus recommends that other institutions, not the police, have the primary responsibility for role-based crime-preventative action.
307. See id. at 663-65.
308. See id. at 645-51.
309. See TASLITZet al., supra note 87, at 201, 211-13 (analyzing the consequences of the Court's abandonment of the old Aguilar-Spinelli rule). The Aguilar-Spinelli rule, it should be noted, required courts to consider multiple factors but in a more orderly, guided fashion than is true of Illinois v. Gates, 462 U.S. 213 (1983). Such multifactor guided tests have the added virtue of helping to reduce the grip of cognitive biases on judicial reasoning.
310. See supra note 130 (discussing how scripts, checklists, and multifactor tests serving as reminders of other considerations can help to reduce judicial cognitive biases).
311. See supra text accompanying notes 86-88 (discussing this insistence).
312. See Kaplow, supra note 85, at 751, 815 (arguing that standards of proof create incentives for individual and institutional actors to change their behavior accordingly; for example, high standards may effectively authorize certain conduct that cannot be proven to the level required by the relevant standard).
313. See EPSTEINet al., supra note 140, at 106-49 (arguing that the Court's Justices often vote in an ideological fashion)
314. Thomas Y. Davies, The Supreme Court Giveth and the Supreme Court Taketh Away: The Century of Fourth Amendment "Search And Seizure" Doctrine, 100 J. CRIM. L. & CRIMINOLOGY 933, 934 (2010) ("[O]ver roughly the last four decades the continuing conservative majority of the justices of the Supreme Court have reduced Fourth Amendment doctrine to little more than a rhetorical apparition.").
315. Cf. Russell D. Covey, Longitudinal Guilt: Repeat Offenders, Plea Bargaining, and the Variable Standard of Proof, 63 FLA. L. REV. 431, 444 (2011) (arguing that our system effectively allows prosecutors to lower the standard of proof for repeat offenders).
316. See Miller, supra note 160, at 645-51 (making similar point but not connecting it to the absence of a standard of proof as one potential contributor). Judicial abdication of significant limits on officer discretion via undue deference to officer judgments and, at best, vaguely stated bases for those supposedly intuitive judgments may also create a move toward role-based policing authority by reducing the required "weight" of evidence and degree of serious police accountability.
317. It is important to note that rule-based and role-based policing are less a dichotomy than points on a spectrum.
318. See Miller, supra note 160, at 621-23 (implying this point). Similarly, a standard of proof need not be imbued with an unachievable absolute clarity capable of mechanical application to be of value in guiding and limiting both judicial and officer discretion.
319. Cf. LAUDAN, supra note 68, at 74-87 (arguing for a less-than-mechanical verbal formulation of the beyond a reasonable doubt standard of proof that he sees as far superior to the current versions of the standard which, in his view, are not standards of proof at all). There is therefore no inconsistency between my defense of subjective probabilities over objective ones in the next subsection and the need for a standard of proof that limits officer discretion.
320. See Terence Anderson et al., ANALYSIS OF EVIDENCE 228-29 (2d ed. 2005).
321. See Yablon, supra note 142, at 907-08.
322. See id. at 909.
323. See id. at 901-03.
324. See id. at 902.
325. See id. at 901-02.
326. See id. at 910
327. L. JONATHAN COHEN, AN INTRODUCTION TO THE PHILOSOPHY OF INDUCTION AND PROBABILITY 59 (1989). This quote from Yablon speaks about the degree of terminology of "subjective probability" referring only to beliefs or Yablon's terminology describing subjective probability as rational beliefs, the results for the legal system are the same.
328. RICHARD JEFFREY, SUBJECTIVE PROBABILITY: THE REAL THING 79 (2004).
329. I thus perhaps disagree with philosopher Larry Laudan when he seemingly argues that a standard of proof relying on subjective judgments, including presumably subjective probability judgments, is no standard of proof at all because it does not give the decisionmaker an objective guidepost against which to measure whether his subjective belief is justified.
330. LAUDAN, supra note 68, at 79-81. Determining whether subjective beliefs held with the necessary degree of certainty are justified based on the evidence and rational inferences from it is a necessary part of what properly designed legal proceedings encourage decisionmakers to do. It is why juries deliberate and judges in many instances must verbally defend their conclusions in great detail, often in the form of written opinions. The decisionmaker must then ask herself, "Is my subjective sense of having the required degree of confidence in my judgment justified based upon the evidence and rational inferences from it?" Only if that answer is "yes" is the standard met. Accountability mechanisms further reduce the likelihood of error and increase the likelihood of error correction. Perhaps we can better articulate the meaning of a particular standard of proof for a decisionmaker, but subjective probabilities, as here defined, do not render the standard meaningless.
331. 214 Yablon, supra note 142, at 911.
332. 215 See id. at 904.
333. Id. at 909.
334. See id. at 903, 941.
335. "Base rates" are also sometimes called "prior probabilities." See ANDERSON et al., supra note 204, at 251, 399 (explaining prior probabilities). In objectivist terms, a base rate is the prior probability of an event's occurring in the relevant population before using a technique with a known error rate. Concerning probable cause or reasonable suspicion, the base rate is the rate of occurrence of the relevant crime before using an investigative technique, such as a drug-sniffing dog.
336. Goldberg, supra note 120, at 32-33. For example, suppose that a dog has a false positive rate (the rate of reacting to cocaine when it is not present) of only.2%. That does not mean that there is a 99.8% likelihood when he reacts to the supposed presence of cocaine that he is correct. If cocaine is present in stopped vehicles only one in every 10,000 times, then the dog's false positive rate means that he will falsely alert to cocaine twenty times in every 10,000 searches (10,000 x.002). But if he has a zero false negative rate (he never fails to alert when he should), he will accurately alert once (since cocaine is present in the one in 10,000 cars). But that means that, of the twentyone total times that he alerts, he is right only once-an accuracy-in-alerting rate of 5%.
337. See id. at 33 (offering this example). Being correct 5% of the time should not establish probable cause or reasonable suspicion under any theory. The example thus illustrates why having no general false positive rates is meaningless without also knowing base rates.
338. Yablon, supra note 142, at 910. For a discussion of the importance of keeping in mind base rates
339. BREST & KRIEGER, supra note 111, at 225-35.
340. Yablon, supra note 142, at 910.
341. See id. at 907-08.
342. Andrew E. Taslitz, Myself Alone: Individualizing Justice Through Psychological Character Evidence, 52 MD. L. REV. 1, 34-38 (2003) (illustrating how this can be done in the context of psychological clinical judgment, particularly in certain forensic settings)
343. Yablon, supra note 142, at 911-12. Rephrased, the objective assessment can be used as an anchor, with the subjective assessment adjusting from the anchor upward or downward. This is standard in risk assessment of the likelihood of criminal reoffending, for example, a person may have a high-risk score but is now a paraplegic, has found God, or has successfully completed a drug-treatment program.
344. CHRISTOPHER SLOBOGIN & MARK R. FONDACARO, JUVENILES AT RISK: A PLEA FOR PREVENTIVE JUSTICE 71 (2011)
345. Christopher Slobogin, Risk Assessment and Risk Management in Juvenile Justice, 27 CRIM. J. 10 (2012).
346. Yablon, supra note 142, at 941.
347. id. at 908-09.
348. GIGERENZER, supra note 141, at 60-63 (explaining that heuristics evolved because of their frequent cognitive benefits).
349. BREST & KRIEGER, supra note 111, at 368 ("Like other heuristics, the affect heuristic can conduce to good decision making, but it also has the potential to distort the process. Whether intuition and affect play a constructive role in decision making depends on the nature and context of the decision at hand.").
350. Yablon, supra note 142, at 920-21.
351. See id. at 928-29.
352. Professor Yablon made the point this way: When we believe that the causal processes involved in the event we are predicting are uniform or stochastic and repetitive in nature, like those involving purely physical processes such as tire failures or roulette wheels, we are more likely to rely purely or primarily on statistical data. Conversely, when we believe the event being predicted will be the result of a relatively unique and unusual confluence of many nonrecurring factors or involving individual decision makers, such as the 2004 Democratic presidential nomination, we are more likely to put our faith in the subjective assessments of the knowledgeable observers.
353. Id. at 903
354. Id. at 905 (noting that subjective probability judgments under the right conditions "may be the best available response to uncertainty")
355. id. at 922 ("As Kahneman and Tversky were well aware, the effect and usefulness of availability are more difficult to assess when dealing with probabilities of individual events.")
356. id. at 926-28 (arguing that Kahneman and Tversky's writings are best understood as cautioning decisionmakers to consider the proper role of heuristics in making subjective probability judgments)
357. Amos Tversky & Daniel Kahneman, Availability: A Heuristic for Judging Frequency and Probability, in JUDGMENT UNDER UNCERTAINTY, supra note 106, at 163, 175-76 (explaining that, where objectively correct answers cannot be known, as in "many real-life situations where probabilities are judged," "[n]evertheless, the availability heuristic may be applied to evaluate the likelihood of such events," then giving as an example a psychologist involved in making a clearly subjective probability judgment about the diagnosis and proper treatment of a particular patient).
358. Yablon, supra note 142, at 937-39.
359. Paul Slovic, Trust, Emotion, Sex, Politics and Science: Surveying the Risk-Assessment Battlefield, in THE PERCEPTION OF RISK 390, 390 (Paul Slovic ed., 2000).
360. Yablon, supra note 142, at 937-39.
361. Slovic, supra note 234, at 118-19.
362. Yablon, supra note 142, at 937-39
363. Paul Slovic et al., Rational Actors or Rational Fools: Implications of the Affect Heuristic for Behavioral Economics, 31 J. SOCIOECON. 329, 332, 339 (2002) (arguing that images, marked by positive and negative affective feelings, guide judgment and decisionmaking; that is, people use an affect heuristic to make judgments).
364. Yablon, supra note 142, at 938.
365. Slovic, supra note 234, at 415.
366. Yablon, supra note 142, at 938.
367. Id. at 937-38.
368. See id. at 941-42.
369. Professor Sunstein bristles at the idea that there is no such thing as an objectively verifiable "risk." Cass R. Sunstein, The Laws of Fear, 115 HARV. L. REV. 1119, 1147 (2002). Professor Yablon sees the debate as partly being about when to defer to experts and what weight to accord their probability judgments.
370. See Yablon, supra note 142, at 941. Says Yablon, "when the risk involved appears subject to accurate assessment through frequentist ferreting out crime." Spinelli v. United States, 393 U.S. 410, 415 (1969) (citation omitted). Furthermore, police are subject to many heuristics that under the circumstances facing police are likely to lead them into error.
371. Taslitz, Cognitive Obstacles, supra note 29, at 40-47. There is, therefore, no reason for courts to defer to officer judgments in probable cause determinations.
372. ANDERSON et al., supra note 204, at 246.
373. Engel, supra note 83, at 436 (arguing that the preponderance of evidence standard in the United States reflects objective probability concepts but that the beyond a reasonable doubt standard embraces a more subjective philosophy). I find little support, however, in Engel's piece for his assertion that a more objectivist quality is embraced by the preponderance standard. I find the argument unconvincing, in any event, for reasons noted earlier and to come, and I do not see it as the only or best way to understand that standard, and finally, I believe that the objectivist concept fails in practice because it is not psychologically realistic. Engel is likewise a critic of objectivist approaches to the standard of proof, so I quibble only with his assertion that the law embraces them in the preponderance burden.
374. ANDERSON et al., supra note 204, at 230.
375. Taslitz, Individualized Suspicion, supra note 29, at 146; supra text accompanying notes 133-135. Part of the appeal of the subjectivist approach to me is precisely that it embraces the idea that a unique, individualized assessment is involved (albeit informed by some generalizations) and that that stance serves important social goals.
376. ANDERSON et al., supra note 204, at 266-69 (discussing transcase versus case-specific generalizations and their role in individualized proof)
377. Taslitz, Individualized Suspicion, supra note 29, at 173-85.
378. EPSTEIN et al., supra note 140, at 241 ("Courts of appeals apparently exert sufficient control over district judges, even when the appellate judges are adhering scrupulously to a deferential standard of review, to dissuade the district judges from allowing ideology to determine their decisions.")
379. Taslitz, Cognitive Obstacles, supra note 29, at 65-67 (discussing the positive effects of accountability, albeit illustrating these effects in the context of policing).
380. Luke Meier, Probability, Confidence, and the Constitutionality of Summary Judgment (Dec. 17, 2012) (unpublished manuscript), available at ssrn.com/abstract=2190257 (distinguishing in the civil context between objective probability and "confidence" in a way consistent with much of my argument here).
381. McCauliff, supra note 104, at 1324-33 (discussing judicial survey on burdens of proof)
382. Slobogin, supra note 27, at 20-21.
383. Slobogin, supra note 27, at 20 (explaining that Slobogin's definition "adopts the preponderance standard, which is likely the way most judges think about probable cause").
384. McCauliff, supra note 104, at 1303, 1307, 1327.
385. The judges' estimates varied widely, however, with the approximately 47% figure being the arithmetic mean or average of all the individual estimates
386. TASLITZ A et al., supra note 87, at 238-40.
387. Andrew E. Taslitz, Patriarchal Stories I: Cultural Rape Narratives in the Courtroom, 5 S. CAL. REV. L. & WOMEN'S STUD. 387, 404, 424-29 (1996).
388. See id. at 425-26.
389. Joseph J. Romm, LANGUAGE INTELLIGENCE: LESSONS ON PERSUASION FROM JESUS, SHAKESPEARE, LINCOLN, AND LADY GAGA 101 (2012).
390. See id. at 102.
391. See id. at 103.
392. GEORGE LAKOFF, MORAL POLITICS: HOW LIBERALS AND CONSERVATIVES THINK (2d ed. 2002)
393. GEORGE LAKOFF & MARK JOHNSON, METAPHORS WE LIVE BY (2003).
394. LAKOFF, supra note 265, at 65-140 (giving examples of well-worn metaphors that still structure our thoughts, the primary ones discussed being rooted in images of parenting)
395. LAKOFF & JOHNSON, supra note 265, at 14-19 (similar)
396. ROMM, supra note 262, at 110 ("Some similes and metaphors strike such a strong chord that they become a permanent part of our culture.")
397. id. at 117 (arguing that some overused metaphors become "dying metaphors," losing their vividness and emotional power).
398. PENNSYLVANIA SUGGESTED STANDARD CIVIL JURY INSTRUCTIONS § 1.42 (3d ed. 2005) (using the ordinary balance scale as the explanatory metaphor in jury instructions defining the preponderance standard of proof).
399. LAKOFF, supra note 265, at 44-64 (discussing the continuing power of metaphors involving balance, albeit describing the primary one as "moral accounting"-a balancing of books).
400. I discuss other alternatives infra in the text accompanying notes 306-308, but to say that there are logically conceivable alternative metaphors is not the same as saying those metaphors have the same power, either in our legal or broader political culture.
401. AHARON BARAK, PROPORTIONALITY: CONSTITUTIONAL RIGHTS AND THEIR LIMITATIONS 343 (Doron Kalir trans., 2012) ("'[B]alancing' is an analytical process that places the proper purpose of the limiting law on one side of the scales and the limited constitutional right on the other, while balancing the benefit gained by the proper purpose with the harm it causes to the right.").
402. MARGARET ATWOOD, PAYBACK: DEBT AND THE SHADOW SIDE OF sWEALTH 9-19 (2008) (discussing the importance of debt as central to all these areas and explaining how the concept is rooted in an idea of balance, albeit of equal balance, in our culture)
403. Andrew E. Taslitz, Reciprocity and the Criminal Responsibility of Corporations, 41 STETSON L. REV. 73 (2011) (extending these and related concepts to legal categories, particularly in the criminal law).
404. John C. Coffee, Jr., Does "Unlawful" Mean "Criminal"?: Reflections on the Disappearing Tort/Crime Distinction in American Law, 71 B.U. L. REV. 193, 194-96 (1991) (explaining that tort negligence occurs when the likely social harm of conduct outweighs its benefits, though arguing against a similar test in criminal law)
405. Leslie Yalof Garfield, A More Principled Approach to Criminalizing Negligence: A Prescription for the Legislature, 65 TENN. L. REV. 875 (1998) (arguing for criminalizing ordinary tort negligence under certain circumstances).
406. Dennis E. Curtis & Judith Resnik, Images of Justice, 96 YALE L.J. 1727, 1765 (1987) ("The blindfold is not the only indication in justice imagery of the complex relationship between judge and sovereign. The scales have relevance here as well; the scales may suggest that an objective standard, independent of the whim of any ruler (as well as of the judge), governs the outcome. The king's thumb is poised to tip the scales, but Justice's firm grip provides some security. Similarly, the sword might be understood as giving Justice an independent base of power; a strength beyond that given to her by her sovereignemployer.").
407. ANDERSON et al., supra note 204, at 260-61, 265.
408. See id. at 148, 156-57.
409. Nancy Pennington & Reid Hastie, Reasoning in Explanation-Based Decision Making, 49 COGNITION 123, 136 (1993).
410. Dan Simon, A Third View of the Black Box: Cognitive Coherence in Legal Decision Making, 71 U. CHI. L. REV. 511, 522-23 (2004).
411. Engel, supra note 83, at 458 ("The psychological correlate of the standard of proof is confidence."). Some experiments arguably suggested that higher burdens of proof merely led subjects to discount even more the influence of evidence contrary to their intuitively derived result.
412. Simon, supra note 279, at 524-25, 528-29, 531-32. But, "[h]appily, this interpretation seems to be wrong."
413. SAUL M. KASSIN & LAWRENCE S. WRIGHTSMAN, THE AMERICAN JURY ON TRIAL: PSYCHOLOGICAL PERSPECTIVES 156 (1988) (discussing differing effects of the differing standards)
414. Engel, supra note 83, at 460
415. Norbert L. Kerr et al., Guilt Beyond a Reasonable Doubt: Effects of Concept Definition and Assigned Decision Rule on the Judgments of Mock Jurors, 34 J. PERSONALITY & SOC. PSYCHOL. 282, 293 (1976) (offering empirical evidence that standards of proof do affect reasoning)
416. Andreas Glöckner & Christoph Engel, Can We Trust the Intuitive Juror? An Experimental Analysis 18, 22-23 (Max Planck Inst. for Res. on Collective Goods, Preprint No. 2008/36, 2008), available at http:/www.coll.mpg.ed/pdf_dat/2008_36online.pdf. I am using the word "confidence" in its commonsense meaning, largely synonymous with degree of certitude of a belief, and not in the technical sense that the term "confidence" has in certain probability judgments.
417. NEIL J. SALKIND, STATISTICS FOR PEOPLE WHO (THINK THEY) HATE STATISTICS 134-50 (3d ed. 2008) (explaining statistical "significance" as a frequentist, objectivist measure of the degree of "confidence" in stating that a particular finding is true).
418. Antonio Damasio, DESCARTES' ERROR: EMOTION, REASON, AND THE HUMAN BRAIN 173 (1994)
419. Antoine Bechara & Antonio Damasio, The Somatic Marker Hypothesis: A Neural Theory of Economic Decisions, 52 GAMES & ECON. BEHAV. 336, 339 (2005) (linking somatic markers to decisionmaking processes)
420. Engel, supra note 83, at 464.
421. Engel, supra note 83, at 463-65.
422. Engel, supra note 83, at 464
423. DAMASIO, supra note 281, at 173.
424. Engel, supra note 83, at 464
425. DAMASIO, supra note 281, at 173.
426. Engel, supra note 83, at 461.
427. See id. at 454-57, 465-66.
428. Id. at 463.
429. Christoph Engel, The Psychological Case for Obliging Judges to Write Reasons, in THE IMPACT OF COURT PROCEDURE ON THE PSYCHOLOGY OF JUDICIAL DECISION MAKING 73, 88-89, 92 (Christoph Engel & Fritz Strack eds., 2007).
430. Engel, supra note 83, at 463-64 (stating that under the preponderance of the evidence standard, "[a]ccountability is reduced to avoiding gross errors").
431. TASLITZ et al., supra note 87, at 238-39 (discussing warrant procedures).
432. Engel, supra note 289, at 75-79.
433. Further support for the proposition that the preponderance standard does not create an undue burden comes from the number of judges who seem to embrace it without complaint.
434. Mathews v. Eldridge, 424 U.S. 319, 335 (1976)
435. Steven M. Salky & Blair Brown, The Preponderance of Evidence Standard at Sentencing, 29 AM. CRIM. L. REV. 907, 911-18 (1992) (using the Eldridge test to determine the proper standard of proof in the sentencing phase of criminal cases).
436. Donald Dripps, The "New" Exclusionary Rule Debate: From "Still Preoccupied With 1985" to "Virtual Deterrence," 37 FORDHAM URB. L.J. 743, 768-72 (2010). Dripps found that, despite the exclusionary rule and Dripps's conclusion that in practice the standard of proof for probable cause hovers around 50%, hit rates for searches with warrants are substantially higher than for warrantless searches. For example, warrant-based hit rates range from 74% to 89% but warrantless hit rates hover below 50%. Implicitly applying an objective notion of probability, Dripps seems to suggest that these higher hit rates for warrant-based searches reflect a kind of "probable-cause-plus" standard of proof because they well exceed the 50% expected success rate required by probable cause.
437. PETER J. HENNING et al., MASTERING CRIMINAL PROCEDURE: THE ADJUDICATORY STAGE 129-30 (2012) (discussing limited discovery available in most criminal cases).
438. Taslitz, supra note 183, at 93.
439. Andrew E. Taslitz, Wrongly Accused Redux: How Race Contributes to Convicting the Innocent: The Informants' Example, 37 SW. U. L. REV. 1091, 1124-31 (2008) (reviewing data suggesting that police and magistrates may grant warrants against black suspects on much less reliable evidence than warrants issued against white suspects).
440. CRIMINAL JUSTICE STANDARDS ON LAW ENFORCEMENT ACCESS TO THIRD PARTY RECORDS §§ 25-5.2(a)(i), 25-5.3(a)(i) (2012).
441. At least this was the fear expressed by opponents of the escape option when it was debated in the drafting committee.
442. Alabama v. White, 496 U.S. 325, 330-31 (1990).
443. McCauliff, supra note 104, at 1328 tbl.4.
444. White, 496 U.S. at 330.
445. Slobogin, supra note 27, at 21-23.
446. Andrew Guthrie Ferguson, Predictive Policing and Reasonable Suspicion, 62 EMORY L.J. 259, 265-70 (2012).
447. See id. at 265-269, 287.
448. See id. at 287.
449. See id. at 287-292.
450. Alabama v. White, 496 U.S. 325, 330-31 (1990) (describing reasonable suspicion as less demanding than probable cause in terms of the quality and quantity of information required, but not mentioning any difference in the degree of individualization).
451. Taslitz, Individualized Suspicion, supra note 29, at 173-85.
452. Ferguson, supra note 312, at 38-40 ("[N]o matter the type of predictive information (tip, profile, or high crime area), the information alone is never enough to control the reasonable suspicion analysis."). Erica Goldberg, on the other hand, argues that certain types of objective probability data can themselves individualize suspicion, even to the point of establishing probable cause.
453. Goldberg, supra note 120, at 25-43. To clarify her position, assume that fingerprinting, DNA analysis, or dog-sniffing of contraband is 100% accurate. If so, then finding a print matching a defendant's fingerprints in a home at a burglary scene (if he had no permission to be in the home), the defendant's DNA in semen in a rape case, or a dog alerting to drugs in a car trunk in a cocaine-possession case would all establish probable cause. That would be true both using objective and subjective ideas of probability. Of course, as Goldberg recognizes, in the real world there are error rates and they may substantially complicate the analysis.
454. See id. at 22-31. I view error rates as most relevant to the qualitative inquiry of probable cause determination, as discussed in the next section of this Article. Goldberg rejects, as does Ferguson, the use of "group-based" statistics as alone being insufficient to establish the individualization necessary for reasonable suspicion and probable cause.
455. See id. at 20-22. She does, however, accept for situations outside of the ones where individualized objective data is available that objective quantitative analysis cannot control. But she also accepts Kerr's idea that unexplained intuition can be decisive and that there should be no standard of proof in many (Kerr would say all) probable cause analyses, positions I reject in this Article.
456. See id. at 45-58. Nor does Goldberg examine, as I do here, subjective probability as the conception that should and does in practice govern probable cause nor the relationship between subjective and objective probabilities.
457. Other philosophers, such as true Bayesians, view weight as a part of the probability calculus-not separate from it. But I agree with William Twining and his colleagues that these differing conceptions of weight are usefully understood as each having a useful role in the practical tasks of the law. Anderson et al., supra note 204, at 250-61 (discussing different conceptions of weight). Rephrased, much like the blind man feeling different parts of the elephant, different conceptions of weight convey different aspects of or perspectives on reality, all of which are useful and only all of which together provide a full picture of what the legal "elephant" (here, probable cause or reasonable suspicion) looks like.
458. See id. at 261 ("In summary, we have provided four quite different interpretations of what is meant by the probative force, weight, or strength of evidence. Each view tells us something valuable about this important credential of evidence, but no single view says all there is to be said."). I am thus not concerned if some thinkers see an inconsistency between my referring to weight both as a concept distinct from rationally critiqued subjective probability judgments and simultaneously as part of those judgments. Moreover, even if "weight" is not considered in some technical sense as distinct from subjective probability as here discussed, treating weight as if it is separate allows for greater clarity when then returning to discuss how it may in fact affect probability judgments; lawyers certainly speak of weight and probability as different yet connected concepts.
459. Perhaps the best way to understand this discussion is really as a question of the completeness, quality, and persuasiveness of the evidence. Let us vary the hypothetical above and assume that a nationwide sample of drug-sniffing dogs showed a 75% false positive rate. In an individual case, however, a local officer claims that his impression is that his local police force's false positive rate is only 50% based upon his experience. That seems to cry out, however, for empirical data supporting such a statement. Although the statement alone suggests a 50% probability, the statement is based on incomplete evidence, thus weak weight. Contrast this example with one in which the prosecution in fact produces a well-designed study involving a statistically significant random sample of local police dog success rates. That study indeed shows a 50% local false positive rate. Now the evidence is complete and thus weightier. It still does not, however, necessarily establish probable cause that a particular defendant committed a crime or possessed contraband because one local police dog alerted to that defendant. That one alert is a unique situation in the realm of probable cause determination, and thus is not subject to frequentist probability judgments alone. The ultimate question is one of what rational inferences support a subjective probability judgment that this individual defendant is guilty or possesses the contraband, though frequentist probability judgments may help to inform that analysis. I thank Professor Charles Yablon for this example in his comments on an earlier draft of this Article.
460. Ohm, supra note 17, at 1525.
461. See id. at 1525-27 (offering other examples).
462. See id. at 1526-35.
463. JOHN OLSSON, WORDCRIME: SOLVING CRIME THROUGH FORENSIC LINGUISTICS 123 (2009) (giving examples of multiple users of a single computer in a criminal investigation).
464. Another term for a "heuristic intrusion detection system" is "anomaly based intrusion detection." See CHARLES P. PFLEEGER & SHARI LAWRENCE PFLEEGER, SECURITY IN COMPUTING 468 (3d ed. 2003) ("An intrusion detection system (IDS) is a device, typically another separate computer, that monitors activity to identify malicious or suspicious events.") (emphasis omitted); id. at 469 ("Heuristic intrusion detection systems, also known as anomaly based, build a model of acceptable behavior and flag exceptions to that model."); id. at 470 ("Because signatures are limited to specific, known attack patterns, another form of intrusion detection becomes useful. Instead of looking for matches, heuristic intrusion detection looks for behavior that is out of the ordinary.")
465. BAIJU SHAH, SANS INST. INFOSEC READING ROOM, HOW TO CHOOSE INTRUSION DETECTION SOLUTION, (2001), available at http://www.sans.org/reading_room/whitepapers/detection/chooseintrusion-d etection-solution_334 (offering further detail on heuristic intrusion detection systems). "Malware" is "software intended to damage a computer system."
466. Definitions of 'Malware,' ASK, http://www.ask.com/dictionary?q=malware&qsrc=999&o=3966 (last visited May 16, 2013). My thanks to Stephen Henderson for suggesting this malware example and all the examples to follow other than those discussing "ordinary crime."
467. Tim Wilson, Next-Generation Malware: Changing the Game in Security's Operations Center, SECURITY DARK READING (Oct. 15, 2012), http://www.darkreading.com/security-monitoring/167901086/security/securi ty-management/240009058/next-generationmalware-changing-the-game-in-secu rity-s-operations-center.html ("In a quiet, secluded spot, a malware author is creating a new piece of code that no antivirus tool has ever seen before. It's not a particularly creative exploit-just a slight tweak on an existing Trojan-but it should be enough to bypass the signature-based defenses of the company he's targeting.")
468. ALEXIS CORT, SANS INST. INFOSEC READING ROOM, ALGORITHM-BASED APPROACHES TO INTRUSION DETECTION AND RESPONSE 12 (2004), available at http://www.sans.org/reading_room/whitepapers/detection/algorithm-based-a pproaches-intrusion-detectionresponse_1413.
469. PFLEEGER & PFLEEGER, supra note 327.
470. Jiri Fridrich & Miroslav Goljan, Robust Hash Functions for Digital Watermarking (2000) (unpublished manuscript), available at http://mathcs.emory.edu/~whalen/Hash/Hash_Articles/IEEE/Robusthashfuncti onsfordigitalwatermarking.pdf.
471. Content ID, YOUTUBE, http://www.youtube.com/t/contentid (last visited May 16, 2013).
472. Fridrich & Goljan, supra note 332; E-mail from Stephen Henderson to Andrew E. Taslitz (Jan. 8, 2013) (on file with author).
473. United States v. Cancelmo, 64 F.3d 804, 808 (2d Cir. 1995) (discussing how the use of alleged narcotics code words cannot generally be solely sufficient for establishing probable cause, though it is relevant and can sometimes be sufficient when combined with other circumstances)
474. Mehagen Doyle, Bad Apples in Cyberspace: The Sexual Exploitation and Abuse of Children over the Internet, 21 WHITTIER L. REV. 119, 129 (1999) ("Many search engines use hidden computer codes to identify sites, relying on keywords and descriptions which are coded by the website operators, but are not visible to people viewing the site. [I]n an effort to increase traffic to their sites (and thus advertising revenue), pornographic web site operators use popular terms." (internal citation omitted) (alterations in original)).
475. OLSSON, supra note 326, at 68-73 (providing an example of an expert forensic linguist discussing a case in which he analyzed coded letters sent to a child by a defendant in an effort to sexually harass and seduce her).
476. Cancelmo, 64 F.3d at 808 (finding that coded drug language alone is insufficient for probable cause).
477. This process is known as "virtual hosting." See Apache Virtual Host Documentation, APACHE, http://httpd.apache.org/docs/2.2/vhosts/ (last visited May 16, 2013) ("The term Virtual Host refers to the practice of running more than one web site (such as company1.example.com and company2.example.com) on a single machine. Virtual hosts can be 'IP-based', meaning that you have a different IP address for every web site, or 'namebased', meaning that you have multiple names running on each IP address. The fact that they are running on the same physical server is not apparent to the end user.")
478. Virtual Hosting, WIKIPEDIA, http://en.wikipedia.org/wiki/Virtual_hosting (last modified Apr. 4, 2013, 1:54 PM).
479. This example modifies, but is inspired by, a real case worked on by forensic linguist John Olsson. See OLSSON, supra note 326, at 11-12.
480. Jeremy Rothstein, Track Me Maybe: The Fourth Amendment and the Use of Cell Phone Tracking to Facilitate Arrest, 81 FORDHAM L. REV. 489, 494 (2012) (explaining the process of triangulation).
481. These examples are also inspired by Olsson. See OLSSON, supra note 326, at 34, 86.
482. LARRY DANIEL & LARS DANIEL, DIGITAL FORENSICS FOR LEGAL PROFESSIONALS: UNDERSTANDING DIGITAL EVIDENCE FROM THE WARRANT TO THE COURTROOM 1-30 (2012) (recounting the degree to which digital evidence and digital traces are ubiquitous and therefore widely important for forensic purposes)
483. JOHN SAMMONS, THE BASICS OF DIGITAL FORENSICS: THE PRIMER FOR GETTING STARTED IN DIGITAL FORENSICS 3 (2012) ("In today's digital world, electronic evidence can be found in almost any criminal investigation conducted. Homicide, sexual assault, robbery, and burglary are just a few of the many examples of 'analog' crimes that can leave digital evidence.").
484. Taslitz, Individualized Suspicion, supra note 29, at 175-85.
485. ANDERSON et al., supra note 204, at 226, 229-30, 247, 250-61. Under some conceptions, "weight" is a truly distinct concept from probability; under other conceptions, it is but one aspect of the probability determination. For my purposes and the practical purposes of the law, which is the correct idea of weight is irrelevant. The gist of my argument would remain the same, and naming weight as a separate concept is a handy, quick way of describing important phenomena in a way that is of practical value.
486. See id. at 227-29, 260-61.
487. Yablon, supra note 142, at 916.
488. ANDERSON et al., supra note 204, at 259.
489. Yablon, supra note 142, at 916.
490. See id. at 916-17.
491. Id. at 917.
492. L. Jonathan Cohen, On the Psychology of Prediction: Whose Is the Fallacy?, 7 COGNITION 385, 388 (1979).
493. Yablon, supra note 142, at 919.
494. Taslitz, supra note 223, at 72-81
495. Yablon, supra note 142, at 929.
496. ANDERSON ET AL., supra note 204, at 148, 152, 155.
497. Tversky & Kahneman, supra note 230, at 177.
498. Yablon, supra note 142, at 929.
499. BREST & KRIEGER, supra note 111, at 219.
500. LISA CRON, WIRED FOR STORY: THE WRITER'S GUIDE TO USING BRAIN SCIENCE TO HOOK READERS FROM THE VERY FIRST SENTENCE 1 (2012) ("Story, as it turns out, was crucial to our evolution-more so than opposable thumbs.")
501. Engel, supra note 83, at 451-53 ("Jurors attempt to create a narrative story from the pieces of evidence they have heard.").
502. BREST& KRIEGER, supra note 111, at 220.
503. Taslitz, supra note 260, at 434-39.
504. id. at 421-22, 474-75.
505. Andrew E. Taslitz, A Feminist Approach to Social Scientific Evidence: Foundations, 5 MICH. J. GENDER & L. 2-11 (1998).
506. PODGOR ET AL., supra note 70, at 131-32 (defining "deliberate" in the test for
507. first-degree murder
508. Taslitz, supra note 260, at 422-24 (discussing "consent")
509. Taslitz, Willfully Blinded, supra note 146, at 384-88 (discussing "reasonableness").
510. Commonwealth v. Webster, 59 Mass. (5 Cush.) 295, 320 (1850).
511. Engel, supra note 83, at 436-38, 441-42.
512. id. at 450-55.
513. ANDERSON ET AL., supra note 204, at 17, 246, 260 (making no distinction on this
514. score between probable cause, preponderance of the evidence, and beyond a reasonable
515. doubt
516. John H. Blume et al., Every Juror Wants a Story: Narrative Relevance, Third Party
517. Guilt and the Right to Present a Defense, 44 AM. CRIM. L. REV. 1069, 1104-06 (2007) (arguing that probable cause as used in the warrant context is inherently narrative in nature and thus serves as a good standard for whether a defendant should be allowed to tell a story of third-party guilt at trial)
518. Myron Orfield, The Exclusionary Rule and Deterrence: An Empirical Study of Chicago Narcotics Officers, 54 U. CHI. L. REV. 1016, 1049 (1987) ("Critics of the exclusionary rule maintain that police perjury neutralizes the effectiveness of the exclusionary rule in practice. They argue both that police can deceive judges with convincing probable cause stories and that judges often 'wink' at perjury in order to permit the convictions of guilty defendants.").
519. Bruce A. Antkowiak, Saving Probable Cause, 40 SUFFOLK U. L. REV. 569, 582 (2007) ("So we find that our search for meaning as to the elusive term 'probable cause' leads us straight to the center of the political earth.").
520. Id. at 587 ("I propose that the judge consult not the ablest and purest of men, but instead seek to understand the process by which the governed functions in its most able and pure state to reach a rational consensus about the core values of justice probable cause exists to serve.").
521. Id. at 596 ("Probable cause is a search for a point along a continuum that cannot be calculated in decimals. Instead, it measures the delicate balance of human freedom and government power in the society we have created.").
522. Davies, supra note 199, at 974 (noting that some Justices have historically fractured ideologically over the meaning of probable cause).
523. HENNING ET AL., supra note 296, at 52.
524. TASLITZ ET AL., supra note 87, at 186, 197-214.
525. Id. at 211-16.
526. EPSTEIN ET AL., supra note 140, at 241, 253 (concluding that appellate precedent in many instances plays a greater role in limiting the influence of ideology on trial courts than on appellate courts).
527. Unfortunately, as noted earlier, the Court in Alabama v. White, 496 U.S. 325, 330 (1990), declared that evidentiary quality, not merely evidentiary quantity, could be lower in the reasonable suspicion than the probable cause determination. But incomplete and shoddy evidence raises the same concerns about the value of any reasonable suspicion judgment as it does of any probable cause judgment. The Court in White was wrong.
528. These are precisely the main categories of "missing evidence" in the probable cause determination of which Kerr complains.
529. Courts routinely learn to handle much more complex matters than how thorough a police investigation was or should be in a particular case. For example, courts, under Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), must learn the science underlying a wide array of forensic evidence. It is a happy consequence of the adversarial system that if courts start demanding certain information to guide their decisions, one or both of the parties will provide it.
530. This analysis assumes either that weight is distinct from subjective probability but can still inform it or that weight is but one aspect of probability.
531. Yablon, supra note 142, at 903.
532. Steven I. Friedland et al., EVIDENCE LAW AND PRACTICE 67-69 (5th ed. 2012).
533. ANDERSON et al supra note 204, at 251-53 (discussing analogous concepts of "likelihood ratios" and "posterior probabilities" in "Bayes" rule as alternative concepts of weight).
534. Yablon, supra note 142, at 912-15 (explaining the flaws in the work of scholars who think that these concepts can be the bases for objective probability concepts in standards of proof).
535. Ohm, supra note 17, at 1532.
536. See id. at 1515.
537. See id. at 1528-29, 1545-47 (discussing cases that "straddle the virtual and real worlds"). Ohm mentions other potential exceptions to his "probable-cause-is-mostlyirrelevant" position, including fishing expeditions, preventing future crimes, and data mining. I touch on these exceptions here and accept the idea that they do not involve probable cause as traditionally conceived. I add only that I do not develop analysis of those topics further here because they raise a host of issues beyond the scope of this piece.
538. OLSSON, supra note 326, at 123 (speculating that police focused on a particular child pornography downloading suspect in a case the author handled based on an anonymous tip, though he believed the website itself may have been the tipster-an irrelevant point if the tip was truly anonymous).
539. Peter Erlinder, Florida v. J.L.-Withdrawing Permission to "Lie with Impunity": The Demise of "Truly Anonymous" Informants and the Resurrection of the Aguilar/Spinelli Test for Probable Cause, 4 U. PA. J. CONST. L. 1 (2001)
540. Chris La Tronica, Could You? Should You? Florida v. J.L.: Danger Dicta, Drunken Bombs, and the Universe of Anonymity, 85 TUL. L. REV. 831 (2011).
541. Clifford, supra note 24, at 104-05 (giving an example in which the harassing nature of certain e-mails turned on the presumed reliability of the recipient-a former girlfriend of the ultimate suspect).
542. Taslitz, Individualized Suspicion, supra note 29 (analyzing the many social benefits of individualized suspicion in the probable cause and reasonable suspicion analyses).
543. See id. at 177-78, 210.