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


The United States Supreme Court has created a general Fourth Amendment principle--the "third-party doctrine"--that leaves information in the hands of third parties unprotected by that Amendment. (1) Yet in an electronic age, increasingly more information concerning personal matters is held by third parties--from banks to insurance companies, Internet service providers, and credit card companies--in readily accessible electronic databases. (2) The American Bar Association has sought to fill this void in criminal cases by adopting its Standards on Law Enforcement Access to Third Party Records. (3) The Standards set out a template for regulating government access to institutional third-party records in criminal investigations. (4) These standards are novel, marking the first time that a well-respected legal organization has provided a template for drafting statutes at the state and federal level to govern this area. (5)

The Standards provide numerous protections and procedures, (6) but among them is a sliding scale of levels of justification--probable cause, reasonable suspicion, and mere relevance (7)--as well as variations in who must make these determinations (courts versus law enforcement). (8) The justification levels vary with the degree of privacy protection a particular record deserves. (9) These justification provisions would, however, change much of the current law. (10) Indeed, the internal debates in the task force that prepared the initial drafts (the "drafting committee") were most fierce concerning this single issue. (11) Law enforcement members were vehemently opposed to any justification requirement whatsoever, predicting that criminal investigations in serious cases would be rendered virtually impossible. The judge, defense lawyers, and law professors on the drafting committee, however, saw some level of justification as essential to prevent governmental overreaching--to regulate, without prohibiting, legitimate law enforcement work.

So strong were law enforcement's objections that the early drafting committee efforts concerning levels of justification were substantially watered-down. This dilution first occurred within the drafting committee, then in the Standards Committee that reviews the drafting committee's work, and later still in the Criminal Justice Section Council that had the final word before sending the Standards to be ratified by the ABA House of Delegates--which they ultimately were. For example, jurisdictions were left with freedom to have reasonable suspicion, not probable cause, as the maximum level of justification required for certain highly private records. (12) Moreover, the Council insisted on a provision declaring that the standards would not alter traditional grand jury practice, essentially leaving current subpoena practice (requiring barely any level of justification) untouched. (13)

The general scheme of varying levels of required justification used by the drafting committee--though not the details--stemmed from the work of leading Fourth Amendment commentator Christopher Slobogin. (14) Importantly, however, the idea of a sliding scale model of justification levels--though not embracing necessarily the same levels of justification as does Slobogin--is not limited to the Standards. There are a host of federal and state privacy statutes that already provide some limited justification-standard protections for some searches of third-party records in some circumstances. (15) Critics have argued for moving these protections up a notch, that is, for example, to require probable cause for all government access to stored e-mail content. (16) But these efforts, as with similar intra-drafting-committee efforts, have sparked intense law enforcement opposition. (17) The wisdom of the Standards' sliding scale model thus has wide significance for current law and future legal developments.

One member of the drafting committee, Professor Paul Ohm, has published an article rejecting Slobogin's premise that levels of justification matter and have practical significance in the area of electronic evidence in criminal cases. (18) Ohm argues that it is so easy to establish probable cause in most criminal investigations involving e-mail or the Internet that law enforcement objections have not been justified. Ohm argues, therefore, that there is no need for a sliding scale because probable cause will usually exist and that it alone provides too little protection in an electronic age. (19) Although Ohm's view undercuts much of law enforcement's standard antijustification (whether probable cause or reasonable suspicion) position, Ohm does not clearly argue for increasing (or decreasing) the standard for probable cause, redefining it, or replacing it. Instead, he merely suggests at several points that probable cause in this area is so easy to prove and of so little value in restraining government and protecting privacy that law reform efforts should shift to other areas. (20) Probable cause and reasonable suspicion can usually simply be ignored.

But Ohm concedes that there are still instances--though he believes relatively few ones--in which Internet and e-mail investigations will be amenable to regulation by standards of justification like probable cause and reasonable suspicion. (21) Whether these instances will in fact be as rare as Ohm argues is subject to dispute. (22) Furthermore, the Standards themselves address some important situations, such as obtaining medical information or acting where First Amendment free speech concerns may be implicated, that merit high levels of protection even if they occur infrequently. (23) Moreover, Ohm focuses on cybercrime investigations rather than investigations of ordinary crimes (e.g., murder, rape, robbery) that may nevertheless leave a digital trail (24)--but he does not limit his claims to cybercrimes. (25) Yet the latter sort of evidence should become increasingly important as technology advances. He simply underemphasizes the different issues ordinary crimes raise. But ordinary crimes leaving digital trails are often far less likely than cybercrimes to leave themselves open to easy proof of probable cause or even reasonable suspicion. (26)

Perhaps most importantly, however, Ohm does not explore in a more theoretical way the meaning and social value of the two main standards of justification--probable cause and reasonable suspicion. I agree with Ohm that many protections are required other than standards of justification. But standards of justification can still serve important social goals, even in Internet investigations, that should not be slighted. Moreover, the two major justification standard terms ("probable cause" and "reasonable suspicion") are rarely defined with any specificity. Part of the ease of meeting them may be the ambiguity in definition and the signals that these definitions send that they do not place much of a proof burden on law enforcement.

This Article seeks to fill this gap by exploring whether the key justification standards can be more specifically defined, what those definitions should be, and what social value the standards serve. The Article applies the results of this exploration to the ABA Standards, explaining whether they are justified as is or whether another course of action concerning levels of justification would have been more desirable.

A few qualifications are in order. I limit my analysis to targeted investigations, that is, the search for a particular person as the perpetrator of a crime or of a particular place believed connected to a known criminal event. (27) I therefore do not address "general search[es]," those occurring where "the government is trying to solve, prevent or deter as-yet undetected or perpetrated crime through surveillance of the general population or a subset of it....," (28) Many of the comments made here have implications beyond targeted investigations, but space prevents me from addressing them here.

Part II of this Article briefly summarizes the provisions and history of the ABA Standards. Those Standards are the jumping-off point for a fuller exploration of the meanings of probable cause and reasonable suspicion.

In two earlier articles, I identified the several aspects of justification standards like probable cause and reasonable suspicion. (29) Those articles did not, however, fully develop two of those aspects that I now address in depth: (1) The quantitative--how probable must it be that evidence of crime will be found in possession of the third party? (2) The qualitative--how trustworthy must the evidence be upon which law enforcement relies in finding the relevant standard met? (30) Here, in Part III, I will necessarily touch on all aspects of probable cause and reasonable suspicion because they are interrelated. But my primary focus in Part III will be on aspects (1) and (2): the quantitative and the qualitative. Concerning the quantitative, Parts III.A. 1 to 2 respond to arguments that it is more socially beneficial entirely to avoid setting a quantitative standard of proof for probable cause and reasonable suspicion. Part III.A.3 explains why, contrary to the claims of critics, cognitive biases are not enhanced by identifying a specific standard of proof, but such specification would appropriately limit law enforcement discretion. Perhaps more importantly, Part III.A.4 explains that the critics have wrongly assumed an objective notion of probability (how often are certain events likely to occur over many repetitions?) rather than a subjective notion (what degree of confidence or certitude does the factfinder justifiably hold in the determination made?). Subjective probability, subjected to standards of rational belief as reflected in social processes involved in the adversarial system, is the soundest way to approach unique legal events like the probable cause and reasonable suspicion determinations under particular sets of facts, and it more accurately describes the judicial reasoning process (Part III.A.4). (31) Part III.A.5 next explains why sound policy and the cognitive science of metaphorical reasoning support choosing a preponderance of the evidence--which relies on the metaphor of a tipping scale--as the proper standard of proof. Additionally, Part II1.B analyzes the idea of "weight," which explores the completeness and trustworthiness of the evidence offered to prove probable cause or reasonable suspicion. This Part concludes that courts should give little, if any, weight to incomplete or shoddy supporting evidence. Finally, this Part applies these lessons to the Standards, explaining, contrary to Ohm and other critics, why justification standards still matter in governing government access to digital third-party records.

Part IV, the Conclusion, brings together the preceding discussion and explores some of its implications.


The rise of the Internet has led to a dramatic increase in the sheer number of records documenting personal information. (32) More importantly, however, that information can be easily collected in a single location and analyzed in a fashion presenting previously unparalleled threats to privacy. (33) Indeed, in the private sector, data aggregators are paid to compile "digital dossiers" presenting an entire portrait of a person's life. (34) Other technological developments, such as cell phone cameras, radio-frequency identification devices, public surveillance cameras in stores and on public streets, and electronic voice messaging expand the array of personal information that can be included in a dossier. (35) Because privacy is itself best understood as control over information about ourselves, this loss of control risks undermining the many values that privacy is meant to serve. (36) In particular, awareness of the risk of observation can promote social conformity, chill dissent, discourage creativity, weaken intimate relationships, and breach the personal boundaries that define personhood. (37)

Although the private sector poses a danger to privacy interests, the government poses a unique danger. As the Department of Defense Technology and Privacy Advisory Committee (TAPAC) explained in the context of data mining, "only the government exercises the power to compel disclosure of information and to impose civil and criminal penalties for noncompliance. Only the government collects and uses information free from market competition and consumer preferences." (38) Indeed, continued TAPAC, "[w]hen dealing with the government, individuals have no opportunity to express their expectations of privacy by choosing to do business elsewhere or by not engaging in transactions at all." (39) Legal scholar Jed Rubenfeld acknowledges that government can and should have special rights to access private information as necessary to serve its function as law enforcer. (40) But that does not mean that there should not be significant limitations on when and how the state invades our lives. To the contrary, "precisely because the state's law enforcement power gives it a license to intrude into our homes and lives in ways that private parties cannot, the state poses dangers to a free citizenry that private parties do not." (41)

Yet constitutional controls on the state are nonexistent when the state seeks private information held in the hands of third parties. (42) As noted earlier, this is so because of the "third-party doctrine," holding that the Fourth Amendment's protection against unreasonable searches and seizures does not apply to information in the control of third parties. (43) Although the Court has occasionally suggested limiting this doctrine, (44) the doctrine is still a vibrant one. (45) Yet, "[one] would have to be a hermit to be able to function in our society without voluntarily disclosing a vast amount of personal information to a vast array of public and private demanders." (46) Disclosure is thus not truly "consensual" in any common understanding of that word. (47) Third parties consequently hold records of our medical history, psychological condition, physical location, financial transactions, library visits, bookstore purchases, political activities, gifts, and media preferences. (48) When the state seeks access to this mother lode of personal information, the Constitution is largely silent.

Law reformers, many citizens, scholars, and professional activists have thus agitated for change. (49) Legislation is the only practical legal means available to provide protection where the Constitution does not. Some states and the federal government have occasionally legislated to address similar problems. (50) But there are many holes in this regulatory network. (51) The ABA sought to assist in filling those holes by adopting its Access to Third Party Records Standards. The Standards thus reject the third-party doctrine and address what level of protection against privacy's invasion by governmental access to third-party (largely electronic) records should be permitted.

The Standards create a sliding scale of protection based upon the privacy level of the information sought. Records are therefore divided into those that are "highly private," "moderately private," "minimally private," and "unprotected" based upon the respective degrees of privacy that a person has in the records held by institutional third parties (the Standards do not apply to records held by individuals). (52) The degree of privacy protection is determined by weighing four factors, specifically, the degrees to which the transfer of such information is: (1) "reasonably necessary to participate meaningfully in society or commerce" or to achieve socially beneficial goals (such as freedoms of speech and association); (2) personal; (3) accessible to nongovernment persons other than the institutional third party; and (4) capable of access and dissemination to others under existing law. (53) An "escape clause" permits legislatures to lower the degree of protection dictated by privacy concerns if that level of protection would unduly interfere with effective enforcement of the criminal law. (54)

The many types of protections range from notice to the relevant persons (those whose privacy is invaded) once items are searched or seized; limitations on who may have access to the records and how, how long, and where they will be maintained; redaction; accountability mechanisms; (53) and limitations on the uses to be made of the evidence collected. (56) But the protections at issue in this Article are those limiting government access to the records in the first place. Access is permitted by a search warrant based upon probable cause for highly protected information, a court order based upon reasonable suspicion for moderately protected information, or a subpoena based upon a law enforcement certification of relevance for minimally protected information. (57) Even unprotected information can be sought, however, only for a "legitimate law enforcement purpose." (58) Exigent circumstances and "true" consent can override some of these statutory protections. (59)

By providing protection where the Constitution does not and by potentially expanding limited existing statutory protections, the Standards incurred the ire of the members of law enforcement on the drafting committee. (60) In a dissenting report, these members put the point this way:
   [Under] the Guidelines[,] ... records that fall into the "highly
   private" category require the highest justification (e.g., a search
   warrant) to obtain, while "minimally private" records may be
   obtained with less justification (e.g., a subpoena). While this
   [approach] ... may have some surface appeal, there is no logical or
   practical necessity for it. The total level of privacy protection
   that a law accords to a particular category of records is
   controlled not just by the level of proof required in order to
   obtain a record but also by the whole system of other safeguards on
   government disclosure or abuse. Indeed, the Guidelines lay out a
   menu of such options, from customer notification requirements, to
   restrictions on the use and disclosure of the record by the
   official, to civil suits against officials who misuse the record.
   It would be perfectly appropriate for a lawmaker ..., instead of
   imposing a high restriction on access with no subsequent safeguards
   (e.g., a search warrant), ... [to] require only a low threshold for
   government access, but require that the official not disclose it to
   anyone else except under very stringent, court supervised
   conditions (e.g., a grand jury subpoena).

This paragraph of course paints a false dichotomy: restricting access or restricting use after the information is obtained. But both are feasible, and the Standards provide both such protections. (62) Moreover, if no limitations are placed on information access, law enforcement's incentive is to collect as much information as possible, then worry about what to do with it later, rather than minimizing privacy invasion. Furthermore, whether post-evidence-collection limitations have been complied with is information generally held in law enforcement's hands, and thus is harder to obtain, creating obstacles to effective accountability.

Nevertheless, these dissenters saw access restrictions as unwarranted by privacy concerns. They also argued that citizens have an obligation to assist law enforcement in criminal investigations and that these higher justification standards would unduly impede or, at the very least, slow or render costly, important criminal investigations. (63) Indeed, they would end many investigations, leaving crimes unsolved and wrongdoers unpunished, which would have a broad impact in combating identity theft, organized crime, theft of trade secrets, and child abuse, among other offenses. (64) Law enforcement needs no such regulation because it "represents the community and is accountable through elected leaders. With rare exceptions, law enforcement officers act in the public interest to protect public safety, fight crime, or for other legitimate purposes." (65)

Nowhere in the dissenters' analysis is there a discussion of just what each justification standard means, how or why it would unduly impede law enforcement, or what legitimate and important societal goals these access requirements would serve. (66) Law enforcement is to be trusted, political safeguards always work, and privacy is of insufficient concern to ever reject its bowing to law enforcement needs. Thus we have two diametrically opposed critiques of the justification standards: the dissenters' views that they are unnecessary, destructive, and harsh, and Ohm's view that they are useless because they provide no meaningful protections.


Understanding why justification requirements like probable cause and reasonable suspicion are neither unduly burdensome to law enforcement nor worthless--indeed, to the contrary, serve important social goals--in the area of government access to third-party records requires a deeper understanding of just what these standards are. Part III addresses two key aspects of what defines probable cause and reasonable suspicion, as properly understood: the quantitative element, that is, what degree of proof is required (for example, 30%, 50%, or some greater probability) that a defendant has committed a crime or that evidence of crime will be found in a particular location, and the qualitative element, meaning the requirement that law enforcement and judges rely on complete, trustworthy information. Addressing the first question requires initially, however, understanding why we have standards of proof in the first place. Discussing that point is therefore where Part III begins.


1. Why Do We Have Standards of Proof?

Standards of proof, such as preponderance of evidence and beyond a reasonable doubt, serve several social functions. First, neither the government nor private persons acting in its name (jurors) may interfere with individual or group interests absent justification. (67) The substance of the justification varies with the particular legal claim (for example, contract, torts, murder, rape), but the standard of proof ensures that some justification must be offered. In particular, this justification must partly be in the form of proving facts demonstrating that the state's right to impose a cost on an individual or group is triggered. (68) In a civil contract claim, the facts must show that an agreement supported by consideration existed and was breached, causing damages. (69) Only then may the state compel the defendant to pay those damages. In a first-degree capital murder case, the facts must show that the defendant, and no one else, killed the victim, and that the defendant did so willfully, deliberately, and with premeditation. (70) Only then may the state consider imposing the death penalty. These facts, assessed in light of the relevant legal categories, justify the state's cost-imposing actions.

Second, these justifications must be made to someone. That someone may be a judge or a jury. (71) Since the justification must be made to another to a sufficient degree to persuade them to invoke the state's power, the standard of proof ensures accountability. As much empirical evidence demonstrates, a person's mere knowledge that she must be accountable to another reduces the likelihood that her actions embody error. (72) Accountability can occur only if the person explains her actions to a reviewing individual or body. (73) Explanation requires articulation, and articulation encourages self-assessment (e.g., have I done all that I need to do to make a persuasive case before I stand before others to be judged?) and permits error correction by the reviewer. (74) Standards of proof thus force social actors verbally to explain their choices and the reasoning underlying them. Those explanations must address the evidence that supports the factual claims that trigger the legal categories permitting the state to use or threaten to use force to compel obedience to its dictates. (75)

Third, the level of the standard of proof expresses important societal values. (76) If the individual or group interest invaded is considered of moderate social importance or the degree of invasion of that interest is likewise seen as moderate, then the lower preponderance standard of proof suffices. (77) But if the interest invaded is seen as highly important or its degree of invasion as extreme, the higher beyond a reasonable doubt standard is required. Tort injuries, such as negligence in maintaining a sidewalk, are generally viewed as being visited upon individuals by individuals and implicating the public only indirectly. (78) But planned murder is understood as injuring public values as directly as individual security, values fundamental to how we define the social order. (79) Partly for this reason, tort suits require proof of the relevant facts only by a preponderance; criminal cases require proof beyond a reasonable doubt. (80) Note that "facts" have a theoretically objective component (e.g., it is either true or false that John shot George) but also often involve value judgments, such as whether a killing reflected a "depraved heart" (second-degree murder) or reasonable provocation into the "heat of passion" (manslaughter). (81) Depravity is not an objective question in the same way as is who hit whom. The extent to which the values defining "depravity" are seen as especially important or not is partly reflected in the level of the standard of proof. (82) Likewise, the extent to which the values defining probable cause and reasonable suspicion are seen as especially important or not under the Fourth Amendment should also be reflected in the level of the standard of proof required.

Fourth, because we value some things more than others, our tolerance for error in finding the facts and in applying the law varies. (83) The preponderance standard tolerates a fairly significant risk of error; the beyond a reasonable doubt standard permits much less of a risk. (84)

There are, therefore, good reasons to guide important decisions implicating state power by establishing a specific standard of proof. (85) Probable cause and reasonable suspicion authorize the state to use force against its citizens and thus likewise should require the articulation of an appropriate correlative standard of proof. Yet the United States Supreme Court has never announced one, much less two (in theory, one standard could govern probable cause, another reasonable suspicion). The Court has repeatedly said that probable cause cannot be quantified, and it has implied the same to be true of reasonable suspicion. (86) In defining these terms--and it always does so vaguely--not once has it recited the relevant respective standard of proof. (87) Indeed, the outcomes of the Court's decisions suggest that the standard, if there is one, is elusive and ever-shifting, thus being no standard at all. (88) In addressing the logic of this no-standard-of-proof position below--a position the Court never clearly justifies--I focus primarily on probable cause as my example, then return to reasonable suspicion to see whether the same analysis should govern both concepts.

2. The Argument Against Having a Standard of Proof for Probable Cause

To my knowledge, the only academic to have defended at any length the Court's no-standard-of-proof position for probable cause is Orin Kerr. Kerr's argument is that adopting a standard of proof for probable cause will replace judges' intuitive understanding of the importance of missing evidence--evidence not mentioned by the police--in establishing probable cause, leading judges to overvalue weak evidence that such cause exists. (89) His argument that current procedures do not maximize the amount of evidence showing both the strengths and weaknesses of the case for probable cause is right on the money. But his argument that articulating a standard of proof will make things worse and is otherwise undesirable is wrong.

Probable cause affidavits, Kerr explains, recite "the officer's affirmative reasons to think probable cause exists." (90) But these same affidavits fail to mention what unsuccessful investigative efforts by the police were made. (91) Nor do the affidavits mention what investigative steps they chose not to take and why. (92) Yet these two pieces of information are critical in determining the probabilities of a suspect's guilt or of the existence and location of damning evidence. (93) The first of these evidentiary puzzle pieces matters because failed efforts to find evidence of guilt that should have succeeded were the suspect in fact guilty constitute exculpatory evidence. (94) If an accused child murderer passes a polygraph test (assuming that the polygraph is sufficiently reliable); has an airtight alibi offered by impeccable, disinterested witnesses who successfully stand up to police probing; and left no physical evidence at the crime scene that could be linked to him where such evidence would be expected given the particular facts of the case, the probabilities of the suspect's guilt are significantly reduced. (95) A judge hearing only evidence of guilt but unaware of this exculpatory evidence will potentially be misled. The second piece of the evidentiary puzzle matters because police not trying investigative techniques normally expected of them, and offering no good reason for their failure, raises suspicion that they lack subjective good faith. (96) For example, if testable DNA evidence was available and they chose not to test it, this suggests that they had reason to fear it would exculpate the defendant. Consequently, they avoided the test. This bad faith calls into question their motives, objectivity, and competency, thus raising reasons to distrust their conclusion that probable cause of guilt exists.

Kerr offers the following example to make his point. (97) Assume that an empirical study reveals that there is a 60% chance that any room in a college dormitory contains drugs. Assume further that an excellent drug-sniffing machine, the Potdetector 9000, which is almost 100% accurate, exists. The machine need merely sniff the air outside a dorm room and thus does not require any search to react to the presence of drugs. (98) The police further conducted an undercover investigation implicating half the dorm rooms in drug possession. (99) Student A's dorm room was not so implicated. The police submit an affidavit mentioning only the 60% figure and its empirical bases to justify searching the room of Student A for drugs. The police never mention that they failed to use the Potdetector 9000. Nor did they mention the undercover investigation. How would a judge react?

Kerr argues that in practice the judge's intuitions will lead her to deny probable cause. (100) The 60% likelihood of drugs is the chance of discovering them by randomly selecting a room. But the judge knows that police do not randomly select rooms. (101) Perhaps this is because they have limited resources for repeated trial and error in this fashion; perhaps it is because they know judges will not tolerate such random action. Whatever the explanation, the judge will therefore want the backstory explaining why the police would think that this particular room fits in the 60% where drugs would be found. (102) Without knowing why the police chose to submit only generalized probability evidence, the judge is troubled, even suspicious of the police actions. (103) The police must be hiding something. That something may include their refusal to use the Potdetector 9000--the use of which could have conclusively ruled Student A's guilt in or out. The other hidden item of evidence, of course, is the undercover investigation that did not implicate Student A's room.

But Kerr next makes a startling assertion: the judge's intuitions will fail if she is given a standard of proof, specifically 47%, to guide the probable cause determination. (104) Kerr argues two cognitive biases will thereby be brought into play: the representativeness heuristic and anchoring. (105) The representativeness heuristic, as Kerr defines it, is the idea that individuals "measure probability by reference to data that seem to resemble the probability to be estimated." (106) Kerr leaves out in his definition the current understanding that the reason why some information is viewed as "representative" is often because it "fit[s] a stereotype or [is seen as] diagnostic of group membership." (107) The frequency of representative events is likely to be overestimated, indeed viewed as more frequent than other events of which the representative one is a subset--a logical impossibility. (108) For example, subjects given a description of "Linda" as "31 years old, single, outspoken, and very bright"; having majored in philosophy; and, as a student, having been concerned with discrimination and social justice to the point of participating in antinuclear demonstrations, think it more likely that Linda is a feminist activist bank teller than that she is simply a bank teller. (109) But that cannot logically be true because feminist bank tellers are a subset of all bank tellers (unless we assume that every bank teller is by definition a feminist). Because the description of Linda most closely fits that of cultural stereotypes of feminists, the subjects incorrectly assumed that Linda was a feminist bank teller. (110)

Anchoring is the idea that people will judge probabilities, indeed, that they will make a numerical estimate in a particular case, by adjusting the probabilities up or down based upon a given starting point. (111) For example, whoever makes the first offer in a negotiation may have an advantage because it anchors the opponent's estimates of the most likely result. (112) Anchoring effects are observed even if uninformative numbers are used, such as estimates of the number of countries in the United Nations being influenced by first being told the number of doctors in a local phone book. (113)

Kerr argues without explanation that the 60% likelihood of drugs being found in a dorm room in his example seems representative of the probability (probable cause) being calculated. (114) That 60% will act as an anchor in making the probable cause judgment. The judge will thus look to see if there is any reason to lower the probability to below the 47% marker in this case. But, having only the 60% figure, there is no such reason, so the judge will find probable cause. (115) Kerr asserts this point as self-evident, never explaining why the judge will lose her skepticism about missing evidence linking the generalized probability to the specific suspect. (116)

Now Kerr varies the hypothetical. (117) Remember that the police conducted an undercover investigation implicating half the rooms in drugs, Suspect A's room not being in that half. Assume now a 90% likelihood that all rooms implicated in drugs in fact contained drugs. Ignore the Potdetector 9000 possibility for these purposes. Once we know that Suspect A's room was not in the 50% of the rooms linked to drugs, when combined with the empirical study finding a 60% likelihood of all the rooms having drugs, the new probability of drugs in the nonimplicated rooms, like Student A's, is 30%, says Kerr, well below the 47% standard of proof for probable cause. (I am putting aside whether Kerr's probability analysis is correct; he does not explain it, and my goal here is simply to recount his argument.) If the judge knew this information, the judge would unquestionably not find probable cause. But the existence of a 47% standard of proof has robbed this judge of her skepticism about potential missing evidence. She will find probable cause, though she is radically wrong.

Understanding the weaknesses in the latter portion of Kerr's argument (about the elimination of judicial skepticism) and the incompleteness of his argument about missing evidence sheds much light on the value of having a standard of proof in the probable cause determination. (118) It is that task to which this Article next turns.

3. The Flaws in Kerr's Argument Against Having a Probable Cause Standard of Proof

i. Objective Probability Data Relevant to Probable Cause Rarely Exists

As noted above, Kerr relies for his point on an extended example--the dorm room drug search--in which an empirical study creates a high, objective, generalized probability that drugs will be found in a randomly selected dorm room. Yet it is likely to be the rare case that such generalized, objective probability data is available, (119) though, as is addressed shortly, that may change somewhat in the future. (120) Absent such data, it is hard to see how a specific number can exist to serve as an anchor.

ii. The Standard of Proof, Rather than the Probability Data, Is More Likely to Serve as an Anchor

Nor is it clear why the standard of proof, 47% in his example, would not serve as the anchor rather than the 60% figure. (121) The first figure to which judges will be exposed, and the one with which they will be most familiar, is the 47% standard of proof for probable cause, if that standard were widely adopted. If so, a judge should instead be asking what reason is there to believe she should move up in this case from that 47% rather than down from the 60% figure--precisely the opposite of Kerr's analysis. (122) Yet Kerr argues that, absent persuasive case-specific evidence of this sort, a judge is unlikely to depart sufficiently from her anchor. (123)

Anchoring, especially in conditions of uncertainty, is a robust phenomenon, resisting efforts to combat it. (124) But initial anchors have far stronger effects than later ones. (125) Anchors may simply be the first figure to which a decisionmaker is exposed. (126) Barring countervailing phenomena, there is thus good reason to believe that the 47%, not the 60%, figure will indeed serve as the anchor. Importantly, anchors do not prevent adjustment in the face of other evidence. But adjustment may not be as large as the evidence suggests. (127) If this is so, however, judges may undervalue evidence of probable guilt (evidence above the 47% figure), rather than overvaluing it as Kerr claims.

Of course, they may overvalue weak evidence of guilt (under the 47% mark), too, if given a standard of proof. There is, however, little empirical evidence on the point, though the little evidence available does suggest that warrant-issuing magistrates overvalue information in probable cause affidavits concerning black suspects relative to white suspects. (128) But subconscious racial bias seems the more likely culprit here because numerical estimates of suspect guilt were not involved--as they rarely are. (129) Moreover, the risk of judges overvaluing some weak evidence under rare circumstances is not necessarily preferable to the risks raised by not having a standard of proof at all. (130)

Maryland v. Pringle (131) illustrates the point. There, an officer conducted a consent search of a vehicle. There were three occupants: the driver; the defendant, who was in the front passenger seat; and a third party in the rear seat. The officer found drugs hidden behind an upraised armrest next to the rear passenger. When no one would confess to possessing the drugs, the officer arrested all three men. He later released two of them when the defendant finally confessed. Under Maryland law, all three occupants could be presumed jointly to possess the drugs only if they were visible to all occupants. (132) These drugs were not. That meant that only one of the three could legally be treated as the possessor, creating a one-third likelihood (absent any other evidence) that any one occupant was guilty. (133) The Court upheld the defendant's arrest. (134) The only possible explanations for finding probable cause here were that: (1) the Court ignored Maryland law--which, its precedent says, it may not in determining probable cause (though it may ignore state law for certain other Fourth Amendment purposes); (135) (2) the Court found probable cause in error given that a one-third likelihood of guilt was lower than their previous precedent ever suggested was plausible; (136) (3) the Court implicitly relied on a standard of proof but lowered it from previous levels; (137) (4) the Court varied the level of proof for probable cause with the particular circumstances without ever admitting that it was doing so or explaining what circumstances matter and why; (138) (5) probable cause is a shifting, ill-defined concept, something creating no effective restraints on government because the Court "knows it when it sees it." (139) None of these explanations are flattering to Kerr's no-standard-of-proof-required vision of probable cause. Taken as a whole, they suggest that absence of a standard of proof gives neither the Court nor lower courts, nor even the police, helpful guidance. Furthermore, the ambiguity of the concept makes it particularly subject to subconscious ideological manipulation, an expression of raw power not justified by any clear or plausible explanation. (140)

iii. The Representativeness Heuristic Can Be Overcome

Kerr also relied on the representativeness heuristic as a source of judicial bias. (141) But unlike with the anchoring phenomenon, some heuristics, of which the representativeness heuristic is one example, are "not some hardwired bias[es] that necessarily cause[] people to think irrationally about frequency and probability. Instead, [they are] tentative decisionmaking tool[s] that can be relatively easily elicited or suppressed, depending on how the information is presented and questions are posed." (142) Indeed, expressing probabilities in concrete numbers showing frequencies rather than in percentages--for example, "60 out of 100"--is a simple device that helps to avoid triggering the representativeness heuristic. (143) Lawyers in an adversary system should be motivated to present information, such as in a frequency format, to overcome their opponents' efforts to rely on the representativeness heuristic. (144) The 60% figure in Kerr's example thus does not necessarily capture the judicial mind via the representativeness heuristic, especially given the primacy of the 47% figure for the standard of proof. (145)

Kerr also offers no empirical proof that such heuristics will so dominate all judicial reasoning processes that judicial intuitions about missing evidence will simply shut down. He thinks it self-evident that courts will wonder about missing evidence, particularly when confronted solely with generalized probability data, but magically lose such skepticism if we add in a standard of proof. This position assumes that judges are automatons beyond the reach of conscious, deliberative, or institutional forces. (146) But doctrine, while having far less impact than formalism suggests, does often have some impact on the courts, especially the trial courts. (147) The Court has repeatedly declared that probable cause is an individualized, not a generalized, decision focusing on evidence of a particular individual's guilt or possession of evidence of crime. (148) Lower court culture may also be imbued with the teachings of this doctrine, though solid empirical evidence is once again lacking. Individualization demands that there be evidence beyond some generalized objective statistical probability linking a defendant to a crime. (149) Furthermore, at least upon appeal, lower courts must articulate and defend their probable cause decisions in writing. (150) The empirical data suggests that the mere knowledge that they may have to do so in any given case, even if they do not in advance know which cases will be appealed, will improve their decisionmaking about the availability of adequate individualizing evidence. (151) If they do not articulate their decisions in writing, the fault may be in insufficiently clear or muscular precedent. (152) But to think that any one or two heuristics routinely and entirely control judicial judgments without considering other factors, such as the institutional environment, makes little sense. (153) Moreover, any good judge should want to know how the police arrived at the 60% and why they think that A's dorm room is one of the 60% containing drugs rather than the 40% that are drug free.

Kerr's explanation of judges' likely intuitive reactions of suspicion about missing evidence is also problematic. Kerr argues that the absence of individualized evidence raises judicial suspicions that police are acting in subjectively bad faith. (154) Kerr seems to suggest that this intuition breaks through to conscious reasoning, and thus is potentially susceptible to judicial deliberation about the permissibility of relying on a judgment of bad faith. (155) If the courts follow doctrine, of course, an officer's subjective bad faith is generally irrelevant under the Fourth Amendment. (156) Kerr might be right about the bad-faith intuition being one reason for judicial concern. But many other reasons, including the role of missing evidence in undermining a good story, may play a role as well. (157) Indeed, as we will soon see, Kerr is wrong to view the missing evidence question as one going solely to the question of probability. It is also relevant to the question of weight, an arguably entirely different concept. (158) Weight partly turns on the human tendency to reason in terms of sensible stories, as does probability, if one conceptualizes it differently than does Kerr. Weight refers to a justifiable expression of confidence that sufficient evidence has been presented to establish facts meeting a legal standard (facts found by the crafting of sensible narratives) rather than as a statement of the frequency or likelihood that such facts exist. (159)
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Title Annotation:ABA Criminal Justice Standards on Law Enforcement Access to Third Party Records; I. Introduction through III. The Meaning and Social Value of Probable Cause and Reasonable Suspicion A. The Quantitative Element: Standards of Proof 3. The Flaws in Kerr's Argument Against Having a Probable Cause Standard of Proof iii. The Representativeness Heuristic Can Be Overcome, p. 839-870; Symposium on Cybercrime
Author:Taslitz, Andrew E.
Publication:Journal of Criminal Law and Criminology
Date:Jun 22, 2013
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