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Probability, Probable Cause, and the Law of Unintended Consequences


Lawrence Rosenthal


Chapman University - School of Law

June 29, 2009

Texas Law Review, See Also Vol. 87, p. 63, 2009
Chapman University Law Research Paper No. 09-26

Abstract:     
This brief essay responds to Max Minzer's article "Putting Probability Back into Probable Cause." The essay supports Professor Minzer's proposal for the use of empirical evidence of the success of a given investigating officer or investigative technique in assessing the existence of probable cause to search or seize, but offers a caveat. If an officer's "hit rate" becomes central to Fourth Amendment analysis, there is a serious danger of overdeterrence which, in turn, could lead to a dangerous escalation in violent crime. The essay offers some proposals for minimizing the risk of overdeterrence in an empirically-based regime of probable cause.

Number of Pages in PDF File: 5

Keywords: Fourth Amendment, search and seizure, probable cause, reasonable suspicion, Terry v. Ohio, stop and frisk

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Date posted: July 3, 2009 ; Last revised: July 9, 2009

Suggested Citation

Rosenthal, Lawrence, Probability, Probable Cause, and the Law of Unintended Consequences (June 29, 2009). Texas Law Review, See Also Vol. 87, p. 63, 2009; Chapman University Law Research Paper No. 09-26. Available at SSRN: http://ssrn.com/abstract=1427413

Contact Information

Lawrence Rosenthal (Contact Author)
Chapman University - School of Law ( email )
One University Drive
Orange, CA 92866-1099
United States
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