Probability, Probable Cause, and the Law of Unintended Consequences
Texas Law Review, See Also Vol. 87, p. 63, 2009
5 Pages Posted: 3 Jul 2009 Last revised: 9 Jul 2009
Date Written: June 29, 2009
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.
Keywords: Fourth Amendment, search and seizure, probable cause, reasonable suspicion, Terry v. Ohio, stop and frisk
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