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Probability, Probable Cause, and the Law of Unintended Consequences

Texas Law Review, See Also Vol. 87, p. 63, 2009

Chapman University Law Research Paper No. 09-26

5 Pages Posted: 3 Jul 2009 Last revised: 9 Jul 2009

Lawrence Rosenthal

Chapman University, The Dale E. Fowler School of Law

Date Written: June 29, 2009

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.

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

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: https://ssrn.com/abstract=1427413

Lawrence Rosenthal (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

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