The Modern History of Probable Cause
70 Pages Posted: 25 Apr 2010 Last revised: 3 Sep 2010
Date Written: April 22, 2010
It is frequently assumed that probable cause, roughly as we understand it today, has, since time immemorial, been the standard allowing an officer to search or arrest. The reality is that probable cause has change a lot since the Bill of Rights was drafted. In the mid-nineteenth century, probable cause was no more than a pleading requirement in criminal cases -- and never have been more than a pleading requirement in criminal cases. Victims of crimes alone were able to seek arrest or search warrants by swearing that they had suffered an injury and that they had probable cause to believe that the person identified committed the crime, or that evidence of the crime could be discovered in the place identified. The victim did not describe the factual basis of his suspicion. Probable cause as a pleading requirement for victims became inconsistent with late nineteenth century social regulations. In the latter half of the nineteenth century, states and the federal government created and punish victimless crimes. Prohibition, pornography and prostitution became targets of new government regulations. These new crimes required a mechanism to allow government searches and arrests without a victim's complaint. At the same time, professional police departments were emerging in American cities. This article accounts for the evolution of probable cause from the early nineteenth century pleading requirement to the modern evidentiary threshold requirment by looking at policing in New York City in the second half of the nineteenth century. While modern social regulations required a standard that public investigators could satisfy, distrust of the police prevented allowing police to simply plead probable cause as victims had done. A standard requiring police to offer facts supporting probable cause was thus born.
Keywords: probable cause, bill of rights, pleading requirement, New York city police
JEL Classification: K1, K4, K14
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