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How the Post-Framing Adoption of the Bare-Probable-Cause Standard Drastically Expanded Government Arrest and Search Power

67 Pages Posted: 16 Jan 2011 Last revised: 12 Feb 2011

Thomas Y. Davies

University of Tennessee College of Law

Date Written: January 14, 2011


Mere probable cause that a crime might have been committed did not suffice to justify a criminal arrest or search under framing-era law. Rather, James Madison innovated when he used bare "probable cause" as the minimum standard for issuing warrants in the Fourth Amendment because the federal Framers were primarily concerned with regulating revenue search warrants, and that was the unique area in which bare probable cause of a violation had emerged as the accepted standard. However, there is no indication that the federal Framers meant for that standard to undercut the more rigorous common-law standards for criminal arrests or searches.

At common law, arrest warrants and warrantless arrests for felonies typically required both (1) proof that a crime had been committed "in fact" and (2) information showing probable cause of suspicion as to the identity of the culprit. Because hearsay evidence was generally banned at common law, this effectively meant that no arrest could be made unless a potentially accountable complainant made or was prepared to make a sworn accusation of crime. Warrantless arrests for less than felony were limited to instances in which the arresting person witnessed an ongoing breach of the peace such as a fight; there was no arrest authority for minor offenses, which were handled with a summons. Additionally, criminal search authority was usually only an appendage of arrest authority. Search warrants for stolen property, which also required an allegation of felony "in fact," seem to have been used only when an arrest warrant could not. There was no recognition of warrantless criminal search authority other than that arising from a lawful arrest.

The state and federal Framers attempted to preserve these common-law standards in provisions that forbade a person being arrested except according to "the law of the land" or "due process of law." However, the original understanding of those provisions was lost when nineteenth-century judges followed English judges in adopting bare probable cause that a felony might have been committed as a justification for a warrantless arrest by a police officer. That relaxed warrantless arrest standard then opened the way for the development of modern policing, and investigatory criminal procedure displaced accusatory procedure. Additionally, the Supreme Court invented the notion that bare probable cause could provide a justification for a warrantless criminal search even in circumstances when an arrest could not be lawfully made in the 1925 decision in Carroll v. United States. Thus, claims in recent decisions, including those in Atwater v. Lago Vista (2001) and Virginia v. Moore (2009), that mere probable cause always sufficed to justify criminal arrests and searches are gross judicial distortions of authentic historical doctrine.

In addition, the redefinition of probable cause in Illinois v. Gates (1983) as information that merely indicates a "fair probability" or "substantial chance" of crime substantially degraded the historical meaning of that term. Prior Supreme Court decisions had instead invoked the definition used consistently from the time of the framing to the effect that probable cause meant evidence creating a such a strong suspicion of guilt as would justify a prudent person in believing that the person to be arrested had committed the alleged crime. This relaxation of the probable cause standard, which effectively created discretionary arrest and search authority, further magnified the expansion of government arrest and search powers that occurred when the bare probable cause standard was substituted for the common-law standards for criminal arrests and searches.

Keywords: search, arrest, warrant, originalism, Fourth Amendment, Fifth Amendment, due process, probable cause, Gates, Moore, Atwater

Suggested Citation

Davies, Thomas Y., How the Post-Framing Adoption of the Bare-Probable-Cause Standard Drastically Expanded Government Arrest and Search Power (January 14, 2011). Law and Contemporary Problems, Vol. 73, p. 1, 2010; University of Tennessee Legal Studies Research Paper No. 136. Available at SSRN:

Thomas Y. Davies (Contact Author)

University of Tennessee College of Law ( email )

1505 West Cumberland Avenue
Knoxville, TN 37996
United States

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