In the Absence of Scrutiny: Narratives of Probable Cause

38 Pages Posted: 14 Jun 2013 Last revised: 25 Dec 2014

G. Mitu Gulati

Duke University School of Law

Jack Knight

Duke University School of Law

David F. Levi

Duke University - School of Law

Date Written: July 1, 2013

Abstract

This Article reports on a set of roughly thirty interviews with federal magistrate judges. The focus of the interviews was the impact of the Supreme Court case, United States v. Leon, on the behavior of magistrate judges. Leon, famously, put in place the “good faith” exception for faulty warrants that were obtained by the officers in good faith. The insertion of this exception diminished significantly the incentive for defendants to challenge problematic warrant grants. That effect, in turn, could have diminished the incentive for magistrate judge scrutiny of the warrants at the front end of the process. We do not find any indication of diminished scrutiny. What we do find, however, is a highly ritualized and formalistic process for the evaluation of warrants where calculations of probabilities are viewed through a legalistic rather than a pragmatic lens.

Suggested Citation

Gulati, G. Mitu and Knight, Jack and Levi, David F., In the Absence of Scrutiny: Narratives of Probable Cause (July 1, 2013). Available at SSRN: https://ssrn.com/abstract=2279044 or http://dx.doi.org/10.2139/ssrn.2279044

Gaurang Mitu Gulati (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Jack Knight

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

David F. Levi

Duke University - School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7001 (Phone)

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