Probabilistic Presumptions in Fourth Amendment Decisionmaking

43 Pages Posted: 22 Feb 2021 Last revised: 23 Mar 2021

See all articles by Nicholas Alden Kahn-Fogel

Nicholas Alden Kahn-Fogel

University of Arkansas at Little Rock - William H. Bowen School of Law

Date Written: February 14, 2021

Abstract

For decades, the Supreme Court has maintained a rhetorical commitment to an ad hoc, case-by-case, totality of the circumstances approach to evaluating probable cause and reasonable suspicion. Despite the Court’s insistence that there are so many factors involved in the assessment of Fourth Amendment probabilities that one case will seldom be useful precedent for future cases, it has with increasing frequency endorsed the use of presumptive rules in this context. Such presumptions provide an appealing balance between the often competing imperatives of providing clear guidance to lower courts and law enforcement officers, on the one hand, and retaining the flexibility to ensure results consistent with Fourth Amendment principles in idiosyncratic cases, on the other. Additionally, although courts might evaluate the suitability of some such presumptions using quantitative analysis, in other cases, the use of qualitative, intuition-based judgment is necessary.

Suggested Citation

Kahn-Fogel, Nicholas Alden, Probabilistic Presumptions in Fourth Amendment Decisionmaking (February 14, 2021). Houston Law Review, Vol. 59, 2021/22, Available at SSRN: https://ssrn.com/abstract=3785603 or http://dx.doi.org/10.2139/ssrn.3785603

Nicholas Alden Kahn-Fogel (Contact Author)

University of Arkansas at Little Rock - William H. Bowen School of Law ( email )

1201 McMath Street
Little Rock, AR 72202
United States

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