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87 Tex. L. Rev. 913 (2008-2009)
Putting Probability Back into Probable Cause

handle is hein.journals/tlr87 and id is 925 raw text is: Putting Probability Back into Probable Cause
Max Minzner*
When deciding whether a baseball player is likely to get a hit, we look
at his history of success at the plate. When deciding whether to listen to the
advice of a stock analyst, we look at whether the prices of her past recom-
mendations rose or fell. But when police officers claim that they have
probable cause to believe a certain location contains evidence of a crime, we
do not look at whether they have been right or wrong when they have made
the same claim in the past. This is a mistake.
Law-enforcement-search success rates vary widely, even when the same
legal standard applies. Searches pursuant to warrants issued on a probable-
cause standard recover evidence at very high rates, usually exceeding 80%.
By contrast, warrantless searches, even when officers allege they have prob-
able cause, succeed at far lower rates, recovering evidence as infrequently as
12% of the time. Similarly, some officers are far more successful than others
when they conduct probable-cause searches. Some almost never recover
evidence; some almost always do.
What role should these different success rates play in probable-cause
analysis? The current answer is none. Judges are not presented with the suc-
cess rates of the law enforcement officers who appear before them. I argue that
law enforcement should be forced to present success-rate data to judges when
making probable-cause claims and judges should be allowed to consider the
data when deciding whether to issue a warrant or approve a previously con-
ducted search. These success rates capture information not currently analyzed
in the search process and their addition would improve the accuracy of
probable-cause decisions.  Most significantly, we would learn private
information in the possession of law enforcement that is not currently presented
to judges.

* Assistant Professor, Benjamin N. Cardozo School of Law, Yeshiva University. The author
would like to thank Mitchell Berman, Stephen Morse, Margaret Lemos, Alex Reinert, and the
presenters and commentators in the Yale-Stanford Junior Faculty Forum, the Cardozo School of
Law Junior Faculty Forum, and the University of New Mexico Faculty Workshop.

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