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129 Yale L. J. 1276 (2019-2020)
Probable Cause Pluralism

handle is hein.journals/ylr129 and id is 1312 raw text is: ANDR EW M4NUEL CRESPO
Probable Cause Pluralism
ABSTRACT. The constitutionality of a search or seizure typically depends upon rhe connecrion
between the target of that search or seizure and some allegation of illegal behavior - a connection
assessed by asking whether the search or seizure is supported by probable cause. But as central as
probable cause is ro the Fourth Amendment's administration, no one seems to know what it means
or hoxv it operates. Indeed, the Supreme Court insists it is not possible to define the term, hold-
ing instead that the probable-cause inquiry entails no more than the application of common
sense to the totality of the circumstances. Viewed charitably, this refusal to elaborate on the
meaning of probable cause stems from In understandable desire for doctrinal tiexibility in the face
of weighty and competing law-enforcement demands. But the Court's doctrinal approach is also
routinely criticized as an I know it when i see it jurisprudence that is ill equipped to safeguard
civi! liberties in the numerous interactions between civilians and law-enforcement actors.
This tension between doctrinal flexibility and structure is the animating dilemma of prbable-
cause junsprudence -a dilemma that this Article attempts to navigate and, ultimately. to resolve.
To do so., it urges a rejection of an often invoked - if not always followed -- tenet 1 Supreme Court
doctrine: probable cause unitarianism. That dominnt idea, expressly endorsed in many of the
Court's leading precedents. holds that whatever probable cause means, it ought to enail the same
basic analytic merhod And he jodged by the same substantive standard, from one case to Mother.
But on close inspection. the Supreme Court's existing jurisprudence contains seeds of an altema.-
rive-- anti superior- conception of probable cause. which this Article terms probable cause plural-
ism. On this view, probable cause is an tpen-textured and capacious idea rhat can comfortably
encompass distinct analytic frameworks and substantive stn;dards, each of which cai be tailored
to the unique epistemological and normative challenges posed by different types of Fourth Amend-
ment events. Probable-cause anaysis can he statistically driven or intuitively assessed; it can de-
mand compelling evidence of illegal behavior or only an occasionally satisfed profile it can pre-
sume the credibility of some types of witnesses while treating others with deserved skepticism or
disbelief. it can, in short, conic to mean somethmg -if It gives up on meaning any one thing in all
In its current form, probable cause's plurahsm is nascent, implicit, and undertheorized --and
is thus at best a stunted and haphazard collection of disparate ideas. This Article's central contri-
bution is to bring those ideas together, refning and synthesizng them into a comprehensive ac-
count of what a pluralist theory of probable cause could and should look like. Specifcally, by or-
ganizing probable cause around three central analytic axes-which in turn ask how to assess
evidentiamy claims, how to assess proponents of such claims, and how to derermine the certainty
thresholds for those tvo assessments - rhis Article constructs a universally applicable framework
for determining the constirutionality of any given search or seizure. With rhat framework in hand,
scholars and jurists vill be hetrer equipped to reason through the many and varied cases to come
and better able to assess the many cases that have come l sefore.


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