Probable Cause in a Nervous Age


The article seeks a new understanding of the ancient principle of probable cause in an age in which public policy and law have been profoundly influenced by the fear of terrorism. It explores the importance of probable cause within a broader constitutional system, arguing that while it helps to protect the specific right against unreasonable searches, it is also part of a larger, structural protection of liberty generally.

The article explores the frustrating efforts a judge will undertake in finding meaning to the concept by resort to precedent, linguistics, mathematical models or history. Ultimately, it argues that the core of the concept can only be seen through the lens of political science, particularly the political philosophy of John Rawls.

From Rawls, the article borrows the idea of the original position and posits that by applying it to probable cause, a judge can more readily sense its proper application in a given case. Essentially, probable cause should be found when any rational, self-interested person would agree that the facts known at the time are sufficient, knowing that they could turn out to be the person searched, the victim of the crime being investigated or a neighbor in the community in which the search takes place.

Rawls’ idea of public reason is also put into this context. The philosophical underpinnings of that concept are argued to account for the remarkable longevity of probable cause as a doctrine. The underlying reasonableness of the doctrine, seen as a publicly accepted mandate by a people rationally balancing their desire for freedom and their need for order, is set forth as the compelling reason why, even in a nervous age, probable cause should, and will, prevail.


Constitutional Law | Criminal Law | Criminal Procedure

Date of this Version

May 2006