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Probable Cause

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The Fourth Amendment has two clauses. The first states that people have a right to be protected from unreasonable searches and seizures, and the second states that no warrant shall issue except upon probable cause. The roots of the second clause -- the probable cause requirement -- lie in English and American colonial history. Prior to the framing of our Constitution by the founding fathers, the government had virtually unlimited power to believe, right or wrong, that any illegal items they were looking for would be found. In England, this all-purpose power took the form of what were called general warrants; in colonial America, they were called writs of assistance. To protect against the abuses inherent in this kind of power, the Framers added a probable cause requirement.

The probable cause requirement is, in many ways, more important than the reasonableness clause. Not all search and seizures require warrants (e.g., automobile searches, arrest in a public place), but the Supreme Court has interpreted warrantless searches and seizures as unreasonable unless preceded by probable cause. This means that as a general rule, most searches and seizures require probable cause.

It's an example of the procedural law's attempt to balance, or accommodate, competing interests. On the one hand, it protects from arbitrary intrusions into liberty and privacy, but on the other hand, it gives sufficient leeway to government officials by not being as strong of a standard as proof beyond a reasonable doubt. More leeway is granted to law enforcement under the standard of reasonable suspicion (see this Lecture on Stop & Frisk), and the standard of reasonableness under all circumstances used in school searches and sweeps. The Supreme Court has indicated that any exceptions to the probable cause requirement will be few in number. The Supreme Court has referred to its interpretation of probable cause as the "accumulated wisdom of precedent and experience."

Definitions of Probable Cause

Sources of Probable Cause

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