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CANADIAN CRIMINAL LAW DISTINGUISHES between the thresholds of 'reasonable suspicion' and 'reasonable grounds to believe' required in order for police officers to lawfully arrest persons, conduct certain forms of searches, [...]

4. Understanding the Founders A crucial question remains: Why did many American jurists gravitate towards the Whigs' view and reject the probable cause standard? The political logic of the Exclusion [...]

Most judges, lawyers, and scholars take it for granted that to charge a criminal defendant, the government needs only probable cause of guilt. But in fact, probable cause represents a choice, not a fixed element of our legal tradition. This Article begins with the history of the probable cause standard. It presents novel evidence that many Founding-era American judges rejected the idea, urged by a group of English lawyers and judges a century earlier, that criminal charges require only a 'probable ground for accusation.' Many insisted that grand jurors should be certain of a suspect's guilt before returning an indictment, a charging standard that was well suited to the Founding generation's anxiety about concentrations of power and their informal criminal trials. Probable cause gained traction as a charging standard in the United States in the late nineteenth and twentieth centuries, when the criminal trial gained the appearance of reliability. Grand juries and magistrates no longer needed to be certain of a suspect's guilt because a trial jury would be. Or so it must have seemed at the time. The puzzle is that the probable cause standard survived even after the rise of plea bargaining exploded this logic. This Article offers three explanations for probable cause's survival as a charging standard. First, policymakers may not have valued certainty of guilt, or, for that matter, constraint on prosecution, as much as they once did. Second, 'voluntary' guilty pleas may have provided--or appeared to provide--adequate certainty of guilt. Third, policymakers may have failed to examine the fit between plea bargaining and probable cause, making probable cause's survival a matter of unreflective path dependence. But while these explanations are descriptively plausible, they are also normatively troubling. Worse, the probable cause standard exacerbates plea bargaining's innocence problem and its propensity for prosecutorial control of criminal justice. The time has come to revisit it., Table of Contents Introduction I. A Framework for Understanding Criminal Charging Standards II. A History of Charging Standards A. The Founders' Charging Standard 1. The English debate and its transmission [...]

B. The Importance of Hassle Hassle is a problem of constitutional importance. If suspicion requirements ensure that the hit rate stays high enough, the individualization requirements should ensure that the [...]

Before police perform a search or seizure, they typically must meet the probable cause or reasonable suspicion standard. Moreover, even if they meet the appropriate standard, their evidence must be [...]

IV. LEGALITY AS A SUPPLEMENT AND NOT A SUBSTITUTE To recap, the term 'unreasonable,' as used in the Fourth Amendment, is shape shifting. (153) It describes not one, but two [...]

A police officer needs probable cause to make an arrest. But, almost always, he needs no more. In this way, an arrest may be constitutionally reasonable even if it is entirely unreasonable by any plausible moral or instrumental measure. Indeed, the Court has upheld even an arrest that it termed a 'gratuitous humiliation ' and a 'pointless indignity. ' In this Article, I examine what accounts for the Court's prevailing methodological approach to Fourth Amendment reasonableness, and I evaluate whether the Court's reasoning withstands scrutiny. Specifically, I trace the Court's methodology back to a particular conception of the legality principle, whereby formalistic measures are crafted around suspicion of guilt and are treated as exclusive. I offer contrary reasons, however, to conclude that the legality principle's chief purpose (as a safeguard against the arbitrary exercise of executive discretion) is better served by a two-ply constitutional test that would demand both probable cause and general reasonableness. That is, I submit that probable cause might work best as a special supplement to otherwise-relevant qualitative considerations (and not as a special substitute). To support this claim, I focus narrowly on one particular qualitative consideration that probable cause has almost completely cannibalized. That consideration is dignity. It is not my purpose, however, to see the Fourth Amendment reoriented around dignity. Dignity matters, but neither it nor probable cause (nor anything else) is all that matters. I rely upon dignity as a placeholder for any of the many qualitative considerations that a quantitative proxy for constitutional reasonableness has unjustifiably ignored., INTRODUCTION I. QUANTITATIVE CONSTITUTIONAL REASONABLENESS A. Criminal Law Exceptionalism B. Legality, Guilt Accuracy, and Positional Authority II. QUALITATIVE CONSTITUTIONAL REASONABLENESS A. Peacekeeping Particularism B. Particularism at the Peripheries III. DIGNITY [...]