A Stitch in Haste

probable: likely but not certain to be or become true or real; "a likely result"; "he foresaw a probable loss"

The Chief Judge of the Sixth Circuit Court of Appeals believes that the Constitution generally, and the Fourth Amendment specifically, have not been emasculated enough. The solution? Eradicate that pesky "probable cause" requirement:

My reading is that it does not require a belief that there is more than a 50% probability of evidence being found in a particular location. ... If that were the case, one could never get a search warrant to search all three cars of a person for whom there was overwhelming evidence of general drug dealing, and specific evidence of a drug transaction the proceeds of which were now certainly in one of three cars in his garage, and certainly not in any of the others. However, to be more than a hunch or a supposition, in my own mind, requires a legitimate belief that there is more than a 5 or 10 percent chance that a crime is being committed or that evidence is in a particular location.

Let me nitpick just one kernel of nonsense in all this offensive drivel. If there is a greater than 50% probability that drugs are in exactly one (let alone "at least one") of a suspected drug dealer's three cars, then of course that's "probable cause" to search all three cars as part of one warrant (or how about "probable cause to search all vehicles on the suspect's property or registered to suspect"?). How on earth can you possibly argue that the magistrate must "divide 50% by three"?

Fortunately, this gobbledygook came in the form of dictum in a concurring opinion rather than a majority opinion, so the chance of any precedential value being assigned to Chief Judge Boggs' failed foray into probability theory and combinatorics is, to borrow a phrase, perhaps "5 or 10 percent."

But even those odds are too risky for my tastes.

The case in question is U.S. v. McClain, No. 04-5887 at 10 (6th Cir., December 2, 2005) (Boggs, C.J., concurring) (PDF - 10 pages).

More at Concurring Opinions.

As for me, I very much prefer the former Chief Judge of the Seventh Circuit Court of Appeals. Go figure.