Cleanville Tziabatz:
I think courts courts have the power to make whatever 4a remedies they want, including, but not limited to, prescribed money payments from the police to victims of their fruitless searches.This includes the power to increase a prescribed payment by a hundredfold if it is not made within 48 hours.Courts may not be able to order the money out of the police budget, but they do have the power to make police wish that they had compensated their victim as a voluntary matter with but a moderate payment (just large enough to keep the fruitless search level at below 50% on a systemwide basis).If you doubt the power of the court, I suggest you pull Brown v. Board of Ed. (1950).

Brown only had force because Eisenhower was willing to enforce it. There is at least one famous case of a not so accommodating president.

David Nieporent: . . .Well-founded suspicion . . .

Like I said, funky mystery dance. The words “probable cause” are much more clear than this exclusionary rule induced talisman. The exclusionary rule has made for some REAL BAD LAW (and its getting worse since 9/11).

David Nieporent: It may be a good policy, but you think “courts” have the power to appropriate money from the treasury?

I think courts courts have the power to make whatever 4a remedies they want, including, but not limited to, prescribed money payments from the police to victims of their fruitless searches. This includes the power to increase a prescribed payment by a hundredfold if it is not made within 48 hours. Courts may not be able to order the money out of the police budget, but they do have the power to make police wish that they had compensated their victim as a voluntary matter with but a moderate payment (just large enough to keep the fruitless search level at below 50% on a systemwide basis).

If you doubt the power of the court, I suggest you pull Brown v. Board of Ed. (1950).

She is concerned about the standards being such that police have the discretion to come, without the occupant’s permission, into a majority of American homes. She knows that that cannot be right and, indeed, it is not.

If a majority of Americans have broken the law, and there’s evidence of this, then of course it’s right.

(That is, it’s right as a formal legal matter; as a political matter, obviously if a majority of Americans are breaking a law, it probably should be repealed.)

Mine would be automatic payments for fruitless searches, stops and/or frisks. Sort of like how the airlines have to pay when you get bumped from a scheduled flight. The payments should only be really large if the police fail to make them within 48 hours. This is what courts should put into place in lieu of the exclusionary rule.

It may be a good policy, but you think “courts” have the power to appropriate money from the treasury?

It is only very recently (read: post 9/11) that our prosecutor heavy bench has started to be clear that they think something less than a preponderance will suffice. People like Judge Moore have decided to do something about it. I have decided to do something different, because I am creative like that:

Not only is this a falsehood, but it’s one that contradicts your repeated claims that we should ignore the scores of cases since 1914 that all say that probable cause is far less than preponderance. Well-founded suspicion. That’s what scores of cases say, notwithstanding that you found a single quote that wasn’t even about the fourth amendment that said something different.

Soronel Haetir: Were you reading a couple weeks ago when we discussed a case where a panel majority did in fact find PC to be so lacking that no reasonable officer could rely on the warrant? That post provides a good example of how low the threshold actually is. Note that is a civil rights case, not an exclusion case.

Yes, this is the problem with 4a law.

This will change after the exclusionary rule is eliminated. In a perfect world, with fewer Orin Kerrs and Sonia Sotomayors, this would change at the the same time that the exclusionary rule was eliminated.

As far as non-exclusionary rule frameworks that have more teeth than section 1983 actions, what is your favorite proposal? Mine would be automatic payments for fruitless searches, stops and/or frisks. Sort of like how the airlines have to pay when you get bumped from a scheduled flight. The payments should only be really large if the police fail to make them within 48 hours. This is what courts should put into place in lieu of the exclusionary rule.

Tim:
I beg your pardon, Professor, but you’ve clearly overlooked the critical point.That something was “learned” by law enforcement does not make it “legal.”I suggest that you start over and read carefully, as it’s clear that you’ve missed the most critical piece of information.I might further add that lacking any evidence that this information was obtained legally, it is presumptively invalid.The burden is on the government to show otherwise, NOT on the defendant.

Even Moore doesn’t question whether the information was learned through legal means. Honestly I believe you are barking up the wrong tree here. If it were actually in question the defense either would have saved the issue for appeal or the guy has a great IAC claim. Assuming the later is not the case the defense friendly judge at least would not have over-looked the issue.

Would it be possible to find the warrant and affidavit using PACER? It would not surprise me at all if the warrant laid out the basis for how the information was learned. Such is generally the case with informants, I see no reason the same wouldn’t be true with website records.

Orin Kerr: Tim Nuccio writes:
You forgot to say that the FBI planted the evidence on Frechette’s computer.If you’re going to invent claims of government misconduct, I think that’s a good one to invent.

I beg your pardon, Professor, but you’ve clearly overlooked the critical point. That something was “learned” by law enforcement does not make it “legal.” I suggest that you start over and read carefully, as it’s clear that you’ve missed the most critical piece of information.

I might further add that lacking any evidence that this information was obtained legally, it is presumptively invalid. The burden is on the government to show otherwise, NOT on the defendant.

Were you reading a couple weeks ago when we discussed a case where a panel majority did in fact find PC to be so lacking that no reasonable officer could rely on the warrant? That post provides a good example of how low the threshold actually is. Note that is a civil rights case, not an exclusion case.

Soronel Haetir: Cleanville,Even under the test you propose there is ample reason to believe it is more likely than not that evidence of criminal activity would be found at the given house on computers.The house had been matched to the IP used and the account records to the resident.Probable cause does not require negating all possible counter-arguments.I am still trying to figure out whatever evidence/knowledge in the possession of the police, rather than just imagined situations, you would point to in this case that point away from PC being present. . . .

1. No, probable cause doesn’t require negating all innocent possibilities. It does, however, requiring weighing and considering them. This is true even under the Orin Kerr type defo of probable cause.

2. There may have been probable cause here because of this guy’s priors. Unlike Orin Kerr, I think this is a close case, and not a no-brainer, under the proper “probable cause” standard. I said as much in a previous post on this thd.

3. This case only came up to an appeals court because this guy Frechette is a true pedo. That fact is a consequence of the exclusionary rule being the primary mechanism by which 4a is enforced. I would rather that police had a motive to show “probable cause” in a case where there was no CP. That won’t happen unless and until there is a different mechanism (WITH TEETH AND DETERRENCE) for enforcing 4a. With fundamentally different 4a enforcement remedies, different cases would come up to the appeals court, which is what should happen. Like I sed above, abolish the exclusionary rule!

Even under the test you propose there is ample reason to believe it is more likely than not that evidence of criminal activity would be found at the given house on computers. The house had been matched to the IP used and the account records to the resident. Probable cause does not require negating all possible counter-arguments.

I am still trying to figure out whatever evidence/knowledge in the possession of the police, rather than just imagined situations, you would point to in this case that point away from PC being present.

And again, the more cases like this where prolonged possession is demonstrated without counter cases of non-possession the more reasonable it becomes to credit such experience in the future.

Perhaps you wish to argue against such experiential inferences being allowed to form the basis of PC. I can’t help you much if you want to start arguing against situations like police observing people exchanging money for small glassine packets of white powder and in the experience of the officers it’s a drug transaction rather than someone on the street buying sugar or wheat.

SeaDrive:
How do you resolve the problem that you may not know what you have until after you receive it? Just about any link on a social networking site could lead to the display of CP on your computer.

You have then neither knowingly received it (since you never intended to receive it) nor knowingly possessed it (since you never asserted any control over it).

If you want to argue that you can knowingly possess something without having knowingly received it, I have some sympathy. But I would argue as soon as you switch from “unknowingly possessing” to “knowingly possessing”, you have knowingly received. (Though I’m not committed to that position.)

One can argue that that is more a problem of the criminal part of the law of copyright infringement, but her position seems to be it is a problem better addressed, at least in part, by the “probable cause” requirement of Fourth Amendment law, and that view does have considerable appeal to people who aren’t bedwetters or wannabe prosecutors.

we, as judges, must not let our personal feelings of scorn and disgust
overwhelm our duty to ensure the protection of individual constitutional rights.

But are judges not to decide issues based only on guilt and innocence, not on the practicality of the law or law enforcement?

there are not enough officers in the nation to enforce the countless warrants…

How is that her concern as a judge? That’s a police issue. Nor is she allowed to consider the consequences of her decision: she is to decide on guilt/innocence and constitutional/unconstitutional grounds alone.

It is only very recently (read: post 9/11) that our prosecutor heavy bench has started to be clear that they think something less than a preponderance will suffice. People like Judge Moore have decided to do something about it. I have decided to do something different, because I am creative like that:

ABOLISH THE EXCLUSIONARY RULE!

I said that no “man of prudence and caution” could possibly form a “belief” (as contrasted with a mere suspicion) based on anything less than a preponderance. As I understand your criticism, you are saying that my inference is wrong because it was not an inference that Stacey expressed. It is true that Stacey did not explicitly make this inference. Still, it is an unavoidable inference based on the meaning of the words, “belief,” “prudence” and “caution.” Cautious men simply don’t form beliefs based on less than a preponderance. Rather, that is what incautious and imprudent men do. And that was as true in the 1800s as now. This may blow your ‘lil post-9/11 mind, but that makes it no less true.

At any event, Stacey spoke more clearly. A reasonable man would never form a belief on less than a preponderance.

Stacey did not say this; that’s merely your misinterpretation of its words. No court has ever said this. Every case that has considered the issue has stated explicitly that probable cause is less than a preponderance. What Stacey did say explicitly, as I noted, that “probable cause” means “reasonable cause of suspicion,” and what Stacey did say explicitly was that (pre-exclusionary rule) cases such as Carrington properly define the meaning of the phrase.

And, it should also be considered that there was not a huge need to expound upon the phrase “probable cause” back in those pre-Exclusionary Rule days when this Constitutional phrase was still interpreted according to its plain meaning, to wit, that cause exists as a probability in fact.

I see. So we should ignore the cases after 1914 because the exclusionary rule distorted the meaning, and we should ignore the cases before 1914 because before the exclusionary rule came along and distorted the meaning, the court didn’t need to explain what the meaning was. (Ever notice how conspiracy theorists always have nice neatly-packaged explanations for why they can’t be disproven?)

Therefore, to the extent that Locke is taken to suggest a standard less rigorous than the modern Terry stop standard, it was speaking in dicta

On the other hand, if Locke‘s phrase “even light” means “equipoise,” then Locke explicitly said (albeit in the archaic language that was in style circa 1813) that “probable cause” means what a modern lawyer would call “preponderance of the evidence.”

At any event, Stacey spoke more clearly. A reasonable man would never form a belief on less than a preponderance. And, it should also be considered that there was not a huge need to expound upon the phrase “probable cause” back in those pre-Exclusionary Rule days when this Constitutional phrase was still interpreted according to its plain meaning, to wit, that cause exists as a probability in fact.

Would a “man of prudence and caution” ever form an affirmative belief based on less than a preponderance? The answer is clearly no.

Arguments that have merit do not use the word “clearly”; if it were clear, you wouldn’t need to say it. It’s not “clear” at all that your claim is right; in fact, it’s wrong. At no time did the court ever apply a preponderance standard. I’m familiar with Stacey v. Emery, upon which you’re putting your own gloss which is not present in the decision. But even if I let you have that, I’ll give you Locke v. U.S., 65 years before Stacey: “circumstances which warrant suspicion.”

(Indeed, Stacey itself rejects your misinterpretation, explaining that probable cause means reasonable cause, and citing to earlier cases such as Carrington which defined it as a “well-founded suspicion.”)

Cleanville Tziabatz:
No.Before the exclusionary rule started being introduced into Fourth Amendment law (that is, before 1914 or therabouts), the standard for probable cause was whether the totality of the circumstances would cause “a man of prudence and caution in believing” that there had been a crime justifying seizure or was evience justifying a search.Would a “man of prudence and caution” ever form an affirmative belief based on less than a preponderance?The answer is clearly no.It might take merely a preponderance at a bare minimum.It might take something more, if “prudence” means what I think it means.But, clearly a “man of prudence and caution” would never “believe” based on anything less than a preponderance.That is what “probable cause” meant before the exclusionary rule rendered it a meaningless construct.Pull Stacey v. Emery if you do not believe me.I am afraid you are the one who does not know the pre-Exclusionary Rule meaning of “probable cause.”Yet somehow you think you do.

Except that it’s a question of whether there is reason to believe that evidence will be located at the site and amongst the named items. Preponderance of the evidence is a proof standard, as are clear and convincing and beyond reasonable doubt. Probable cause is lower still, and reasonable suspicion less demanding than PC. The lowest level in this chain that I’ve seen used is articulatable suspicion.

A different example of how easily PC can be met, you pick up someone for passing counterfeit currency, they tell you that they bought it from Arty at X address. So long as your informant is able to describe X without being taken there you have enough for PC. Some post search challenges can be made to this, such as the informant not being trustworthy etc, but they will generally fail in the case where the evidence is actually found at X. An innocent person at X would have a better case in the instance of a lying informant.

The point of the above example is that PC is a fairly low standard, the evidence to generate it can be one sided so long as no material known facts are not included. It is not based on totality of evidence.

David Nieporent: Ah, I see your problem. You simply don’t know the law. Probable cause does not mean preponderance of the evidence. It is not “supposed” to mean preponderance of the evidence. It’s not anything close to preponderance of the evidence, wasn’t anything close to preponderance of the evidence before 9/11, and wasn’t anything close to preponderance of the evidence a century before that. . . .

No. Before the exclusionary rule started being introduced into Fourth Amendment law (that is, before 1914 or therabouts), the standard for probable cause was whether the totality of the circumstances would cause “a man of prudence and caution in believing” that there had been a crime justifying seizure or was evience justifying a search.

Would a “man of prudence and caution” ever form an affirmative belief based on less than a preponderance? The answer is clearly no. It might take merely a preponderance at a bare minimum. It might take something more, if “prudence” means what I think it means. But, clearly a “man of prudence and caution” would never “believe” based on anything less than a preponderance. That is what “probable cause” meant before the exclusionary rule rendered it a meaningless construct. Pull Stacey v. Emery if you do not believe me.

I am afraid you are the one who does not know the pre-Exclusionary Rule meaning of “probable cause.” Yet somehow you think you do.

In this sense, it is supposed to be highly analogous to a preponderance standard. However, the exclusionary rule has eroded probable cause to the point where people, like Professor Kerr, think it means something much less. If the magistrate held a civil trial (instead of a warrant hearing) and the issue was whether there was CP in Frechette’s house at the time of the trial, it is highly unlikely that the side arguing that the evidence was there would have won (maybe because of the priors, but generally unlikely and certainly NOT if there were no priors).

Ah, I see your problem. You simply don’t know the law. Probable cause does not mean preponderance of the evidence. It is not “supposed” to mean preponderance of the evidence. It’s not anything close to preponderance of the evidence, wasn’t anything close to preponderance of the evidence before 9/11, and wasn’t anything close to preponderance of the evidence a century before that. It has not “eroded” as a result of the exclusionary rule.”

“Probable cause” does not mean “more probable than not.” Rather, it means something closer to “reasonable grounds for belief,” and “probabilities” in the mathematical sense are irrelevant. (Your reference to Daubert, which I anticipated above, just illustrates your confusion. You’re applying completely the wrong standard.)

David M. Nieporent: Cleanville, you haven’t shown a single point in history where probable cause meant what you want it to mean. (Let alone that anything has changed since 9/11.) And Moore’s dissent is not a brave stand against the war on terror, but simply a misunderstanding of the difference between receipt and possession. (The “staleness” argument she (and you) make so much of, even if convincing, applies only to the latter, not the former.)The police are not supposed to have to try the case – including anticipating and refuting every possible defense that might be raised – in order to obtain a warrant.

Probable cause is supposed to mean that it is “probable” (that is, more likely than not) that there is cause (in the context of search warrant, this means evidence of a crime).

In this sense, it is supposed to be highly analogous to a preponderance standard. However, the exclusionary rule has eroded probable cause to the point where people, like Professor Kerr, think it means something much less. If the magistrate held a civil trial (instead of a warrant hearing) and the issue was whether there was CP in Frechette’s house at the time of the trial, it is highly unlikely that the side arguing that the evidence was there would have won (maybe because of the priors, but generally unlikely and certainly NOT if there were no priors).

If you want to know what probable cause hearings should look like in the modern world, if the exclusionary rule had not so eroded society’s collective judgment, then the best place to start in Daubert v. Merrell Dow (S.Ct. 93(?)). That case explains how probabilities are and are not to be shown in the modern world. It is so far out of whack from criminal “probable cause” it is not even funny. In this case, the civil side has gotten the standards correct and the criminal side has been hopelessly subvrted by the don’t-throw-me-into-the-briarpatch politics of the exclusionary rule.

Time for a new Fourth Amendment remedy — one that is compatible with requiring “probable cause” to be, ummmmm, PROBABLE and established by competent evidence, rather than policeman-said-so.

remember, if we didn’t have the exclusionary rule, Fechette would still be in prison even if there wasn’t probable cause.

The police are not supposed to have to try the case – including anticipating and refuting every possible defense that might be raised – in order to obtain a warrant.

IMO the natural conclusion is that “receiving” and “possessing” mean the same thing.

How do you resolve the problem that you may not know what you have until after you receive it? Just about any link on a social networking site could lead to the display of CP on your computer.

David Nieporent: His attempt to rewrite centuries of probable cause law and his repeated red herring references to 9/11 give it away.

Probable cause started to erode, as an evidentiary standard, before 9/11, but 9/11 and all its attendant law’n'order jingoism has really accelerated the process.

The real problem is the exclusionary rule. Currently “probable cause law” (even that phrase betrays a fundamental understanding of the jurisprudential role that probable cause is supposed to play in keeping cops out of my house) is determined in context of some heinous criminal trying to stay out of prison where he belongs. We know the result we want. In this case, like all the others, we know the result we want. We want Frechette in jail. So we hand wave away “probable cause,” allow the magistrate to define it down to a nullity, allow Professor Kerr argue that it is a matter of law and not of fact. The end justifies the means. America is a war. War, war, lots of wars. And here is Cleanville wanting the troops out of his house. Silly Cleanville! You must love your troops better.

We need the exclusionary rule out of the picture. It is a black ops agent in the house of justice. What we really need is a remedy where somebody like Professor Gates gets to do things that will deter future bad conduct. Because, ultimately, Judge Moore’s brave and true defense of “probable cause,” in the context of exclusionary rule cases, is a bad hill to die on.

One way to avoid receipt, though not real helpful, is production. Production carries its own punishment however. Is the receipt/possession issue really at all important for this case though?

It could be — but not for the issue of the search warrant, no. As some of the cases Moore cites indicate, if you browse the web but don’t deliberately save the pictures (though they would inadvertently be saved in one’s browser cache), you might not be guilty of possession, but only receipt.

David Schwartz:

Congress enacting a poorly worded law that doesn’t clearly articulate it’s purpose, improbable?

I guess I can see Soronel Haetir’s distinction. Knowing possession could include finding it accidentally and then knowingly acting to keep it. While knowingly receiving requires an intent to receive it whether or not one intended to assert a possessory interest. But that would criminalize intentionally viewing child pornography (and pretty much only that, as how else can you receive it without possessing it?), and it seems quite odd to me that Congress would do that by using the word “receiving”.

While that seems very improbable to me, it’s logically consistent as far as I can tell.

For the matter of PC that evidence can be found at the given location and in the given place this case does in fact appear straightforward. And with the staleness argument, the more cases like this where continued possession is in fact determined even after significant time lag the more evidence there is for others to draw on when making the experiential argument that such cases don’t go stale. When you can cite cases going backto 1996 that such cases don’t go stale and the body of intervening evidence only serves to re-enforce that point I don’t see this becoming a winning argument.

It would be far more interesting to try and develop a civil rights case if this search had been a dud because someone had managed to steal this guy’s identity right down to his IP address. Any such case seems like it would be tough sledding, a reasonable officer would be able to rely on the sworn facts to believe that evidence of a crime would be present.