I'll Bet You didn't know THIS about "probable cause" for warrants, etc.

[Land Shark]

I've not verified this myself, but thought the abstract of this just e-published paper was interesting: How probable cause based on "specifically articulable facts" evolved out of the desire to have police be able to pursue and prosecute victimless crimes.

The Modern History of Probable Cause

Wes Oliver
Widener University - School of Law

It is frequently assumed that probable cause, roughly as we understand it today, has, since time immemorial, been the standard allowing an officer to search or arrest. The reality is that probable cause has change a lot since the Bill of Rights was drafted. In the mid-nineteenth century, probable cause was no more than a pleading requirement in criminal cases -- and never have been more than a pleading requirement in criminal cases. Victims of crimes alone were able to seek arrest or search warrants by swearing that they had suffered an injury and that they had probable cause to believe that the person identified committed the crime, or that evidence of the crime could be discovered in the place identified. The victim did not describe the factual basis of his suspicion. Probable cause as a pleading requirement for victims became inconsistent with late nineteenth century social regulations. In the latter half of the nineteenth century, states and the federal government created and punish victimless crimes. Prohibition, pornography and prostitution became targets of new government regulations. These new crimes required a mechanism to allow government searches and arrests without a victim's complaint. At the same time, professional police departments were emerging in American cities. This article accounts for the evolution of probable cause from the early nineteenth century pleading requirement to the modern evidentiary threshold requirment by looking at policing in New York City in the second half of the nineteenth century. While modern social regulations required a standard that public investigators could satisfy, distrust of the police prevented allowing police to simply plead probable cause as victims had done. A standard requiring police to offer facts supporting probable cause was thus born. {underlining added}

CITE AS: Oliver, Wes, The Modern History of Probable Cause (April 22, 2010). Available at SSRN: http://ssrn.com/abstract=1594261 (signup probably required)

I'm not intending here to defend a discussion position regarding "victimless" crimes and whether they are truly victimless, or of relaxations of the factual threshold standards for warrants and/or warrantless searches, but comments are welcome as is discussion if anyone wants to respond to a comment! :) I just never learned the above in law school and I can't think of anything inconsistent to it at this point. Any thoughts anyone?

[JDPriestly]

1. This does not surprise me. Think of the drastic changes

in establishing universal standards about issues like the right to an attorney, the right to a jury trial and the right to remain silent during the 1960s and 1970s. Criminal procedure is constantly evolving. Of course, some might argue that it is devolving now that we have such a right-winged Supreme Court.

Thanks for posting this. Interesting.

[Land Shark]

2. If it's accurate, I don't understand why it's not part of law school curricula and public education

...at least by some prominent groups such as civil liberties groups.