Fractal Weirdness: Pa. Supremes Mis-read Probable Cause, SCOTUS Denies Cert.


The Supreme Court has denied cert. to a Pennsylvania high court ruling that severely limits what counts as probable cause in that state.

The dissent of Chief Justice Roberts succinctly, and creatively, sets forth the relevant facts:

North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a threedollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood.

Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn’t buying bus tokens. He radioed a description and Officer Stein picked up thebuyer. Sure enough: three bags of crack in the guy’s pocket. Head downtown and book him. Just another day at the office.

Pennsylvania v. Dunlap, No. 07-1486 (Oct. 14, 2008)(Roberts, C.J., dissenting).

The Pennsylvania Supreme Court held that Devlin lacked probable cause, because what he saw was a single transaction, he didn’t actually see the drugs, there was no tip from an informant, and the defendant did not try to flee. Therefore, there might have been an innocent explanation. Because there might have been an innocent explanation, there was no probable cause.

This is one for our Fractal Weirdness files. The defendant’s transaction may have several explanations, but the most likely one under the circumstances is that it was a drug sale. As Roberts said in his dissent yesterday, “that is by far the most reasonable conclusion, even though our cases only require it to be a reasonable conclusion.” (Italics in original.) Yet the Pennsylvania court has ruled, essentially, that it must be the only possible conclusion.

One might expect a spike in successful Fourth Amendment challenges in Pennsylvania now, and a decrease in street-level drug arrests, as the common sense of ordinary law enforcement is trumped by mere speculation into whether an observed transaction might possibly have been innocent. Officers are going to be compelled to ask themselves “but what if?” when seeing an act that screams probable cause to trained eyes. And if they can conceive of an innocent explanation, they’re going to be less likely to make an arrest.

This rule may even cause officers to decide not to arrest people when even this rule would have permitted it. The rule thereby defeats the purpose of the general Exclusionary Rule, by causing law enforcement to shy away from arrests and searches that the law actually allows.

The purpose of the Exclusionary Rule is to prevent the government from using evidence it should not have had, without preventing it from gathering all the evidence it is allowed to. That is why we do not penalize individual officers when they conduct an improper search — if there was a threat of personal penalty, then far from crossing the line most officers wouldn’t go anywhere near it, and evidence that they would have been perfectly entitled to gather would be lost. Society doesn’t want law enforcement to shy away from evidence it ought to have. Likewise, that is why the Exclusionary Rule does not exclude all evidence in a case, but only the evidence that is solely attributable to crossing the line. Society wants law enforcement to be able to go right up to the line, and even dance on the line.

This holding, however, is an incentive to law enforcement to shy away from the line. There is no guidance for what sort of speculation falls within the realm of possibility. There is a huge gray area of speculative plausibility that officers must now consider. The new law compels law enforcement to err on the side of not making an arrest based on speculative possibilities, even if far less likely than trained common-sense conclusions, and perhaps even less likely than what the court would have considered plausible. Arrests and seizures that would have been appropriate are going to be avoided, lower courts may over-apply this new rule, and Pennsylvania will then suffer less law enforcement than its judges probably intended to allow.

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1 Response

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