06 December 2005

Still Bogged Down

Professor Orin Kerr of The Volokh Conspiracy addresses a topic which was highlighted in yesterday's Blawg Review #35 -- Circuit Judge Boggs' concurring opinion discussing probable cause standards. Professor Kerr writes:
I think Judge Boggs is wrong, and that his hypothetical is based on a simple analytical error. Judge Boggs assumes that the "place to be searched" for the purposes of a warrant to search for evidence in a car must be an individual vehicle. In his hypothetical, the drug dealer has three cars in a garage, and there is evidence in only one of the three cars. Boggs concludes that probable cause must be a low probability because the chances that the evidence is in any one car are only 1 in 3, and yet the warrant in that case obviously would be issued.

The problem with Boggs' hypothetical is that the "place to be searched" in this hypothetical wouldn't be an individual car, or even the garage itself; the "place to be searched" normally would be the entire property that contained the garage and all of the cars inside it. The chances that evidence would be found in the place to be searched are 100%, not 1 in 3, as we know that the evidence will be found in one of the cars.

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