Posted 8:22 PM by Robert

What Is "Probable Cause"?

There has been discussion here about "probable cause." So it seems to makes sense to post a discussion of what "probable cause" is.

For federal law purposes, the term "probable cause" arises most significantly in the Fourth Amendment in the Bill of Rights:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

So the applicable Fourth Amendment rule is: no search warrant is issued without a showing of "probable cause."

FISA provides that a warrant for a "physical search" (warrants for "electronic searches" are issued under similar standards) are issued under that statute if "on the basis of the facts submitted by the applicant there is probable cause to believe that - (A) the target of the ... search is a foreign power or an agent of a foreign power...; and (B) the premises or property to be searched is owned, used, possessed by, or is in transit to or from an agent of a foreign power or a foreign power." One additional detail: under FISA, a foreign terrorist conspiracy is a "foreign power".

So there is first the Constitutional concept of "probable cause" and second there is the FISA concept of "probable cause." One term - two meanings. A threshold question: Is the FISA consistent with the Constitutional concept of "probable cause."

"Probable cause" is not defined anywhere in the Constitution. The current Supreme Court test for finding "probable cause" is:

"The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. ... We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires ..."

Some people view the FISA definition of "probable cause" as simply inconsistent with (or broader than) the Constitutional concept. For example, Jonathan Turley believes that "[v]iewed by many as unconstitutional, the FISA court allows the government to search citizens without a showing of probable cause." Where he means "without a showing of Constitutional probable cause." Is this true in the case of foreign powers that are terrorist conspiracies?

Looking now just at foreign powers that are terrorist conspiracies, we can ask: Will the Supreme Court test ("given all the circumstances ... there is a fair probability that contraband or evidence of a crime will be found in a particular place") be met where the FISA test is met ("the target of the physical search is a foreign power or an agent of a foreign power ... and ... the premises or property to be searched is owned, used, possessed by, or is in transit to or from an agent of a foreign power or a foreign power")? In other words, if you search premises owned or possessed by a person who is an agent of a foreign terrorist conspiracy, is there a fair probability you will find evidence of a crime or contraband? As a "practical, common-sense decision" (which is what the Supreme Court directs), of course there is! There is no serious question as to the Constitutionality of FISA as now written and applied to foreign powers that are terrorist conspiracies.

But what if FISA were amended so that a warrantless search could be conducted of a non-US person simply where the authorities have a "reasonable suspicion" that the target of the search is a terrorist or the agent of a foreign terrorist conspiracy? Would THAT be a Constitutional version of FISA?

Probably yes. The Supreme Court has used several tests for Constitutional "probable cause" over the years. The case in which the current test was articulated stressed the need for "achieve the accommodation of public and private interests that the Fourth Amendment requires." Moreover, the Constitution grants to the Congress special powers over the rights of non-US persons which it does not have over US persons (especially citizens). No non-US person has a right to be in this country and move about in this society except with the consent of Congress. Put another way, a non-US person exists in a condition very much like probation. The Supreme Court has recently held that warrantless searches of persons on probation do satisfy the Fourth Amendment. With the safeguards imposed by the "reasonable suspicion" test, the special powers of Congress over non-US persons and the special needs created by terrorism, there should be little doubt that this decision would extend to cover FISA searches of non-US persons.

What about obtaining a warrant? One curious aspect of the Fourth Amendment is that it does not require "probable cause" for warrantless search (they are only required to be "reasonable"). But the Supreme Court generally requires that a warrant be obtained where practical - and that will often be the case where the target of a search is a non-US person. Is that a problem?

Probably not. Congress could amend FISA to include a new provision stating that where the target of the search is a non-US person, "probable cause" means a showing based on the totality of the circumstances of reasonable suspicion supported by articulable facts that the target is a foreign terrorist or is an agent or member of a foreign terrorist organization, regardless of whether the particular organization can be identified.

Would such an amendment satisfy the Supreme Court's test quoted above: "a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Yes. "All of the circumstances" should include the special powers Congress has under the Constitution over non-US persons and the special intelligence needs arising from the threat of foreign terrorism. With those circumstances taken into account, the weaker definition of "probable cause" should pass Constitutional muster in a walk.