Making Leon Worse

Abstract

exceeds in net utility all other methods of searching and the al? ternative of investigation.102 Indeed, the cost of a search cannot be mea100. I believe that the word in probable cause means probable, i.e., more likely than not. See Brinegar v. United States, 338 U.S. 160, 175-76. For a contrary argument, see Grano, Probable Cause and Common Sense: A Reply to the Critics of Illinois v. Gates, 17 U. Mich. J.L. Ref. 465 (1984). If I am wrong on this, my conclusions lose some of their force but still stand. 101. Relatively minor intrusions, authorized by Terry v. Ohio, 392 U.S. 1 (1968), may be in a different category. 102. In any investigative situation, the relative costs and benefits of the four principal competitors (arrest searches, consent searches, warrant searches, investigation) can be rank ordered. There are sixteen possible orderings (ABCD, ACBD, BACD, etc.) Whichever method is at the top of the list when a decision is made will presumably be employed by rational police until the rankings become significantly reordered by circumstances; then there will be a shift to the method that has risen to the top of the ordering. Although, as a statistical matter, warrant searches are not often at the top of the list, I can see no reason why, when they are there, this signals unique motivations or strong cause.