Judge Boggs Strikes Again

If you read Judge Boggs's concurrence in this case, you'll see an interesting paragraph (last page) on probable cause:

Finally, a word on “probable cause.” While courts have resisted mightily putting a number
on probable cause, see Maryland v. Pringle, 540 U.S. 366, 371 (2003), at bottom a review of cases
indicates that there must be some, albeit inchoate, feeling as to what kind of probability constitutes
probable cause. My reading is that it does not require a belief that there is more than a 50%
probability of evidence being found in a particular location. See, e.g., United States v. Gourde, 382
F.3d 1003, 1015 (9th Cir. 2004) (Gould, J., concurring) (collecting cases). If that were the case, one
could never get a search warrant to search all three cars of a person for whom there was
overwhelming evidence of general drug dealing, and specific evidence of a drug transaction the
proceeds of which were now certainly in one of three cars in his garage, and certainly not in any of
the others. However, to be more than a hunch or a supposition, in my own mind, requires a
legitimate belief that there is more than a 5 or 10 percent chance that a crime is being committed or
that evidence is in a particular location. Using this standard, my judgment would be that there was
probable cause to believe that criminal activity was afoot in the house, based on the information on
which the officers could reasonably rely that there was not a legitimate reason for activity in the
house.

The Good Judge is correct on the law here, but his suggestion that probable cause is as low as a .05 or .10 probability strikes me as troubling. Any thoughts?

Btw, this post makes some good points on the question. Consider the relationship b/w probable cause and reasonable suspicion, for example. If a police officer needs a lower level of suspicion to make a Terry stop, based on "reasonable suspicion," pointing to articulable facts, etc., what is the probability, under Judge Boggs's ".05 = probable cause" rule? Is reasonable suspicion .01? .001? It seems to me that this probability is way too low.

Pringle suggests that .33 is sufficiently probable for probable cause (1 out of 3). I would go as low as .25, maybe .20 on some fact patterns. But .10 . . . no.

And while you're over at Concurring Opinions, you can read this post on the topless photos of Jennifer Aniston. I would just add, on that point, that Ms. Aniston appears topless on the current issue of GQ (and inside, too), although the naughtiest bits are never shown. So I guess the naughtiest bits are visible in the other photos.