OPINION: When the system gets it wrong: The hidden power—and danger—of ‘probable cause’

Professor Michael Foreman directs the Civil Rights Appellate Clinic at Penn State Dickinson Law. His clinic represented the National Police Accountability Project, which filed an amicus brief supporting Jordan Brown.

When police make an arrest in the United States, they’re required to have a good reason—a legally defined one called “probable cause.” It’s a cornerstone of the Constitution, meant to protect ordinary people from being detained based on little more than suspicion or guesswork. It’s the standard police must meet before taking away someone’s freedom.

But what happens when that standard is built on shaky—or even false—ground?

That question sits at the heart of a case currently before the United States Court of Appeals for the Third Circuit. At its center is Jordan Brown, who, according to court filings, was just 11 years old when Pennsylvania state troopers arrested him for murder. The case has drawn national attention—not just because of Brown’s age but also because of what legal advocates say went wrong before he was ever taken into custody.

At stake is more than this young man’s story. The case raises broader concerns about how honest police investigations must be—and who gets to decide when they fall short.

A system built on trust

The Fourth Amendment of the U.S. Constitution protects individuals from unreasonable searches and arrests. To make an arrest, police must first convince a magistrate judge that there is “probable cause”—a reasonable belief that a crime has been committed. This requirement dates to the founding of the United States, written in part as a reaction to British colonial practices, when authorities could search homes freely based on vague suspicions. The framers of the Constitution wanted a check on that power: a neutral judge who would review the evidence before any intrusion on personal liberty. But that safeguard depends on one thing above all: honesty.

Officers submit a sworn statement, called an affidavit, laying out the facts. A judge—meant to act as a neutral gatekeeper—reviews those facts and decides whether there is probable cause. But that safeguard only works if the information is accurate.

Legal advocates, including the National Police Accountability Project, argue in an amicus brief filed in support of Brown that when officers omit key details or include misleading statements, the entire system breaks down. A judge cannot make a fair decision without the full picture.

The allegations in Brown’s case

According to court filings, Brown was arrested at age 11 after police obtained a warrant based on what the facts now show was a flawed, incomplete, and, in some cases, misleading affidavit. Brown claims the police left out important evidence—such as exculpatory statements that might have helped him—and relied on questionable or incomplete information, such as inconsistent statements from a young seven-year-old witness.

The Supreme Court of Pennsylvania ultimately threw out the conviction for insufficient evidence, and Brown filed malicious and fabrication of evidence claims against the police officers. An essential element in proving these claims is to show there was no probable cause for the charges. Brown argued that the uncontested facts showed that probable cause was based upon incomplete and false information. Brown argued the judge must decide this as a matter of law. But the judge allowed the issue to go to a jury, and the jury ruled against Brown.

If Brown’s claims are true, the implications are serious. The law allows defendants to challenge warrants obtained through false or misleading statements. And if key facts were omitted or fabricated, courts can throw out the warrant entirely.

Judge or jury?

But when should the judge step in to ensure justice? In most trials, juries resolve factual disputes. But this case highlights a different issue: whether certain questions should be decided by a judge instead. When the underlying facts aren’t in dispute, judges—not juries—should determine whether probable cause existed.

Why does that matter? Because probable cause is not just a factual question; it’s also a legal one. Judges are trained to apply legal standards consistently, while juries may interpret them differently. If courts leave these decisions to juries in cases involving allegedly false affidavits, critics warn, outcomes could become inconsistent, weakening constitutional protections.

A broader pattern

Brown’s case is not an isolated concern. Studies cited in the amicus brief filed by the National Police Accountability Project show that official misconduct plays a role in a significant number of wrongful convictions. False statements, withheld evidence, and misleading testimony appear far more often than many people realize. These problems often begin early—at the moment probable cause is established. If an arrest is based on faulty information, that error can ripple through the entire case, influencing everything from charges to trial outcomes.

And once someone is arrested, the consequences can be life-altering. Even if they are eventually cleared, as in Brown’s case, years of a person’s life may be lost.

Why it matters

At its core, this case is about more than one arrest. It’s about whether the legal system can ensure that its first step—deciding who gets arrested—is grounded in truth.

Brown and those supporting him argue that courts must take a more active role in reviewing questionable warrants, especially when there’s evidence they were built on misleading information. If not, they say, the probable cause standard risks becoming a mere formality rather than a meaningful safeguard.

Public confidence is also on the line. Surveys show that many Americans already question whether the justice system treats people fairly. Cases like this can either reinforce those doubts—or demonstrate that the system is capable of correcting itself.

The road ahead

As the United States Court of Appeals for the Third Circuit considers the case, its decision could shape how courts handle similar disputes in the future. Will judges take a stronger role in policing the integrity of warrants? Or will these questions continue to be left largely to juries? If courts allow warrants to stand even when based on incomplete or misleading information, critics say, it can encourage officers to stretch or omit facts to secure arrests. Over time, that could weaken the very safeguard probable cause is meant to provide. On the other hand, requiring courts to scrutinize affidavits closely—and to step in when they’re flawed—could reinforce accountability and deter misconduct.

For Brown, the outcome could determine whether his arrest is ultimately deemed lawful and whether there is any redress against the police officers for taking away years of his young life based upon an incomplete and, in some parts, false affidavit. For everyone else, it may help define how much truth the justice system demands before it takes away someone’s freedom.