Decius wrote:

Mike the Usurper wrote:

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.

There isn't really any ambiguity in there, and the places that have been fuzzy (Miranda, searching of vehicles on the way to impound etc.) have largely been ruled on by the courts. Where is there zero ambiguity? Houses and businesses. If there is to be a search, it is done with a warrant, period.

It acually is ambiguous. It says no warrants shall issue without probable cause, and it says no unreasonable searches, but it doesn't specifically say that every search requires a warrant. Thats what all of this stuff hinges on.

There are exceptions, but those have always been ruled by the courts under the "probable cause" clause of this. A major topic twenty years ago was a "good faith" exception. That was rejected. So what might constitute a "reasonable search" without a warrant? The usual "imminent threat" things that can't be handled via observation until a warrant is obtained. If there isn't a bomb in the house that can reasonably be expected to go off before a warrant is obtained, then they can't go in.

There are secondary areas where "reasonable searches" are allowed without warrants, such as the bit at airports, or events that do things like weapons checks.

The first clause is considered to be the ground rules by which the second clause operates. If you can't get a warrant, it's an unreasonable search. This is also what the FISA court is about, and why what they're doing already is unconstitutional. FISA was set up to get warrants without public disclosure of the particulars, with the ability to do so AFTER THE FACT. Under FISA, there is NO WAY to claim "immediacy" because warrants are obtainable after the fact.

If you can't get a warrant, it's an unreasonable search. Period.

RE: USNews.com: The White House says spying on terrorism suspects without court approval is OK. What about physical searches?