[ataggart]

The word "reasonable" is not in the 4th Amendment, nor does it contain text granting the power to search without a warrant.

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.

I do find it interesting that many people consider probable cause sufficient grounds to conduct a warrantless search. Probable cause is one of the requirements to get a warrant, thus such thinking leads to the absurd situation where warrantless searches have a lower bar than warranted searches (which have additional requirements).

[tptacek]

You're right. I should have said "the concept of reasonableness" instead of "the word reasonable". Either way: unless you think James Madison was incompetent, the subjective word "unreasonable" appears in the amendment alongside the objective word "warrant" entirely in order to give the courts leeway to make case-by-case decisions about authorizing searches. The word "unreasonable" was no clearer in the 1780s than it is now.

There are times on HN when I am probably on very shaky ground arguing about con law concepts, but this is not one of them. Every modern Supreme court from Lochner through New Deal through Warren through Rehnquist has validated the idea that the 4th Amendment does not include a rigid requirement for every search to be accompanied by a warrant.

(Before reading Ely's _Democracy and Distrust_ this week, which, fantastic book, I'd have said "every Supreme Court ever", but now I'm not so sure since Ely cites a floor speech supporting the 14th Amendment that implies the 4th Amendment was interpreted differently in the mid-1800s.)

[ataggart]

the subjective word "unreasonable" appears in the amendment alongside the objective word "warrant" entirely in order to give the courts leeway to make case-by-case decisions about authorizing searches.

This looks like it agrees with my point: the warrant process is the objective mechanism by which the subjective reasonable/unreasonable decision is carried out. This says nothing about the permissibility of searches where the warrant process is skipped.

Of course, one can choose to assume there exists some unwritten permission for searches other than via the warrant process, but then we're no longer discussing the rule of law.

[anigbrowl]

This looks like it agrees with my point: the warrant process is the objective mechanism by which the subjective reasonable/unreasonable decision is carried out.

No, the warrant process is an objective mechanism by which the subjective decision is carried out. You have no textual grounds for saying it's the exclusive method, and there's no precedential support for it either. If we were to posit it as the only reasonable mechanism, then a police officer who observed you stuffing a dead body into the trunk of your car would be powerless to delay you absent a warrant, which is clearly a ridiculous position.

The role of the warrant is to allow the police to barge/kick in your door on the basis of available information rather than having to stake you out in hopes that you'll expose your criminal activity to them, which would allow them to conduct a regular search. It's not a prerequisite to a search and never has been AFAIK.

[tptacek]

You need a better understanding of common law and civil law. We're a common law country, and the Constitution is an instrument of common law. If you try to interpret it as the entire operating manual for the country, you'll end up in crazyland.