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by ataggart 4878 days ago
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.

2 comments

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.

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.