Absolutely.mayor wrote:b322da wrote:With my respect to the poster of the above, I must note that the first reference given here says at the beginning of the 4th paragraph: "In short, what [the 4th Amendment] means is that for a police officer to search your home or your belongings, he must present a warrant."
That statement is simply and clearly untrue. The 4th Amendment does not require the presentation of a warrant for a police officer to search your home or your belongings.
The 4th only protects us against "unreasonable searches and seizures." As one who has always thought the 4th Amendment is one of our most important, and one which today suffers from abuse and ignorance as much as any of our rights in the Bill of Rights do, and I include here the 2nd, I also firmly believe that if we go to the mat misquoting the Bill of Rights we not only do not help the cause of freedom, but we hurt it. That is, an untrue statement is easily rebutted, without getting into the merits of the particular case.
I must recognize, of course, that the author of that sentence goes on to weakly take some of the meat out of it, but the sentence stands alone as a statement of fact, and many, misled by such statements, wrongly believe them to be true. Unless there is some other requirement for a warrant under certain circumstances, either, for example, judge-made, legislature-made, or people-made, the follow-on in the 4th just describes what is required of the one seeking the warrant.
There have been judges and scholars who credibly argue that a search warrant, complying with the spirit and the words of the 4th before its issuance, makes the following search and/or seizure prima facie reasonable, although even the warrant may be later challenged. That is, it moves the burden of satisfying one's self in advance that a prospective search and/or seizure will be reasonable from the LEO or DA to a judge.
If we can succeed in protecting ourselves against unreasonable searches and seizures we will have won this battle without muddying the argument up unnecessarily.
Jim
I would think that this is also dependent upon one's interpretation of unreasonable. Personally, I consider the house to house search in Boston unreasonable - at least a search of my home would be.
The idea that the 4th means there's no requirement to present a warrant prior to a search assumes one thing which is evidently becoming not uncommon anymore, is the basis for the warrant bonafide? Or is it another papered pretext based on a 'confidential source/informant/or basic hearsay allegations "I smelled weed smoke, I saw pot plants, pick your excuse, etc"
'Well you can always hash it out in court later', as the argument goes. This assumes a lot of things, do you have the means to afford the legal costs? Can you get an attorney to take your case? Can you afford the time involved? Is there any real chance you can win? what will change if you do "win"? Far too many "ifs" for a basic right.