more on Hayden's Mistaken Understanding of the Fourth

[David Farber <dave () farber net>]

Begin forwarded message:

From: Mike Godwin <mnemonic () well com>
Date: May 6, 2006 3:58:39 PM EDT
To: dave () farber net
Cc: ip () v2 listbox com
Subject: Re: [IP] more on Hayden's Mistaken Understanding of the Fourth


Gene Spafford writes:

> I think it entirely possible that Hayden's response is being  
> misinterpreted.  As I read his comments to Jonathan Landay, I see  
> him as saying that the 4th protects against unreasonable searches  
> -- that probable cause only comes into play if the search is  
> unreasonable.   There is no need to show probable cause if the  
> search is reasonable.

This is a misreading of the Fourth Amendment.  Here's the text of the  
Fourth Amendment:

"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."

Basically, it provides two different prohibitions. First, searches  
must be reasonable. Second, and independently, there will be no  
warrants without a showing of probable cause, and the warrant must be  
particular in what it asks for.

A warrant cannot make an unreasonable search lawful.


Mike Godwin
mnemonic () well com






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