[IP] more on Hayden's Mistaken Understanding of the Fourth
Begin forwarded message:
From: Mike Godwin <mnemonic@xxxxxxxx>
Date: May 6, 2006 3:58:39 PM EDT
To: dave@xxxxxxxxxx
Cc: ip@xxxxxxxxxxxxxx
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@xxxxxxxx
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