by Matt Barr

The Fourth Amendment's requirement of probable cause

Sometimes, I guess, your antennae are so tuned to threats to civil liberties you don't pick up when someone's got a point you wish they didn't. Tim Cavanaugh and Radley Balko dial up the snark on Gen. Michael Hayden, who otherwise is set to have such clear sailing to the CIA Directorship, because of this exchange:

QUESTION: Jonathan Landay with Knight Ridder. I'd like to stay on the same issue, and that had to do with the standard by which you use to target your wiretaps. I'm no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American's right against unlawful searches and seizures. Do you use—

GEN. HAYDEN: No, actually—the Fourth Amendment actually protects all of us against unreasonable search and seizure. That's what it says.

QUESTION: But the measure is probable cause, I believe.

GEN. HAYDEN: The amendment says unreasonable search and seizure.

QUESTION: But does it not say probable—

GEN. HAYDEN: No. The amendment says unreasonable search and seizure...

Cavanaugh limits comment to a reproduction of the Amendment's text (in two languages); Balko's comment is "swell," "President Bush's nominee for top spook can't find the phrase 'probable cause' in the Fourth Amendment."

The Fourth Amendment protects us from unreasonable searches and seizures, and tells you what a warrant has to have. Unless Tim and Radley want to argue that no search is permitted under the Fourth Amendment unless there's a warrant issued, which the Amendment doesn't say and which certainly isn't practice, I think we all have to agree that the Fourth Amendment doesn't require probable cause before a search is deemed "reasonable."

A warrant that meets the requirements of the amendment makes a search reasonable, but don't get syllogism all over yourself thinking that therefore no search is reasonable without a warrant issued on probable cause.

The Supreme Court does indeed require (or at least makes noise about requiring, even while blessing things like random traffic stops) probable cause for warrantless searches, though you could dicker over whether, say, a search incident to arrest is prima facie made on probable cause -- you have probable cause to arrest (seize), so you must have probable cause to search -- or whether it's an exception to the rule -- you're taking the person into custody, and you don't want him whipping out a pistol and shooting you from the back seat; even if you have no reasonable basis to believe he will, we liberty-lovers certainly understand.

The Fourth Amendment doesn't require probable cause except to issue a warrant. It (importantly) prohibits warrants issued without probable cause: "See, here, I'm arresting you, and you can't complain about it, because I've got this warrant I made out swearing you're a menace to society and signed by my captain." But that's all it does.

This came up in criminal law class, and there were some surprised and/or disbelieving people. (Or maybe it was a discussion outside of class; the 90s are a haze.) But that text can be pesky.

Interpret this. Under constitutional law (not the Constitution), you are entitled to "effective assistance of counsel" in criminal court. Would that right be guaranteed by the following text?

You have the right to have an attorney respresent you as a defendant in criminal court. If you can't afford an attorney, you are entitled to court-appointed counsel, who, though paid by the government, must nonetheless represent you effectively.

No. Neither does this, on its face, require probable cause to make a search "reasonable":

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.

UPDATE: The Fourth Amendment continues to confound.

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