Congress Expands FBI Spying Power

Wired Magazine ^ | Nov. 24, 2003 | Ryan Singel

[steve-b]

Permission to search can be obtained either prior to the fact (by obtaining a warrant) or after the fact (by going ahead and conducting the search, and then taking your chances that the legal system will accept your evidence and not prosecute you for trespass, theft, etc).

[steve-b]

I also have not problem with secret searches provided that a true warrant is obtained from an independent judge.

The catch is that if a search can be kept secret indefinitely (as under the "Patriot" Act), then it is impossible to hold the searchers to that standard -- if they never have to prove that they got a warrant, they can just go ahead without bothering to do so.

There are cases where a search has to be kept secret at the time; however, the system needs to have a date certain for meeting the legal requirements.

[steve-b]

So where in this amendment do you find the wiggle room for reasonable searches with out sworn warrants.

It has always been recognized in common law that if a peace officer sees evidence that is already in reasonably plain view, he can take note of it and act on it. For instance, upon hearing the sounds of a violent struggle on the other side of the door, it is "reasonable" to break down the door and intervene.

However, permission is still needed -- if not before the fact via warrant, then after the fact by submitting one's actions for judgment. If this judgment says that the search was not "reasonable", then evidence may be thrown out, or the officer may even be liable to civil action or criminal prosecution.

This is accepted as a necessary check by most people (seamole to the contrary notwithstanding).