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Chapter 3 · The Fourth Amendment
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From the page before
What is 'prior restraint'?
The answer: Government blocking publication before it occurs
Why: Prior restraint faces the heaviest burden in our law. Printing first and facing the results after is one thing. Being stopped before you print is another.
Searches, warrants, and what happens in a stop
The Fourth Amendment bars unreasonable searches and seizures. It also sets the rules for a warrant. A warrant needs probable cause. It must be sworn to. And it must say, in particular terms, what place will be searched and what things will be taken.
That last part kills the general warrant. A general warrant let an officer search whatever he liked. The colonists lived under them and hated them. The amendment is a direct answer to that.
Warrant, consent, or an exception
Most searches happen under one of three headings.
A warrant. A judge looked at the facts first and agreed there was probable cause.
Consent. You said yes. This is by far the most common one, and it is worth knowing well. You may say no. Saying "I do not consent to a search" is lawful and ordinary. You do not have to give a reason. Saying no is not evidence that you did anything wrong.
An exception. A few exist. They are narrower than most people think:
- Something in plain view.
- A search right after a lawful arrest.
- An emergency, such as someone in danger or evidence about to be destroyed.
- A limited pat-down for weapons, during a lawful stop, when there is reasonable suspicion the person is armed.
Two standards, and the gap between them
Reasonable suspicion is the lower bar. It takes specific facts an officer can name. It is enough for a brief stop.
Probable cause is the higher bar. It is needed for an arrest, and for most warrants.
Before you turn the page
What does a valid warrant have to describe?
Which standard is required for an arrest?
Trying to recall a thing before you read it again is what makes it stick. That is why the question is here.
Nothing is scored. Nothing is saved. No one sees your answer, and there is no account to make.