Warrantless Searches Happen All the Time

Former federal prosecutor Andrew C. McCarthy provides a list of 28 exceptions to the 4th Amendment’s requirement that a warrant be issued prior to a search. The list is a bit exaggerated by multiple listing of public safety exceptions but his point is nonetheless a good one.

Of course, “electronic surveillance of Americans suspected of terrorist ties when at least one party is overseas” is not among the 28. Whether it will be deemed to be by the courts remains to be seen, although it is certainly less “unreasonable” than some of those already on the list.

Hat tip to commenter Mal.

FILED UNDER: Intelligence, Law and the Courts,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. FredW says:

    Most of those contain some aspect of “consent,” contain the phrase “probable cause” which implies some judicial review, or are cases where in individual involved is informed (i.e. if I am searched when detained, I obviously know about it) and has chance to responsd later. The NSA spying includes none of those aspects.

    Do you honestly believe that the people defending Bush in this case would say the same things if it was Bill Clinton (or Al Gore) who had authorized it?

  2. Herb says:

    Now that a few days have passed and people have had the opportunity to research the laws, it appears that Bush did have the authorty to conduct the NSA wiretaps that have been the rallying topic of many of the Hate Bush critics. It appears that both Carter and Clinton conducted such searches and there again, they were found to be legal.

    When this story broke, the democrats and some republicans were like roachs that came out of the woodwork screaming and hollering that “Their rights were being violated”, Very few gave Bush the benefit of the doubt but instead began their cry for impeachment,and for Bush to be prosecuted for violating the laws and the Constitution.

    Well, the tide has now turned and their nieve knowledge of the laws has turned against them. That must be a gigantic blow to their egos.

    Lets see now if they will continue their hue and cry for Bush’s head or revert back to their same old theme of “Bush Lied” about the war.

    I do however think the time is right for each end every one of them to offer their appologies to those who had the patience and foresight to find out for sure if the laws were broken

  3. James Joyner says:

    Fred: There is no “judicial consent” in any of the cases listed by McCarthy nor, in many cases, is there any “probable cause.”

  4. RiverRat says:


    I suggest you spend a little time at Powerline. You’ll find you’re mistaken about the absence of “judicial consent”

  5. James Joyner says:

    RR: We’re talking about different things. I’m responding to Fred’s comment about McCarthy’s list of 4th Amendment exceptions.

    The Powerline guys are arguing that the courts have recognized presidential authority to conduct warrantless national security searches. I think the law is a bit murkier than they do but generally agree with their arguements. Indeed, I quote Hinderacker in my TCS piece that I wrote yesterday and came out this morning.

  6. NJ voter says:

    Hello…people…this is a war zone! Can’t the president simply declare a form of Martial Law to deal with the war on terror?

  7. Anderson says:

    NJ voter: Hello…people…this is a war zone! Can’t the president simply declare a form of Martial Law to deal with the war on terror?

    Another vote for fascism! Great. A bunch of f—heads blow up 4 jetliners and 3 buildings, and we’re supposed to tear up the Constitution?

    When did Americans become such sissies?

  8. LJD says:

    I like this one:

    “Conduct a warrantless search of random Americans at police checkpoints established for public-safety purposes (such as to detect and discourage drunk driving)”

    As terror is a “public safety” issue, I would say that by the same logic such searches would be allowed.

    Isn’t this just an electronic “checkpoint”, looking into e-mails and phone calls?

  9. McGehee says:

    Anderson: don’t play along with the sock puppets, m’kay?

  10. Anderson says:

    Oh, did I fall for a troll again? It’s hard to distinguish from the real thing sometimes?

  11. Herb says:

    Well, well, it’s almost 3 hours since my last comment on this subject and I haven’t seen any reply comments telling me that I hate America, am stupid, dumb, a Facist and a number of other choice words. Where did all of these banner waving “Freedom and Liberty” people go.

    I guess they must have crawled back into their dark holes of Liberalism, not to show their red faces again until something else comes up they can grab onto to promote their cause to wave the white flag of surrender and “Get Bush”.

  12. McGehee says:

    It’s hard to distinguish from the real thing sometimes?

    For you, maybe. ;-p

  13. Anderson says:

    For you, maybe. ;-p

    Oh, come on, I bet you think Herb and T-Bird are real …

  14. NJ voter says:

    I’m as real as any of y’all. Of course nothing can really be real until we see it on TV though. 🙂

  15. FredW says:

    JJ, I wasn’t talking about “judicial consent” but rather personal: If I leave the US I can expect to be searched when I return. If I don’t want to be searched, I won’t leave the country. Similarly, if I want to board an airplane, I consent to be searched. It is my choice. The same with a drivers license — I agree in advance to give up some rights for the “privlege” of driving.

    Take these out of the list, along with the other classes I mentioned and there is not a whole lot left of “warrantless searches” of citizens.

    I guess you could say if I don’t want to have my telephone conversations listened to, I shouldn’t make telephone calls. Are you ready to accept that?

    I find it ironic that those people who claim to be most suspicous of government, are the one who are saying here “Trust the goverment, they won’t listen to anybody they aren’t supposed to”

    If GWB an unilaterally suspend our 4th ammendment rights, could he also do the same for 2nd ammendment rights — that is confiscate personal firearms? Or are different parts of the Constitution “more equal” than others?

    BTW, I do have somewhat (but only somewhat) less of a problem with emails — I assume anyway that every email is “read” by somebody (not necessarily the goverment), somewhere along the way.