legal-history search-and-seizure fourth-amendment warrant reasonable
Before Terry, did the Fourth Amendment require a warrant for all searches and seizures or only the &quot;unreasonable&quot; ones?
<p>I'm trying to understand the direct meaning of the Fourth Amendment as best as possible. The Amendment states the following (emphasis added):</p>
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<p>The right of the people to be secure in their persons, houses, papers, and effects, <strong>against unreasonable searches and seizures</strong>, shall not be violated, and <strong>no Warrants shall issue, but upon probable cause</strong>, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.</p>
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<p>Is the statement that warrants require probable cause limited to the context of &quot;unreasonable&quot; searches and seizures, or was the idea that <em>all</em> searches and seizures, reasonable or otherwise, require a warrant? And in case Supreme Court precedent made the answer time-specific, I'm asking specifically how the Amendment would have been understood before <em>Terry v. Ohio</em>, as I want to know, as best as possible, which interpretation was originally held.</p>
<p>Before <em>Terry</em>, did only &quot;unreasonable&quot; searches or seizures require a warrant?</p>

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<p>was the idea that all searches and seizures, reasonable or otherwise, require a warrant?</p>
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<p>No.</p>
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<p>The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.</p>
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<p>This means that unreasonable searches are prohibited.  A prohibited search can't require a warrant because the search is prohibited.</p>
<p>If a warrant was issued for an unreasonable search then the warrant was issued in error.</p>

<p>Before <em>Terry</em>, and from the founding, there have been many warrantless searches that were considered reasonable.</p>
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<p>It was recognized by the framers of the constitution that there were reasonable searches for which no warrant was required.</p>
<p><em>United States v. Rabinowitz</em>, <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep339/usrep339056/usrep339056.pdf" rel="nofollow noreferrer">339 U.S. 56</a>, 60 (1950).</p>
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<p>As just one example, in <em>Harris v. United States</em>, <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep331/usrep331145/usrep331145.pdf" rel="nofollow noreferrer">331 U.S. 145</a> (1947), a warrantless search incidental to an arrest, even of an entire dwelling, was held to be reasonable. There are many other historically (and still) recognized exceptions to the warrant requirement relating to exigency and searches incident to arrest.</p>
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<p>The touchstone of the Fourth Amendment is reasonableness. The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable.</p>
<p><em>Florida v. Jimeno</em>, <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep500/usrep500248/usrep500248.pdf" rel="nofollow noreferrer">500 U.S. 248</a> (1991).</p>
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<p>The test &quot;is not whether it is reasonable to procure a search warrant, but whether the search was reasonable&quot;: <em>United States v. Rabinowitz</em>, <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep339/usrep339056/usrep339056.pdf" rel="nofollow noreferrer">339 U.S. 56</a> (1950).</p>
<p>Whether a warrant has been obtained is <em>part</em> of the analysis into whether a search is reasonable.</p>

<p>A unreasonable search is an unreasonable search, regardless of whether a warrant exist.  The warrant does not make the search reasonable, the warrant is a process whereby the police prove that the search is reasonable.</p>
<p>Note that this means that if the officer lies either actively or through omission, or conspires with the judge to get a warrant for an unreasonable search, the warrant is invalid.</p>
<p>The majority (and binding) decision, could in a way be interpreted as a SOCIAL statement, that it is considered reasonable for the police to search a person they have detained for weapons their own safety. The authorized search is limited to officers safety, they can not be searching for other evidence, only weappns.</p>
<p>IMO this was a step along the road to unacceptable deferment to the police and civil authority (previous step being Pierson v. Ray making up qualified immunity, Douglas dissenting in both cases).</p>
