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.
I do find it interesting that many people consider probable cause sufficient grounds to conduct a warrantless search. Probable cause is one of the requirements to get a warrant, thus such thinking leads to the absurd situation where warrantless searches have a lower bar than warranted searches (which have additional requirements).
There are times on HN when I am probably on very shaky ground arguing about con law concepts, but this is not one of them. Every modern Supreme court from Lochner through New Deal through Warren through Rehnquist has validated the idea that the 4th Amendment does not include a rigid requirement for every search to be accompanied by a warrant.
(Before reading Ely's _Democracy and Distrust_ this week, which, fantastic book, I'd have said "every Supreme Court ever", but now I'm not so sure since Ely cites a floor speech supporting the 14th Amendment that implies the 4th Amendment was interpreted differently in the mid-1800s.)
This looks like it agrees with my point: the warrant process is the objective mechanism by which the subjective reasonable/unreasonable decision is carried out. This says nothing about the permissibility of searches where the warrant process is skipped.
Of course, one can choose to assume there exists some unwritten permission for searches other than via the warrant process, but then we're no longer discussing the rule of law.
No, the warrant process is an objective mechanism by which the subjective decision is carried out. You have no textual grounds for saying it's the exclusive method, and there's no precedential support for it either. If we were to posit it as the only reasonable mechanism, then a police officer who observed you stuffing a dead body into the trunk of your car would be powerless to delay you absent a warrant, which is clearly a ridiculous position.
The role of the warrant is to allow the police to barge/kick in your door on the basis of available information rather than having to stake you out in hopes that you'll expose your criminal activity to them, which would allow them to conduct a regular search. It's not a prerequisite to a search and never has been AFAIK.
But the search of the petitioner's automobile by a roving patrol, on a
California road that lies at all points at least 20 miles north of the
Mexican border,[5] was of a wholly different sort. In the absence of
probable cause or consent, that search violated the petitioner's
Fourth Amendment right to be free of "unreasonable searches and
seizures."* I agree with you that anyone who wants to avoid being effectively searched at a border can and there's little the government can ever do about it.
* I think most of the people carrying (say) child pornography into the country aren't too bright to begin with, so maybe that doesn't matter.
* I remember being very upset about the border search exception when I learned about it 10 years ago. It still bugs me.
* If the principal you're disagreeing with is that the state's interests in a secure border outweigh the individual's right to be free from casual, minimally invasive searches, you should know that you're disagreeing with something like 10+ SCOTUS opinions going back to at least the early '70s.
* If the principal you're disagreeing with is that the 4th Amendment allows judges to fill in the blanks on what "reasonable" means, and that "reasonable" overrides "warrant", know that you're disagreeing with something like 175 years of jurisprudence.
* I definitely agree that electronic searches are nonminimal and highly invasive.
"At an Amtrak inspection point, Pascal Abidor showed his U.S. passport to a federal agent. He was ordered to move to the cafe car, where they removed his laptop from his luggage and “ordered Mr. Abidor to enter his password,” according to the lawsuit.
Agents asked him about pictures they found on his laptop, which included Hamas and Hezbollah rallies. He explained that he was earning a doctoral degree at a Canadian university on the topic of the modern history of Shiites in Lebanon.
He was handcuffed and then jailed for three hours while the authorities looked through his computer while numerous agents questioned him, according to the suit, which is pending in New York federal court."
Just because you wouldn't store anything incriminating/contraband doesn't mean that nobody else will. Quite a few searches of laptops and digital cameras have led to discovery of child pron, sob obviously not everyone shares your understanding of data security.