Will Baude

Right.

And if the exigency is taking place of the warrant, then you should need probable cause of the exigency, just like you need probable cause of the warrant.

Exactly.

Nobody says that.

And I don't even think I remembered from reading Justice Kagan's opinion that the words probable cause were in the Constitution rather than a thing she made up or the court made up.

So because she even says like a probable cause is a term about criminal investigations.

And I don't think that that's right.

It's a term about warrants in the Constitution.

And the reason the probable cause would apply here is not because this involves an arrest.

It's because this involves an entry into private property, which was just as much of a civil.

Yeah.

Right.

And so at the founding, I would have thought, like, they try to come in.

You're like, where's your warrant?

The Constitution says you have a probable cause to get a warrant.

And they're like, oh, we didn't get a warrant.

And you're like, why?

Like, oh, we don't need a warrant.

And they're like, well, where's your probable cause to show you don't need a warrant?

And now apparently, I mean, now maybe a probable cause means the same thing as objectively a reasonable basis for believing.