More on Alito and the strip search case

In The Weekly Standard, William Tucker addresses one of the cases most frequently mentioned in civil libertarian critiques of Judge Samuel Alito: Doe v. Groody, a 2004 Third Circuit case in which he wrote a dissenting opinion asserting that a police strip search of a 10-year-old girl whose father was a suspected drug dealer was not illegal.

In his article, titled "The Smear That Failed," Tucker summarizes the case thus:

The incident occurred in a small coal town in Schuylkill County in 1998. Police obtained a warrant to search the home of Michael McGinley, a disbarred lawyer with a history of drug and assault arrests who was believed to be dealing in amphetamines. When four officers arrived at his door, they found his wife and daughter present. Having specifically requested permission to search "all occupants" of the house, they summoned a female officer, who took the mother and daughter to an upstairs bedroom and performed a whole body search, including a pat-down while they were in their underwear. (It was not a "strip-search," as usually reported.) Nothing was found on the women, but police did turn up marijuana and traces of methamphetamine in the house. McGinley was convicted for drug possession and served a probationary sentence.

He also sued the police for several million dollars for allegedly violating his wife and daughter's constitutional rights, in a case that would become known as Doe v. Groody. ... In a preliminary hearing, the judge ruled that the officers must stand trial because their conduct violated "clearly established" constitutional rights of the plaintiffs. The officers appealed to the federal Third Circuit.

As presented to the three-judge panel, the case revolved around the following issue. In applying for the search warrant, the two officers had filled in a box entitled "specific description of premises and/or persons to be searched." The language is taken from the Fourth Amendment and officers must be very careful in filling it out. Warrants are routinely thrown out by appeals-court judges who decide that the application did not adequately describe "the place to be searched, and the persons or things to be seized."

By the time the officers had finished describing the suspect's premises and listing his name, address, physical description, and Social Security number, they had no room left to include any further information. "As you can see, that box is filled," testified one officer in court. "You can't include everything. . . . It's impossible to fit everything we want in these little boxes they give us."

In order to continue their application, the officers attached an affidavit in which they added a request to search "all occupants" of the house. Fulfilling the Fourth Amendment's requirement that "no warrants shall issue, but upon probable cause," they stated that, in their experience, drug dealers, when faced with "impending apprehension," often gave evidence to other persons present in the hope that "said persons will not be subject to search when police arrive." The judge signed the warrant and its accompanying affidavit.

The Third Circuit majority decided, however, that the warrant and its accompanying affidavit could not be read as a single document. ... Because they said different things, they must be considered contradictory. "[T]he language of the warrant is inconsistent with the language of the affidavit, because the former does not grant what the latter sought--permission to search 'all occupants' of the house. That is not a discrepancy as to form; it is a difference as to scope. And it is a difference of significance."

Tucker believes that this is a tortured, legalistic distinction, and that Alito was right to disagree:

Alito's dissenting opinion cut through this tortured logic with a few clear-cut observations. Citing a 1965 opinion that warrants are "normally drafted by nonlawyers in the midst and haste of a criminal investigation," and should be read "in a commonsense and realistic fashion," he listed the fundamentals of the case:

* The warrant application clearly sought permission to search all occupants of the premises;

* The two officers, both of whom had extensive experience in drug raids, made a clear case that suspects often try to hide evidence on other people present;

* The affidavit was expressly incorporated into the warrant;

* Both warrant and affidavit were reviewed by the district attorney's office and signed by the judge.

"Under these circumstances," Alito concluded, "the 'commonsense and realistic' reading of the warrant is that it authorized a search of all occupants of the premises. . . . [T]he majority employs a technical and legalistic method of interpretation that is the antithesis of the 'commonsense and realistic' approach that is appropriate." His reasoning had no impact.

Having read Tucker's article as well as the actual Third Circuit ruling in the case (in which, by the way, the majority opinion was written by that noted bleeding-heart liberal, Michael Chertoff), I have to say that I'm still inclined to agree with Alito's critics on this one. (Which does not mean that I'm against his confirmation -- more on that later -- but simply that I think the criticism on this issue is well-grounded.)

I don't think the distinction between the search warrant and the affidavit was merely technical. Incidentlly, the judge did not sign both forms; he signed only the search warrant, which named only "John Doe" (i.e. McGinley) as the person to be searched. Alito wrote in his dissent:

... after the warrant and affidavit were reviewed by the District Attorney's office and presented to a magistrate, the magistrate carefully reviewed these documents and signed the warrant without alteration.

Also, the majority had some pretty strong arguments for why they believed the affidavit was not automatically incorporated into the warrant. Chertoff, writing for the majority, noted that on other points, the warrant specifically stated mentions that it incorporated information contained in the affidavit -- but not on the issue of whose search was authorized by the warrant. The majority opinion also casts doubt on whether the judge intended to green-light the search of all the occupants of the house. In fact, after the passage quoted by Tucker ("And it is a difference of significance"), the opinion goes on to say:

A state magistrate reviewing a search warrant affidavit might well draw the line at including unnamed "all occupants" in the affidavit because Pennsylvania law disfavors "all occupant" warrants. See Commonwealth v. Gilliam, 522 Pa. 138, 560 A.2d 140, 142 (Pa. 1989). Thus, the circumstances of this warrant are a far cry from those in the category of warrants which can be "clarified" by a separate affidavit.

The extent to which Alito is willing to bend over backwards to justify the actions of the police can be seen in this passage from his dissent:

The majority's mistaken approach is further exemplified by its suggestion that the affidavit does not actually state that, in the experience of the affiants, drug dealers "often hide drugs on family members and young children." Maj. Op. at 11. The pertinent paragraph of the affidavit states: This application seeks permission to search all occupants of the residence and their belongings to prevent the removal, concealment, or destruction of any evidence requested in this warrant. It is the experience of your coaffiants that drug dealers often attempt to do so when faced with impending apprehension and may give such evidence to persons who do not actually reside or own/rent the premises. This is done to prevent the discovery of said items in hopes that said persons will not be subject to search when police arrive.

The commonsense reading of this paragraph is that, in the experience of the affiants, drug dealers, when they are about to be arrested, often give contraband or incriminating evidence to other persons who are on the premises ("occupants") in the hope that these persons will not be searched. The majority notes that this passage does not literally state that narcotics dealers often hide drugs on family members and young children," but this is precisely the sort of technical, legalistic reading that is out of place in interpreting a search warrant or supporting affidavit.

But Alito does not mention a highly relevant line from the same affidavit which explains why the police officers were asking for an "all occupants" search warrant:

The search should also include all occupants of the residence as the information developed shows that Doe has frequent visitors that purchase methamphetamine. These persons may be on the premises at the time of the execution of the search warrant and many attempt to conceal controlled substances on their persons.

In other words, "all occupants" referred not to McGinley's wife and 10-year-old daughter, but to drug buyers who might be on the premises.

I agree with Bill Tucker -- whom, by the way, I have known for many years -- that in some instances, nitpicking over properly dotted i's and crossed t's in search warrants has led to travesties of justice, such as physical evidence against a murderer being thrown out because the search warrant was written on a form that was intended for drug searches only. Tucker deals with this issue at some length in his 1985 book Vigilante: The Backlash Against Crime in America. But this case was not about the exclusionary rule, i.e. the suppression of improperly obtained evidence; it was about the civil liability of the police for conducting an improper search. (Incidentally, I have long believed that the Fourth Amendment is far better enforced through police liability than evidence suppression.)

I believe Alito should (and will) be confirmed. As a Washington Post editorial says, while criticizing Alito's record on some specific issues:

A Supreme Court nomination isn't a forum to refight a presidential election. The president's choice is due deference -- the same deference that Democratic senators would expect a Republican Senate to accord the well-qualified nominee of a Democratic president.

And Judge Alito is superbly qualified. His record on the bench is that of a thoughtful conservative, not a raging ideologue. He pays careful attention to the record and doesn't reach for the political outcomes he desires. His colleagues of all stripes speak highly of him. His integrity, notwithstanding efforts to smear him, remains unimpeached.

... It's fair to guess that Judge Alito will favor a judiciary that exercises restraint and does not substitute its judgment for that of the political branches in areas of their competence. That's not all bad. The Supreme Court sports a great range of ideological diversity but less disagreement about the scope of proper judicial power. The institutional self-discipline and modesty that both Judge Alito and Chief Justice Roberts profess could do the court good if taken seriously and applied apolitically.

Supreme Court confirmations have never been free of politics, but neither has their history generally been one of party-line votes or of ideology as the determinative factor. To go down that road is to believe that there exists a Democratic law and a Republican law -- which is repugnant to the ideal of the rule of law. However one reasonably defines the "mainstream" of contemporary jurisprudence, Judge Alito's work lies within it. While we harbor some anxiety about the direction he may push the court, we would be more alarmed at the long-term implications of denying him a seat. No president should be denied the prerogative of putting a person as qualified as Judge Alito on the Supreme Court.

However, supporting Alito for the Supreme Court does not preclude being critical of some of his views, particularly in the area of state power vs. individual rights.

Responding to Jonathan Turley at Powerline, Paul Mirengoff writes:

Alito may not be the judge you want to get if you found yourself in the company of drug dealers during a raid and want to sue the police for not making sufficiently fine distinctions about how you should have been treated. But he has written hundreds of opinions and voted in thousands of cases. If this is the best Turley can do to show that Alito's a threat to liberty, then Turley shouldn't be troubled.

Well, I don't know about the rest of Alito's record, but I, for one, am troubled by the tone of the first sentence of this paragraph. It reflects the attitude, unfortunately all too common among law-and-order conservatives, that abuses of police power are nothing to worry about if they're directed at bad people (like the ones who might find themselves in the company of drug dealers during a raid). But it's worth remembering that, given the well-known excesses of the War on Drugs, none of us -- not even affluent middle-class Republicans -- are safe from being closer than we'd like to a drug raid. And even self-interest aside, there is that small matter of the principle of limited government. Here's hoping that Alito will do a better job of upholding that principle on the Supreme Court than he did in Doe v. Groody.