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More On Strip-Search Sammy

[ 1 ] November 1, 2005 |

Doe v. Grody–the case in which Alito dissent from a ruling that an unauthorized strip-search of a 10-year old girl was unconstitutional–is yet another forum for the Alito Kabuki dance in which conservatives who approve of Alito’s very conservative jurisprudence turn around and claim that the cases that provide evidence for said jurisprudence don’t really mean what they seem to mean. But, in fact, Alito’s claims that the warrant “authorized the search of any persons found on the premises” and that “even if the warrant did not contain such authorization, a reasonable police officer could certainly have read the warrant as doing so” are transparently wrong, and if applied consistently would represent an exceptionally narrow reading of the Fourth Amendment. iocaste explains in more detail:

The cops then filled out a warrant form for the judge’s signature. The warrant — which is really the operative document — was a pre-printed form with spaces to fill in various details. Now, a lot of the time — most of the time, in fact — the boxes on the warrant form will just be filled out to say that it incorporates everything in the affidavit by reference.

That’s not what happened here. Here, in the space titled “Places and Things to be Searched,” the cops specified only the drug dealer and the house — not the occupants.

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The two judges in the majority…had no trouble concluding that the search was illegal. Though warrants often incorporate the full affidavit by reference, in this case, that did not occur. The warrant specified the things (and people) to be searched, and said nothing about searching anyone other than the targeted drug dealer. It might well be true, said the court, that drug dealers often stash contraband on relatives who live in the same house, and the cops might have had a good reason for searching the wife and daughter. It might well be true that the cops had intended the warrant to authorize a search of all occupants. But that’s not what the judge saw. The judge saw an application to search only one person, and a house — this is what was authorized, this is clear from the face of the warrant. Case closed.

Not so for Judge Alito. Although the warrant specifically had a box for “things to be searched,” and occupants of the house were not included in the box, Judge Alito saw this as a mere “technicality.” The cops had testified that they hadn’t included a more full description in the box for “things to be searched” because there hadn’t been enough room. They testified that they had intended that the warrant cover everything included in the accompanying affidavit. Thus, said Judge Alito, we should give a more flexible interpretation of the warrant.

Except that even if you accept the cops’ word on it, that’s really not the point. Cops don’t get to decide the scope of a warrant; that’s what judges do. Here, a judge was confronted with a warrant that specifically identified the things to be searched, and that’s what the judge authorized. If the cops wanted to search more stuff, and the space on the warrant wasn’t big enough, they could have incorporated the affidavit by reference (as most warrants do), or they could have attached a separate sheet of paper. Instead, the magistrate was confronted with a piece of paper that was quite specific about the things to be searched, and the wife and daughter were not included.

And this is where we get to the critical part of Judge Alito’s analysis. He conceded that the critical issue is what the judge authorized, not what the cops intended. So Judge Alito made inferences about what the magistrate “must have” been thinking: “The magistrate must have understood that the officers, who had drafted the warrant, believed that the warrant, if signed, would give them authorization to carry out a search of the scope specified in the application, viz., a search of ‘all occupants.’ As a result, the magistrate surely would not have signed the warrant without modification if the magistrate had not wished to confer that authority.”

The magistrate “must have understood” this? When confronted with a paper filled out by the cops that specifies only the drug dealer and his house as the specific things to be searched? And it was the magistrate’s responsibility to both intuit that the cops intended something broader and to correct them if the magistrate wanted to narrow the scope of the search to the things specified in the warrant?

Alito’s dissent really is a remarkable piece of work. According to Alito, a search that goes beyond the clear scope of the warrant without exigent circumstances is constitutional, as long as a judge can think up some ex post facto rationale and attribute it without evidence to the judge who issued the warrant. If we are to take this seriously, then the Fourth Amendment’s requirement that warrants have information “particularly describing the place to be searched, and the persons or things to be seized” might as well be removed from the Constitution altogether. The police could have asked for authorization for a strip-search, or they could have asked for a broader warrant. They didn’t do that, and consequently their search was illegal. Alito’s straining to uphold the constitutionality of the search (and to immunize the officers who performed it) provides valuable information about how he’s likely to interpret the Fourth Amendment, and other civil liberties, if he is confirmed.

Lindsay has more:

The law makes a sharp distinction between an affidavit supporting a warrant and the warrant itself. The affidavit is the cops’ wishlist. It’s their chance to make the best possible case for whatever they want to do. It’s the magistrate’s job to decide if the affidavit justifies the measures specified in the warrant. The cops didn’t ask for permission to search the mother and daughter. It doesn’t matter whether the information in the affidavit would have justified a broader search because the cops didn’t ask for one. You go on meth raids with the warrant you have, not the warrant you wish you had.

A warrant applies to the persons or things particularly described in that warrant. One acceptable way to specify those targets is to reference the affidavit, however that referencing must be explicit. The cops argued that the magistrate referenced the entire affidavit by signing the warrant. The court found it implausible that the magistrate would have endorsed the entire affidavit by signing the warrant because the warrant form referenced some passages in the affidavit and not others.

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Alito’s dissent in this case was very troubling, not because he has any special fondness for strip-searching little girls, but because he believes that the police should have vast creative license to interpret search warrants.

Exactly right. And remember: police officers, no less than judges, are state actors bound by the Constitution. It’s their job to follow the requirements of the 4th Amendment.

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  1. [...] we’ve heard the last, this term, from Strip Search Sammy Alito. Maybe he’ll behave today. By being silent. Maybe freshman Elena Kagan will leave her sweet [...]

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