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.

24 Comments

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24 responses to “More on Alito and the strip search case

  1. Revenant

    I have long believed that the Fourth Amendment is far better enforced through police liability than evidence suppression.

    That is almost certainly true — dealing with it via evidence suppression means that questionable searches are, at worst, a break-even proposition for the police. But I think we need tort reform before we can shift the focus to police liability. Otherwise it would be too easy to derail legitimate investigations with questionable lawsuits.

  2. Joan

    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 would edit this sentence to read: In other words, “all occupants” referred not only to McGinley’s wife and 10-year-old daughter, but also to drug buyers who might be on the premises, since there are two issues at hand, both mentioned in the warrant/affadavit: the secretion of drugs on not-named persons, and the possibility of the presence of drug-buyers. I don’t understand your reasoning that the possible presence of drug-buyers, and the necessity of searching them also, negates the necessity for searching other occupants of the house. Do you really believe that if there were both drug-buyers and the wife & daughter present, that the drug dealer wouldn’t or couldn’t give drugs to his wife and/or daughter to conceal? I don’t.

  3. Cathy Young

    Joan:

    If the police had wanted permission to search McGinley’s wife and 10-year-old daughter, they could have specifically named them in the affidavit, since they were known residents of the house. (And oh yeah… I’d love to see the judge who’d green-light a strip-search of a 10-year-old.)

    The affidavit quite explicitly states that the request for permission to search “all occupants” is based on the knowledge that the house is frequented by drug buyers.

    And by the way, while I have strong reservations about drug legalization, I will say that if the War on Drugs taken us to such depths of depravity as to justify the strip search of a 10-year-old child, then it’s definitely time to call the whole thing off.

  4. Cathy Young

    Btw, rev, agreed on tort reform.

  5. John A

    Nitpick a bit more: the affadavit says occupants. If customers had been present, they could not be searched since they would be visitors, not occupants. Ask any clerk at your local DMV to define the difference.

    ———–

    No, I am not advocating letting police or other government agents interpret or bypass the law at whim (albeit perhaps at will, same as a prosecutor). I’ve had a problem with one officer who had the outlook that anyone not wearing a uniform must automatically be a bad guy and guilty of something so “anything goes”, but I’ve also dealt with a number of officers who managed not to fall into this trap.

    About a year ago, there was a case in which a man on probation gave the gun he was holding to officers responding to a robbery. He was on his way back to jail for illegally possesing a firearm, breaking parole – until “the rest of the story” story appeared in the newspaper a few days later. Seems he had taken it from the robber, whom he held until the police arrived. Legally, no difference – but the day after the paper printed it, the DA dropped the charge. Should he have? Willfully ignoring the law? Or should it have gone to court? What would a judge have ruled?

  6. Darleen

    Cathy

    that abuses of police power are nothing to worry about if they’re directed at bad people

    May I ask what abuse of power was going on in this instance? From what I’ve read, the police had every reason to believe they had secured permission to search all persons on the premises.

    BTW, if both parents had been arrested and the minor was taken into CPS custody, do you think the minor would NOT have been patted down by them? (can we stop with the loaded “strip search” term? It has some very specific elements that were NOT part of what happened to the female and her daughter)

    I admit my POV comes from working in a DA office and wading through thousands of police reports. We DO reject lots of cases for filing, some of that due to improper searches. But a true “abuse of authority” is a fairly rare thing and we’ve actually prosecuted such abusers)

    And let’s also dispense with the myth of somekind of honor among thieves where it concerns their children. Children are used to hide and/or transport drugs. Children are used as props for theft and children are trained by their “parents” to commit crime for them. Children are victimized by their “parents” long before the cops ever arrive on scene.

  7. Joan

    Thanks, Darleen, for articulating my own feelings much better than I managed to do.

    This was not a case of the police running rough-shod over these people and then, after the fact, trying to recast the warrant and affadavit to cover their actions. Cathy, do you really believe that the police acted in bad faith, that they knew they were doing something outside the scope of the warrant but they went ahead anyway? Wouldn’t such a scenario be unlikely to involve bringing in a female officer to perform the illegal searches? Don’t cops who are knowingly breaking the law try to hide that fact just as much as any other criminal? The fact that they called in the female officer speaks to the fact that the other officers at least thought they were going by the book.

    I think portraying the actions of these officers as an abuse of power is really a stretch.

  8. Anonymous

    Let us not lose track of the specific legal issue at play here: Whether the officers in this incident were entitled to qualified immunity. That seems to get lost in the hype about the case. In addition to Alito’s pretty convincing legal citations, I googled a couple of internet sites discussing qualified immunity generally:

    http://www.lectlaw.com/def2/q063.htm

    Even where a constitutional violation has occurred, an officer will be immune from suit if he or she “could have reasonably believed that his particular conduct was lawful.” Romero, 931 F.2d at 627.

    http://www.robertslaw.org/qualifie.htm

    Thus, the doctrine of qualified immunity extends to law enforcement officers a margin of error “when they navigate uncharted areas at the margins of constitutional criminal law.” Tarantino v. Baker, 825 F.2d 772, 774 (4th Cir. 1987).8 This is because “. . . there are two levels on which the immunity shield operates. First, the particular right must be clearly established in the law. Second, the manner in which the right applies to the actions of the official must also be apparent.” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992), cert. denied, 506 U.S. 1080, 113 S. Ct. 1048, 122 L. Ed. 2d 356 (1993). Therefore, “officials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.” Id.

    The officers specifically stated what they wished permission to do in their affidavit, included it along with the warrant, referenced it in the warrant, got back a signed warrant from the judge with no exclusions. That seems to pass a reasonableness test with flying colors.

    How this can be an example of a “dangerous” justice is beyond me.

  9. William R. Barker

    Cathy… “all” meant “all.” It really is that simple.

    I’m with Joan; I don’t get your logic either. If I understand your position, you’re saying that the term “all occupants” referred to all occupants EXCEPT those who actually reside in the household. That makes no sense – at least not to me.

    To your contention: “If the police had wanted permission to search McGinley’s wife and 10-year-old daughter, they could have specifically named them in the affidavit,” I would reply: If the judge hadn’t meant to the search warrant to include McGinley’s wife and child he would have spelled that out in plain english. Again… the word “all” must be assumed to carry its usual clear meaning unless otherwise actively modified to exclude some of those “all.” (*SMILE*)

    I also have to say that I find your use of the term “strip search of a 10 year old child” in your reply to Joan troubling when you yourself posted Tucker’s point that no strip search actually took place and apparently you believe him since you didn’t contradict him. Why would you knowingly reiterate false information in your reply to Joan???

    Finally… I agree with Anonymous… let’s not lose sight of the specific legal issue at play here: Whether the officers in this incident were entitled to qualified immunity.

  10. Rainsborough

    I think that Ms. Young’s critics are begging the question. They say “‘all occupants’ means ‘all occupants,’” end of story. But as I read the post, the phrase “all occupants” does not appear in the warrant, the document authorizing and describing the limits of the search. It appears only in the accompanying affidavit.
    Hence critics must address the question whether the affidavit is to be treated as part of the warrant. Young does address the issue, so her contention that a search of everyone present was not authorized stands not only unrefuted but unaddressed.
    And may I say that it should be less remarkable than it is that a libertarian stands up for liberty.

  11. Cathy Young

    Re the term “strip search”: the mother and child were patted down while they were in their underwear. They were forced to lift their shirts and drop their pants.

    Joan:

    Cathy, do you really believe that the police acted in bad faith, that they knew they were doing something outside the scope of the warrant but they went ahead anyway? Wouldn’t such a scenario be unlikely to involve bringing in a female officer to perform the illegal searches? Don’t cops who are knowingly breaking the law try to hide that fact just as much as any other criminal? The fact that they called in the female officer speaks to the fact that the other officers at least thought they were going by the book.

    From the affidavit, it’s pretty clear that the officers were hoping to find customers in the house (including perhaps female customers).

    Is it possible that when they found neither customers nor drugs in the house (all that was found was “traces of metamphetamines”), they got p*ssed off and decided to search the man’s wife and child?

    Again, if the wife and child had been intended targets of the search, they could have been explicitly named in the affidavit, since their names were known to the police.

    If you read the full account of what happened during the search, the police apprehended McGinley while he was on his way home. He was already being escorted by the police when he got into the house. When could he have possibly hidden drugs on his daughter? There was simply no legitimate reason for searching the child, or the wife unless it was assumed that the wife was an accomplice in the drug dealing (in which case she should have been named in the warrant as well).

  12. Anonymous

    Rainsborough wrote:

    Hence critics must address the question whether the affidavit is to be treated as part of the warrant.

    From Alito’s disssent:

    First, there is no doubt that the search warrant application sought permission to search all occupants of the premises. Indeed, the affidavit made this request in three separate paragraphs.

    The warrant indisputably incorporated the affidavit with respect to the issue of probable cause, and the magistrate signed the warrant without alteration. The only reasonable inference is that the magistrate agreed with the affidavit that there was probable cause to search all occupants of the premises and that the magistrate intended to authorize such a search. 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.

    Even if one were to take the position that the warrant did not technically suffice for the searches performed, that doesn’t undercut Alito’s position on qualified immunity. One has to go beyond that, and decide whether the officers reasonably thought it did. Cathy’s logic about them being p*ssed off doesn’t seem to fit the facts agreed upon. How did the police know they were going to be p*ssed off when they prepared the affidavit and warrant, and asserted 3 times that they were seeking permission to search “all occupants”, or when they arranged for a meter maid to accompany them?

    Cathy’s solution that the police should have listed Mom’s and daughther’s name seems to miss the point at issue here. The police didn’t know who would be there. That they listed a specific name on the warrant is what seems to have gotten them in trouble. The more they listed, the stronger the argument would be that they only meant to include these folks, and not others. yet the police had no way to know who they would meet up with there when they sought the warrant. That’s why they clearly laid out the case to the Judge about probable cause to search “all occupants”.

  13. Cathy Young

    anonymous: they could have named McGinley himself, the wife, the daughter, and any visitors who might be in the house. Would the judge have knowingly OK’d the body search of a 10-year-old?

    You’re also ignoring the fact that the judge did not sign the affidavit, only the warrant. Some parts of the warrant were explicitly incorporated into the affidavit but this one was not.

    Furthermore, the majority ruling noted that Pennsylvania law generally takes a dim view of “all occupants” searches. So we really don’t know whether the judge meant to approve an “all occupants” search or not.

  14. John Howard

    So your position is that you feel you should be able to buy drugs from your dealer without having to worry about being searched yourself? Or is it that if you happened to be there visiting but didn’t know anything about his being a drug dealer, you wouldn’t want the cops to find your little bag of weed, which you smoke very responsibly? I think I know where you are coming from, it is really a drag when the cops find your stash and treat you like a criminal for having a little tiny bud.

    Or is your issue that you woudn’t want to have to be searched? Do you not let the doctor see you in your underwear? Even 10 year old girls have to submit to physical examinations pretty regularly, so let’s not make this more traumatic than it is.

  15. William R. Barker

    Not being a lawyer I’m a bit confused about how an affidavit “relates” to a warrant and beyond that how an “incorporated” affidavit differs from an “unincorporated” affidavit. This seems to be at the heart of the decision in Doe v. Groody and without understanding the technical differences it’s gonna be hard for laymen to debate the issue. (And OBVIOUSLY the issue is debateable since it was a split decision and fully 33.3% (*GRIN*) of the learned federal Appeals Court judges who heard the case disagreed with the majority decision!)

    Anyway… “24″ starts in five minutes here on the East Coast. I’ll check in later tonight or tomorrow.

    I suggest that all of us who are interested in the case actually read the case. Then we can differ from positions of strength.

    P.S. – Cath… thanks for clearing up the term “strip search.”

  16. Cathy Young

    John — I hope the “you” in your question was a generic “you” and was not addressed to me personally, as in implying that I smoke weed. Which I don’t.

    However, if I was visiting a friend and the cops barged in and stripped me to my undies because they suspected he was selling metamphetamines, you bet your bippy I would sue the pants off of them.

    If you don’t see the difference between stripping before a doctor and being forcibly stripped by cops, I guess I really can’t explain it to you.

    Heck, maybe the cops should be able to do a body cavity search as well — after all, most of us have probably been to a gynecologist and/or a proctologist at some point in our lives!

  17. Revenant

    I dunno — the available evidence seems to indicate that the police thought the warrant authorized searching everyone there, and the warrant/affidavit issue seems confused enough that I can’t blame them for thinking it. There does seem to be grounds for a suit, but I think I’d find for the police if I was on the jury.

    Searching the 10-year-old may have been over the line. But I have a hard time giving a shit about the mother — anyone who thinks a violent drug user (and possible dealer) is someone her kid should be around could use a little humiliation. I certainly can’t see giving those two dolts a few million bucks, unless the money’s going to be spent hiring better parents for their daughter.

  18. Cathy Young

    Rev, granting your point, arguendo, I don’t know if we know enough about McGinley to make a blanket judgment (the ruling mentions nothing about his record).

  19. Revenant

    I don’t know if we know enough about McGinley to make a blanket judgment (the ruling mentions nothing about his record).

    I’ve seen multiple news articles refer to him as “a disbarred lawyer with drug and assault arrests” or something along those lines. Plus, of course, he was convicted of possession, in the case in question, after they found pot and traces of meth in the house.

  20. John Howard

    You’d be the first Libertarian I know that isn’t a Libertarian because they smoke weed. I think this might be one of those “definition of is” things, but whatever.

    However, if I was visiting a friend and the cops barged in and stripped me to my undies because they suspected he was selling metamphetamines, you bet your bippy I would sue the pants off of them.

    So you wouldn’t care if the warrant had said that all occupants were to be searched, you would sue either way? Should they have to know everyone that might be there and get a warrant to search each person?

    I’m not in favor of allowing unreasonable searches, I appreciate that we can refuse warrantless searches. I was pulled over driving through Oklahoma because I had Massachusetts plates, and at first I consented to let the guy search my car, but man, he started going through the pockets of all my clothes in the backseat and it was taking a long time! When he got to my trunk, I stepped forward and told him I didn’t want him to search the huge long black duffle bag that contained all my clothes but was hilariously suspicious looking. He just looked at it wistfully and said “you sure I can’t search that?” When I realized all I had to do was say “yeah, you can’t search that”, it made my day, he kept looking at the bag and looked like he was about to cry, then let me go. That poor cop is still probably wondering what sort of drugs and guns were in there.

  21. William R. Barker

    + Excerpts from Doe v. Groody with * observations to follow:

    + Four police officers appeal from the denial of qualified immunity in a lawsuit alleging the unlawful search of occupants of a residence in Schuylkill County, Pennsylvania. The officers argue that they did not violate clearly established federal constitutional rights when they searched a mother and her ten year old daughter in the course of executing a search warrant for narcotics at their home.

    * First observation: If the constititutional rights in question were so damned clear… how come Alito didn’t see them? (*SMILE*) Seriously… if you troll the web for informed legal opinions concerning this case, you’ll find most scholars and practicing attorney’s see “reason” in both the majority decision and Alito’s dissent. I don’t know what level of near-unanimity is the “approved” gold standard for “clearly established,” but as far as I’m concerned, it seems to me that when a fair number of federal judges would have operated under the same assumptions as the police did, well, then it’s hard to see how it can be claimed that the police officers in question were violating “clearly established” constitutional rights.

    + We hold it to be clearly established that unless a search warrant specifically incorporates an affidavit, the scope of the warrant may not be broadened by language in that affidavit.

    * Ooo…K…aaay. Then what’s the point of the affidavit? Warrants are based on affidavits, aren’t they? An affidavit is the “context” behind the warrant… isn’t it?

    + We also conclude that, under any reasonable reading, the warrant in this case did not authorize the search of the mother and daughter, and that the search was not otherwise justified.

    * Hmm… I guess I’ll have to wait till I get to the warrant itself to comment. (Also… again… if the warrant isn’t supposed to be construed within the context of the affidavit… then what’s all this talk of “reasonable reading?”

    + The constitutional violation at issue here arises under Jane and Mary Doe’s Fourth (and Fourteenth) Amendment rights to be free of unreasonable searches and seizures.

    * Hmm… there’s that pesky word… “reasonable.” There’s a difference between “wrong” and “unreasonable,” isn’t there? Even if two out of three federal appeals court judges decided the officer’s actions were “wrong,” it seems to me that’s there’s no demonstration that the actions were “unreasonable.” The very fact that the decision of the JUDGES wasn’t unanimous seems to indicate by its very nature that “reasonableness” isn’t cut and dry.

    + The face of the search warrant here, however, does not grant authority to search either Jane or Mary Doe. The block designated for a description of the person or place to be searched specifically names John Doe, and identifies and describes his residence. Nothing in that portion of the printed warrant refers to any other individual, named or unnamed, to be searched.

    * Fair enough. Strict construction… fair enough.

    + Seeking to remedy this omission, the officers argue that the warrant should be read in light of the accompanying affidavit which requested permission to search “all occupants” of the residence. They conclude that the warrant should be read in “common sense” fashion, as supplemented by the affidavit. If that contention is correct, then police had legal authority to search anybody that they encountered inside the house when they came to execute the warrant.

    * Once again… fair enough. Sounds “reasonable” to me.

    + In this case, there is no language in the warrant that suggests that the premises or people to be searched include Jane Doe, Mary Doe, “all occupants” or anybody else, save John Doe himself. Other portions of the face sheet which describe the date of the violation and the supporting probable cause do refer to the attached typed affidavit. But this fact is actually unhelpful to the officers, since it demonstrates that where the face sheet was intended to incorporate the affidavit, it said so explicitly. As a matter of common sense, as well as logic, the absence of a reference to the affidavit must therefore be viewed as negating any incorporation of that affidavit.

    * O.K., I see where they’re coming from.

    * One point: I’m halfway through reading the case and so far I’ve yet to come upon any indication that the Appeals Court asked the origional magistrate who issued the warrant under question what his (her?) intention was with regard to the scope of the warrant. I’d like to know – regardless of what the warrant said as compared to the unincorporated affadavit – whether the magistrate gave the cops the impression that they could detain and search anyone besides Doe found on the premises. The answer to this question goes right to the heart of the “reasonableness” question.

    * Ultimately… *my* layman’s definition of common sense and “reasonableness” would be that if you have a search warrant for a certain premises, then it’s only logical that you can search everyone who happened to be within the boundaries of the premises. That said, I understand and accept that *my* notion of common sense and “reasonableness” may not be the same as the law’s notion case by case. In fact, from what I’ve read, that is indeed the case – search warrants on premises don’t usually include individuals found within the premises. Kind of nutty if you ask me.

    + [T]here is no reasonable basis for an officer to exceed the scope of a warrant just because he asked for broader search authority in the affidavit. In the latter instance, the officer has not relied on, but has disregarded, the magistrate’s judgment.

    * And I follow the logic here. (But I’d still like to hear it direct from the magistrate what he – or she – intended.)

    + Now… on to Alito’s dissent:

    + I would reverse the order of the District Court and direct that summary judgment be entered in favor of the defendants. First, the best reading of the warrant is that it authorized the search of any persons found on the premises. Second, even if the warrant did not contain such authorization, a reasonable police officer could certainly have read the warrant as doing so, and therefore the appellants are entitled to qualified immunity.

    * O.K. Sounds reasonable.

    + Search warrants are “normally drafted by nonlawyers in the midst and haste of a criminal investigation.” United States v. Ventresca, 380 U.S. 102, 108 (1965). Consequently, they are to be read “in a commonsense and realistic fashion.” Id. Here, the “commonsense and realistic” reading is that the issuing magistrate intended to authorize a search of all the occupants of the premises and that the warrant did so. Five points are important to keep in mind. First, there is no doubt that the search warrant application sought permission to search all occupants of the premises. Indeed, the affidavit made this request in three separate paragraphs.

    * So… we’re back to what the magistrate had in mind and we’re back to the question of whether or not the cops should have “interpreted” the warrant in light of the affidavit or not.

    * Damn… wouldn’t it have made everything a heck of a lot clearer if the magistrate had simply written on the WARRANT words to the effect of… “I’ve read the affadavit. I know what the cops are asking – they’re asking for permission to search the premises, search Mr. Doe, and search any and all individuals found on the premises. I’m limiting this warrant to the premises and Mr. Doe.” signed… the magistrate. (*SMILE*)

    + Second, the affidavit also clearly attempted to establish probable cause to search all occupants of the premises. The two affiants, who had background and training in drug cases, stated that, in their experience, drug dealers, when faced with “impending apprehension,” often give evidence to other persons present on the premises in the hope that “said persons will not be subject to search when police arrive” and that this will “prevent the discovery of said items.” Third, the warrant as drafted was intended to authorize a search of all persons on the premises. The warrant was drafted by the officers who applied for the warrant and was typed by one of those officers. Since the officers were seeking permission to search all occupants of the premises, they obviously intended for the draft warrant that they submitted to the magistrate to authorize the search of such persons. Fourth, the warrant expressly incorporated the affidavit with respect to the issue that was most critical to the request to search all occupants, viz., the issue of probable cause. While probable cause to search premises does not necessarily provide probable cause to search every person who is found on the premises, if there is probable cause to believe that all of the persons found on the premises possess on their persons either contraband or evidence of a crime, there is no reason why a warrant authorizing a search of all such persons should not be issued. In this case, as noted, the affidavit submitted in support of the warrant application claimed that there was probable cause to search all such persons, and the warrant expressly incorporated that claim. Fifth, 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.

    + Under these circumstances, the “commonsense and realistic” reading of the warrant is that it authorized a search of all occupants of the premises. It seems quite clear that the magistrate intended to authorize a search of all occupants of the premises. As noted, the application repeatedly requested such authorization and set out facts that the officers (and presumably the District Attorney’s office) regarded as establishing probable cause. The warrant indisputably incorporated the affidavit with respect to the issue of probable cause, and the magistrate signed the warrant without alteration. The only reasonable inference is that the magistrate agreed with the affidavit that there was probable cause to search all occupants of the premises and that the magistrate intended to authorize such a search. 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.

    * Again… instead of each judge “assuming the intent of the magistrate, wouldn’t it make sense to simple ASK the magistrate his/her intention? But bottom line… REGARDLESS of the magistrate’s “intent,” doesn’t the fact that even federal judges can’t agree on what it was for certain after reading all the documentation show cause to believe that the cop’s guess concerning the magistrate’s intent was just as “reasonable” and thus protected? That’s what I come away from reading the decision and dissent with!

    + [B]oth of the officers who signed the affidavit explained why they did not note in the box in question that the warrant authorized a search of all occupants of the premises. They stated that there simply was not room in that box and that the incorporation of the affidavit into the warrant (which was noted in the box entitled “PROBABLE CAUSE BELIEF IS BASED ON THE FOLLOWING FACTS AND CIRCUMSTANCES”) was meant to provide a full description of the persons to be searched.

    + Even if the warrant did not confer such authorization, a reasonable officer certainly could have believed that it did, and therefore the defendants’ motion for summary judgment based on qualified immunity should have been granted.

    * I agree with Judge (soon to be Justice) Alito.

  22. William R. Barker

    Glad to hear you don’t smoke weed, Cath. That stuff’s bad for you! (*GRIN*)

    Here’s the bottom line: Unless you believe that Judge Alito’s dissent as well as my comments and as well as everyone else’s comments supporting Alito’s reasoning are just plain crazy… nuts… totally 110% unreasonable… you pretty much have to agree that the majority ruled INCORRECTLY in refusing to grant the officers unqualified immunity.

    Here… let me help you out by correcting MYSELF from my first post:

    “All” did NOT clearly mean “all.” I was wrong when I wrote that. I wrote that prior to actually reading the opinion and after reading the opinion I clearly understand where both sides are coming from.

    Now it’s your turn, Cath. A reasonable person MUST give the cops the benefit of the doubt on their understanding of the warrant’s terms. It doesn’t matter if the cops were wrong… what matters from the standpoint of the case itself (dealing with the issue of qualified immunity) is that we have absolutely NO evidence real or circumstancial that points to the cops deliberately trying to pull a fast one, circumvent the law, or otherwise purposefully act in such a fashion as to go against the magistrate’s CLEAR intent.

    Cath… the magistrate’s intent WASN’T perfectly clear. The cops would have been acting reasonably if they had ignored the affadavit’s terms… but they were also acting reasonably by NOT ignoring the affadavit’s terms.

    Do you watch baseball? A tie goes to the runner. Or how about this one… innocent until proven guilty? I read absolutely NOTHING in the Dow v. Groody case that “proves” to me that the officers acted without good faith. Therefore… the cops should have been granted qualified immunity. Therefore… Alito was right and his two colleagues were wrong.

  23. Anonymous

    Thanks for the explanation. From reading the New York Times stories you might believe that Alito himself strip-searched the little girl.

    Instead, Alito clearly backs extended police powers in drug searches. In the case of the dirtbag involved, I would probably have agreed with the search of the females by a female officer. As you say, it wasn’t even a real strip search.

  24. William R. Barker

    And today… on a party line vote… Alito’s nomination was sent to the full Senate.

    And also today… prior to casting their votes… several of the Democratic Senators continued to purposefully distort and misrepresent Doe v. Groody and Alito’s ruling on that case while “justifying” their nay votes.

    Connecting this thread to others on media bias, let me just say that if I had the money and logistical support to survey Americans on their knowledge of Alito’s so-called “support for strip searching a 10-year-old girl and her mother,” I’d bet dollars to donuts that those “familiar” with the case would OVERWHELMINGLY be UNFAMILIAR with the fact that the decision revolved around the issue of qualified immunity rather than “strip searching” and the vast majority would also be unaware of the whole “affidavit incorporated or not incorporated into the warrant” business.

    Would anyone seriously bet against my assumptions here? Assuming you wouldn’t, there’s your answer to the question of why MSM bias is harmful.

    P.S. – To Anonymous: You’re welcome.

    P.P.S. – Cath… did my analysis change your position one iota? (*SMILE*) Or.. do you STILL believe that Alito was wrong to rule that the officers could have REASONABLY believed they had the authority to search others besides Mr. Doe?

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