Strip Search Sammy--the law behind the label
Why is Judge Sam Alito known in some circles as "Strip Search Sammy"? Well, it all goes back to 2003 and Alito's dissenting opinion in a case called Doe v. Groody. (.pdf)
Here's a very brief, non-technical synopsis. John Doe, an alleged meth dealer, tried to sue some Pennsylvania police officers for strip searching his wife and daughter without a warrant. Doe's lawsuit raised two questions: Did the search violate anyone's constitutional rights? And, if so, could Doe sue the police? The Court found that the police had violated the rights of the mother and daughter, and therefore that Doe had the right to sue. Alito lodged the lone dissent.
The strip searches occured during a raid on John Doe's home. The police had a warrant authorizing them to search John Doe and his property, but they didn't have a warrant to strip search the little girl or her mother. The affidavit attached to the warrant argued that it would be appropriate to search everyone on the premises, but the warrant itself listed only John Doe under "persons to be searched."
When asked why the warrant didn't name Jane and Mary Doe, the officers said that they'd run out of room on the form. They complained they couldn't possibly fit the names of all possible occupants into that one little box. Besides, they argued, the attached affidavit asserted that there was probable cause to search anyone who happened to be on the premises because drug dealers often stash contraband on non-drug dealers.
(If the police believed that they had probable cause to search all the occupants of a suspected meth den, why didn't they just write something as concise as "all occupants" in that little box?)
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.
Alito argued that the affidavit supplied probable cause to search the little girl and her mother, and therefore it didn't matter whether the warrant actually named them as persons to be searched. I would have expected a judge with Alito's respect for the letter of he law to pay more attention to what the warrant actually said.
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.