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November 01, 2005

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.

Update: See also Scott Lemieux and iocaste for more analysis.


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Excellent find. Lest anyone accuse the author of the majority opinion of being to the left of the ACLU, we should note that he is the current Secretary of Homeland Security.

"not because he has any special fondness for strip-searching little girls"

not "necessarily" because he has such a fondness. Or perhaps "to our knowledge" or "that we have adequate evidence to demonstrate conclusively."

We shouldn't make unfair assumptions based on a lack of knowledge.

It was a ridiculous decision, with laughable reasoning.

Its funny how he allows for creative readings of some things, like search warrants, and not others, like the interstate commerce clause.

His record on civil rights cases indicates that he's really big expanding the power of authoritarian institutions like the police and big companies, but not so much into the power of democratic institutions like congress.

Police power = unlimited

Power of the executive to suspend the Constitution without judicial review = ??, but I'm guessing unlimited

Right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures = hella-limited

Civil rights plaintiffs = if you have to ask, I don't even know what you're doing here.

Strip Search Sammy ... I know it sounds rather grimy, but that's what I was going for. Hopefully it will stick. Thanks for the shout out.

Oh, blah. You're too damn fast, Lindsay. I was putting together an analysis of the Think Progress talking points, and you beat me to the punch on this one, with an analysis almost exactly matching my own.

There is one additional point you didn't touch on, however: the decision was really not about whether or not the actions were authorized, as to whether or not the police had reason to believe that they were (it was a decision on the validity of stripping qualified immunity from the officers involved, not just on the scope of search authorized by the warrant). My suspicion is that the police were doing a deliberate end-run around the judge, and knew that they didn't have blanket permission to search everyone (particularly since Pennsylvania law disfavors blanket warrants), but thought they could get away with claiming support under the affidavit. The majority decided from the evidence that "it would be clear to a reasonable officer that his conduct was unlawful", and Alito didn't -- and that's the only standard that applies. What this implies about Alito's general reasoning is not that police should have vast creative license to interpret warrants, but that any documents attached to and incorporated (even in part) by a warrant must be assumed entirely vetted and approved as part of the official warrant by any magistrate, even though only the warrant (and not the affidavit) is presented to citizens, and that officers should have reason to believe that any part of their requests in any attached document not explicity denied by a judge are allowed. This is quite a shift of burden from the traditional protection that anything not specifically authorized by a judge is proscribed.

But otherwise, yes, I agree entirely with your conclusion that his desire to expand police powers is incredibly troubling.

This comment on Judge Alito just arrived in my mailbox:

CSH Warns Alito May Erode Liberties

Council for Secular Humanism Urges Caution in Assessing the
Nomination of Judge Alito

The Council for Secular Humanism is the largest organization in
the world that defends the interests of non-religious people.
Here in the United States, we are dedicated to the separation of
church of state, to the preservation of equal rights for both
believers and non believers. Any government favoritism for
religion betrays this ideal. We are thus concerned about the
President's nomination of Judge Samuel Alito of the Third
Circuit Federal Court of Appeals to the United States Supreme

Judge Alito has ruled to uphold government-approved displays of
religious symbols on two occasions. Also, his was the only vote
15 years ago to uphold a state law provision that would allow a
husband to veto his wife's decision to have an abortion. The
United States Supreme Court rejected this provision as
unconstitutional in 1992.

We have every right to make sure that Judge Alito will not cast
votes eroding the precious liberties that have been law for 58
years. Whenever the question is one of the right of conscience
in reproductive or religion-related matters, it is the Council's
view that the constitution vests the individual and not any
branch of government with ultimate decision making authority.

We urge our nation and the United States Senate to undertake the
most thorough investigation of this nominee's positions before
placing him on the High Court, a position in which even one vote
can now make the difference between personal freedom or
state-imposed tyranny.

Paul Kurtz,
Founder and Chairman

David Koepsell,
Executive Director

Tom Flynn,
Editor, Free Inquiry

Edward Tabash,
Chair, First Amendment Task Force

Toni Van Pelt
Executive Director, CFI - Florida

Unfortunately, he's typical of what the Federalist Society and their ilk mean by "strict constructionists." Executive privilege and the national security state, and generally giving the President the prerogative of a Stuart monarch, apparently don't qualify as "legislating from the bench." "Limited government" refers only to Congress, you know.

Quite to the point. Thank you.

I just finished making a vary similar case, target =blank>here on my livejournal.

I think that (and the questions Scott Lemieux raises in his post on target =blank> Casey, as well as the history of his being overturned by the Supreme Court (the Renquist Court) shows a disturbing lack of judicial restraint, in fact a frightening level of avtivism.

His telling Congress they don't have the power to make laws like the Family Leave Act, because it's outside their scope seems to be a case of legislation from the bench as well.


Even more frightening is that the author of a transparently wishful argument like this is being held up as one of the right's great legal minds and a brilliant analyst. If this is what passes for eminent legal thinking, I've got a 9-year-old nephew ("you told me not to throw the ball in the house, so I hurled it instead") who would do just fine on the court.

Actually, it's pretty obvious what the reasoning here would be: wife and daughter are part of the husband's house and/or personal effects, and therefore just as subject to search as his sofa.

I can't see any other possible justification for Alito's expressed opinion.


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