"Strip Search Sammy"

I was so busy yesterday trying to deflate the hyperbole in ThinkProgress' talking points that I probably understated the genuine badness of Alito's dissent in Doe v. Groody. I noted at the time that, while I thought TP was exaggerating just how bad the decision was, I nevertheless agreed with the majority. I'll stand by that, but probably should've emphasized more that, hyperbole notwithstanding, Alito's willingness to play it fast and loose with the specific terms of a search warrant really is genuinely troubling. Majikthise makes the case.

Comments

[metalgrid]

Originalism for some laws and overly broad and activist intention based interpretations for others, mostly in deferring in any way possible to the executive. Can't say I'm surprised for a Bush nominee.

[Dave W.]

Kerry's nominee would have been worse?

[The Wine Commonsewer]

When is there ever any reason to strip search anybody? Particularly a minor. Has any judge actually ever issued a warrant to strip search someone?

[Brian]

What kind of freak gets to strip search the minors anyway? Reminds me of the dudes at the FBI whose job is to surf porn all day, the weirder the better.

[kwais]

How weird would that be to strip search a minor?

This is all the fault of the war on drugs. I guess my major objection to the judges ruling is because it is part of enforcing law the cops shouldn't be enforcing.

I guess I would not be as opposed to the strip search if the cops were looking for a serial murderer, or some real threat to people. The fact that they were enforcing a stupid law, and that arresting the guy, and finding all the evidence they could ever want on or of the strip searched minor would make absolutely not difference to society. Absolutely no difference to the amount of drugs on the street. The cops being as succesfull as they could ever hope to be, would still be protecting absolutely no one.

[quasibill]

Alito's opinion just demonstrates how corrosive the WoD has been to our Constitution. I have a hard time seeing people of the Founders' generation accepting a strip search of their daughter - it just wouldn't have ever been a necessary function.

And yet, because we now have created a vast class of contraband that is illegal per se, we must be subjected to strip searches because this contraband could be hidden anywhere, even if we're not suspected of being a criminal.

It certainly troubles me a great deal if Judge Alito doesn't have the common sense to see that this was improper from a multitude of angles.

[Iron Lungfish]

Follow the link. It's not just the evils of the drug war at work here. Alito essentially ignores the limitations of the warrant itself and substitutes it with the cops' own affidavit. If police were allowed to search whomever they wanted to search, regardless of what a warrant allowed them to search, there would be no point to having warrants at all, and judicial oversight of the state's search power becomes meaningless.

[Chad]

I disagree. This issue is about a typo and nothing more. These are precisely the types of technicalities that criminals should NOT be protected by.

Remember, the magistrate AGREED to the affidavit. The cops could not legally search anyone they wished, as some of you seem to imply.

[Shelby]

I think I'm the closest one yet to Julian's position here, though I'm closer still to the one he expressed yesterday.

For one thing, the case was about whether or not the police lost their qualified immunity for actions taken in the performance of their job. That makes it a closer call than if they'd found evidence with this search and wanted to introduce it -- almost certainly they could not have.

For another, the police apparently wrote up the warrant themselves and erroneously failed to include a broader definition of the persons to be searched. We don't know whether all the police involved had seen the actual warrant, or just the affidavit, or what. Some of the cops' understanding of the warrant's scope may reasonably have been inaccurate.

The search was conducted by a metermaid in a separate room upstairs. She patted them down and had them drop their trousers, looking at them from behind; the opinion does not indicate there was anything more intrusive than that.

I would have ruled with the majority on this case, not with Alito. But his opinion is not outrageous, especially given that he has to work within the framework of existing precedent. He can't just say "the law should be thus" and make it so.

[Daniel Montiel]

I agree with Shelby; the cops
* asked for permission to do XY and Z (with sufficient evidence) for their warrant
* filled out the application asking for XY
* got a warrant for XY
* did XYZ

I agree that they didn't do what the warrant said, and whether or not the evidence would have been allowed in is another matter, but how can anyone say they should lose their qualified immunity? They had good-faith belief that they could perform their actions, and given that drug raids are KNOWN to result in suspects stuffing drugs in other people's clothes in a hope that they are not covered by a warrant, none of this seems beyond the pale.

What bothers me is the constant blurring of "Judge A endorses X" becase Judge A did not stop X with his/her ruling. When will people realize that the judiciary is not another chance to change a law that the legislature already passed, barring a constitutional violation?

[Morat]

Simple version: The warrant the police GOT and the warrant the police WANTED were two different things.

Judicial question: When it comes to applying the actual warrant, on whose shoulders does the responsibility for executing it properly (IE: within it's limitations) fall?

Seems an easy call: The cops were the ones who sought the warrant, who had physical possesion of the warrant, and who have the authority of the state and the judicial system behind them. Ergo, they're the ones that need to READ THE DAMN WARRANT before executing it, to ensure they adhere to it properly.

Not that I can imagine many warrants that specify strip-searching a 10 year old. Maybe a plain frisk, but strip searching?

Yeah, that decision should be frightening to you. Starting with the potential for abuse and ending with the notion that the agents of the state don't need to be bothered with something as trivial as to the limits of their own power.

[Shelby]

Morat:

Say I'm a meth dealer. Cops bust down my door; I'm sure they've got a warrant. I stuff 8 oz of product in my 10-year-old daughter's shorts, 'cause who'd look there?

In other words, have you thought about the incentive created by a bright-line rule against such searches? Again, I don't think Alito got this one right, but I don't think you do either.

[Jason Sonenshein]

Originalism for some laws and overly broad and activist intention based interpretations for others, mostly in deferring in any way possible to the executive. Can't say I'm surprised for a Bush nominee.

It's no surprise that Judge Alito is apparently a big fan of government power. Talk Left points to this summary of Judge Alito's legal career from Legal Intelligencer:

After a clerkship with 3rd Circuit Judge Leonard I. Garth, Alito worked as a front-line federal prosecutor in New Jersey for four years. But soon after President Ronald Reagan was elected, Alito joined the Office of the Solicitor General, staying for four years and helping to decide what position the administration would take in cases up for review by the Supreme Court.

That was followed by a three-year stint at Main Justice as a deputy assistant attorney general. In 1987, at the age of 37, Alito was appointed U.S. Attorney for the District of New Jersey, a post he held until he was tapped in 1990 by the first President Bush to join the 3rd Circuit.

Of course Judge Alito's a big-government conservative. He spent his entire career as an advocate representing the federal government.

[Daniel Montiel]

Morat,
Also, the heavy use of the term strip-search seems designed to elicit an emotional response, rather than a logical one. yes, she dropped her pants. But this description from the opinion

the female officer removed both Jane and Mary Doe to an upstairs bathroom. They were instructed to empty their pockets and lift their shirts. The female officer patted their pockets. She then told Jane and Mary Doe to drop their pants and turn around.

doesn't exactly seem like she was stripped naked in front of hooting cops.
And I am very scared by your "Not that I can imagine many warrants that specify strip-searching a 10 year old." This is troubling, to me. "We can't search children! It's not right! Even if drug suspects are known to stuff drugs in their kids' clothes as a way to avoid being caught, we just CAN'T." What about baby carriages? Strollers? Diapers?
Try this: **The warrant SHOULD have asked for a search of all on the premises, child or adult. The evidence gathered supported such a search. The application didn't have a checkbox checked. Therefore, the police owe the girl 10 million. **
I don't buy that, myself.

[Fledermaus]

Shelby,

You're missingthe main point. IF the warrant had authorized a search of all persons present then there wouldn't be an issue here. But the warrant did not give that authority, instead Alito took it upon himself to mind read the issuing judge's thinking, saying well of couse the judge would have approved searching everyone there. Of course there was nothing in the record as to what the judge actually thought of the warrant.

Alito went beyond the four corners of the warrant itself to excuse police overreaching, and that it the problem here - not some bright line rule against strip searching 10 year old girls, as reprehensible as that is. Furthermore as this was a no knock warrant the possibility that John Doe would have time to gather up his stash and hide it on his wife or daughter was very remote.

[Daniel Montiel]

BTW, I don't speak for Shelby here, but oh YES, if I could wave a magic libertarian wand and make the War on Drugs go away, I would. I think it is morally wrong, abused for political purposes, etc. I think it violates my rights as a free man to choose what I do with my body. I think the DARE T shirts are stupid.

My above posts are to current law, and an analysis of the police officers' liability.

[Daniel Montiel]

Fledermaus
Doesn't the record say that the affidavit contained that info? You are making it about "the judge's state of mind" but I thought the analysis was on the cops state of mind and good-faith belief.
The cops asked for it several times in the affidavit, they couldn't fit it into a box on a form, they thought they had permission.
This is not a Elian Gonzales raid into a pre-school, people.

And the no-knock warrant stopping the hiding of drugs is conjecture, at best! That would assume the suspects wouldnt have seen or known the cops were coming, that they were all in plain view of the cops when the door opened, and that no one could have ducked or gone around a corner before stopped. Maybe in a fantasy world, but ask a cop who does a no-knock: total control of the situation is not immediate.

[thoreau]

What about the random bag searches conducted last night during trick or treat?

What, you didn't hear of them? Don't you people read the Onion?

[kwais]

BTW it just occured to me if you are going to have a nickname, "Strip Search Sammy" is about the coolest nickname, specially as it is meant to be derogative.

[Fledermaus]

Doesn't the record say that the affidavit contained that info?

Daniel,

When the police want a search warrant they have to show that they have probable cause that contraband is likely to be found for every person or place to be searched. Most often police submit affidavids of things they know that support probable cause. That's what the affidavidt here is, the police request - that does not mean that they will get a warrant for everywhere/everyone that they are saking for.

All search warrants must identify, in the words of the 4th amendment, "The place to be searched and the persons or things to be siezed" here, if you read the majority opinion in Doe it is clear that the warrant only stated that Doe was the only person to be searched. No matter what the affidavidt said, it is the warrant that grants the authority for the search and, as the majority notes, the police clearly exceeded that authority.

Arguments of 'good faith belief' fall by the wayside when a simple reading of the warrant, which appartently had a section for persons to be searched, did not include a phrase such as 'and all persons on the premesis.' Look, what Alito did here was go past what the warrant authorized and did so on the most flimsy of rationales.

[Fledermaus]

While I'm at it, "all persons on the premesis" warrants are a gray area and many states don't allow them unless there are special circumstances, police testimony about a general habit of drug dealers to hide them on family memebers, without more might have been knocked out by the judge issuing the warrant. I'm not saying that police intended to mislead the judge, but it is not totally improbable.

[Hakluyt]

BTW, that Alito ad is rather humorous. Is it done by the same folks who did the Meiers ad? 🙂

[quasibill]

"Follow the link. It's not just the evils of the drug war at work here."

Unforunately for you, it is. As I noted, such tactics would never have crossed the minds of those in the founders' generation - there would have been no need.

Fast forward 200 years and you'll read SCOTUS (and posters here) stating how such searches are necessary, otherwise there would be no ability to enforce the WoD. The reasoning is completely backwards, as usual. Not only is the WoD unconstitutional from the git-go as exceeding Congress's power, it has completely perverted what was considered proper search procedure, because now, in order to prosecute the WoD, it's necessary to do things that weren't necessary before.

As for the link, I read it, and yes, the point is Alito decided that cops get a freebie when they forget to do their job properly (read the damn warrant BEFORE you do the search!). But if you don't understand the context of how our law got to be so twisted and flipped on its head, you'll fail to understand why someone who claims to be an originalist can be so wrong.

The Scalia, Rhenquists, et al have long viewed the 4th as nothing more than an unneccesary roadblock to the good intentions of cops and prosecutors everywhere. So they riddle it with non-textual and non-historical exceptions so as not to unduly burden these well meaning politicians and government bureaucrats. Alito, and yes, Roberts as well, will fit comfortably into this mold.