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A coalition of liberal groups has aired a TV ad against Judge Samuel Alito, saying that he "would have upheld the strip-search of a 10-year-old girl." The claim arises from Alito's dissenting opinion in the case of Doe v. Groody [PDF] in the 3rd Circuit Court of Appeals. I decided to take a look myself into the original text at issue; both the majority opinion and the dissent are available on the Internet. The whole thing is only 20 pages of nice, friendly large type in two-column format.
First off, let me lay the standard boilerplate disclaimer on you: I am not a lawyer, I do not pretend to be a lawyer, I don't even play one on TV. In fact, I didn't even take any pre-law courses in college, much less the LSAT. It therefore stands to reason that the following in no way constitutes legal advice, and should not be relied upon by anyone as such. Having said that, I did three years of model legislature in high school, and I'm generally a pretty perspicacious fella.
The case of Doe v. Groody arises from a search made of "John Doe" by police in Pennsylvania, including Officer Groody. John Doe was a suspected methamphetamine dealer. The police sought a search warrant for John Doe, his home and car, and any other occupants at the time of the search, based on a duly sworn written affidavit filed with the application for the search warrant. So far, so good. Trouble is, when the police officers filled out the actual warrant for the judge to sign, they only specified searching John Doe, his house, and his car — not any other occupants. The officers then went to John Doe's home, where he, his wife "Jane," and their 10yo daughter "Mary" were the only occupants. A female officer took Jane and Mary to the upstairs bathroom and searched them, including asking them to lift their shirts away from their bodies and then drop their pants. At no time was young Mary Doe naked, nor was she in her underwear except in the company of her mother and a female officer.
The legal issues in the case are much less "sexy" than "strip-search" and "drugs" might suggest. I'll try to summarize the facts of the case as concisely as possible.
First, a few excerpts from the affidavit the police filed in support of the warrant:
[¶17] The search should also include all occupants of the residence as the information developed shows that [John 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 may attempt to conceal controlled substances on their persons.The search warrant itself looked something like this:
...
[¶20] 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.
...
[¶21] As a result of the information developed, your affiant requests that a search warrant ... be issued for ... the residence of [John Doe] and all occupants therein.
The salient point is that the date and the probable cause specifically refer to the affidavit, thus incorporating it by reference in those categories. However, the specific description of the premises and/or person(s) to be searched does not explicitly refer to the affidavit.SEARCH WARRANT AND AFFIDAVIT
blah blah blah ... boilerplate legalese ... yada yada yada
ITEMS TO BE SEARCHED FOR AND SEIZED crystal meth, paraphernalia, money, records, weapons, [specific listing] SPECIFIC DESCRIPTION OF PREMISES AND/OR PERSONS TO BE SEARCHED residence/office at 1234 Somewhere Street, Anytown, PA, [description of the house and the vehicle]; John Doe, [race, sex, date of birth, hair and eye color, Social Security Number] DATE OF VIOLATIONS last Tuesday; see attached affidavit PROBABLE CAUSE BELIEF IS BASED UPON THE FOLLOWING FACTS AND CIRCUMSTANCES Like, we totally saw some stuff, and like, we fer shure think the dude is hella dealing crystal meth; see attached affidavit RESULTS OF SEARCH [filled in after serving the warrant]
The Fourth Amendment is at the center of the dispute. It says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.The majority, Judges Ambro and Chertoff, held that the warrant did not on its face authorize the searching of "all occupants," and in fact the affidavit did not even provide probable cause for searching Jane and Mary Doe — it might have provided probable cause to search you or me or anyone else who happened to be there, but not the residents of the home other than John Doe. The Supreme Court has ruled that a search warrant for a building does not automatically confer authority to search all persons inside. The Supreme Court has specifically rejected the line of reasoning that the others present might conceal evidence as a justification for searching someone not specifically named in the warrant.
The turning point of the majority decision is this [emphasis in the original]:
What is significant is that the officers can point to no precedent that allowed an unincorporated affidavit to expand a search warrant. Although there are decisions that allow unincorporated affidavits to clarify or narrow overbroad warrants, we have explained at considerable length why these are a totally different matter. This is not an arcane or legalistic distinction, but a difference that goes to the heart of the constitutional requirement that judges, and not police, authorize warrants. An officer may reasonably rely on a magistrate’s approval of an overbroad warrant because the officer normally should not be penalized for the magistrate’s mistake. See Massachusetts v. Sheppard, 468 U.S. 981, 990 (1984); U.S. v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars and Fifty Seven Cents, 307 F.3d 137, 152 (3d Cir. 2002). But there 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. ... As [the Supreme Court] observed in the companion case to Sheppard, "a warrant may be so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers canot reasonably presume it to be valid."(Yes, in fact, I did leave the citation in just because the United States of America sued $92,422.57, per se.)
Alito's dissent focuses more narrowly on the question of whether the police officers acted in the reasonable belief that the warrant they received permitted a search of all persons present at the time the house was searched. After all, the issue the judges were deciding was not whether the search was within the scope of the warrant — technically, it clearly wasn't, no matter what Alito tried to argue — but rather whether the officers reasonably believed that the search was proper. It is clear from the officers' testimony, excerpted in the decision, that they believed the search was within the authority of the warrant signed by the judge, so the question then is simply whether that belief was reasonable. If the officers reasonably believed they were acting properly, they cannot be sued personally for the illegal search, although the county could still be sued. On the other hand, if the officers had no reasonable cause to believe they were authorized to search Jane and Mary Doe, then they can be held personally liable.
Alito focuses on the "commonsense and realistic" standard by which the Supreme Court says warrants are to be judged. The officers prepared an affidavit and application for a warrant requesting authority to search all persons present. The box on the warrant form itself for the place/person(s) to be searched did not list "all persons present," nor did it specifically incorporate the affidavit by reference, but that's simply because the box on a pre-printed form was already full to overflowing with the description of John Doe, the house, and the car — the primary targets of the search. Since the affidavit and application specified "all occupants of the residence," and the affidavit was incorporated by reference twice on the face of the warrant, and a copy of the affidavit accompanied the warrant when it was presented to the Doe family at the time of the search, the officers felt justified in their actions.
In short, had Judge Alito had the chutzpah to argue simply that the search was illegal but the officers reasonably believed that they were acting properly, and that therefore the officers have qualified immunity — the Doe family can't sue the officers personally — then I would have hailed his dissent as brilliant. The Doe family could still have sued the town and the county and the state, but not the individual officers. That is a result I would agree with, and that I think the majority of Americans would view as justice. It neither encourages police to overreach in their searches nor punishes people for honestly trying in good faith to do their job in service to their community. If officers do overreach, they still may suffer the loss of evidence obtained, but they should only be personally liable if they acted in bad faith or without due diligence.
Unfortunately, Judge Alito fell short of that result by trying to overreach himself: advancing the facially absurd argument that the warrant as issued did in fact authorize the searching of Jane and Mary Doe. In fact, the dissent begins with this much weaker argument, an argument that not only falls under its own weight but drags down with it a more just conclusion. Quoting Alito: "First, the best reading of the warrant is that it authorized the search of any persons found on the premises." [emphasis added by The Third Path] Alito then goes on to set out five points that he believes make the case that the warrant was valid as the officers believed. I will paraphrase:
- The cops did clearly ask permission to search all persons present.
- In the affidavit, the cops clearly tried to establish probable cause to search all persons present.
- In drafting the warrant for the judge to sign, the cops intended the warrant to permit the search of all persons present.
- The warrant explicitly says "see affidavit" [or words to that effect] in two places, specifically including the part about probable cause.
- The judge didn't make a single change to the warrant. If the judge didn't intend to grant authority that he clearly understood the police believed they were being granted, why didn't he speak up and clarify the issue?
In short, my analysis of the whole decision is that Chertoff and Ambro were wrong for the right reasons, and Alito was right for the wrong reasons.
To step back to the question of the liberal attack ad, it, too, is right for the wrong reasons. The reason that Doe v. Groody gives honest patriotic Americans pause is not that Alito tried to shield honest cops from personal financial responsibility for a clerical error, but that he tried to argue that there was no clerical error.
The warrant was flawed, but it was not reasonable to expect the officers under the circumstances to notice the crucial omission. Alternately, you can argue quite cogently that the judge should have noticed the crucial omission, too, and should have written "see affidavit" on the face of the warrant with an arrow pointing to the overflowing "who/what" text box, and that therefore the judge, too, should have been personally liable, same as the cops.
The cops did a sloppy job writing the affidavit and typing up the warrant form. The judge did a sloppy job of reviewing the warrant and affidavit before signing. Chertoff and Ambro did a sloppy job of protecting the principle that Constitutional rights are serious business, and Alito did a sloppy job of protecting honest cops trying to go by the book to take a drug dealer to justice.
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