Monday, October 31, 2005

Alito Defense

     Is Alito a good choice?  I doubt I'd ever pick him.  But I've read two of his dissents today, and they did not seem out of line at all.

     In fact, here Think Progress seems out of line.  They describe Doe v Groody(pdf) here as follows...

ALITO SUPPORTS UNAUTHORIZED STRIP SEARCHES: In Doe v. Groody, Alito agued that police officers had not violated constitutional rights when they strip searched a mother and her ten-year-old daughter while carrying out a search warrant that authorized only the search of a man and his home. [Doe v. Groody, 2004]

     The question in the case has nothing, whatsoever, to do with strip searches.  It turns entirely on the relationship between an affadavit, sworn by cops and signed by a Judge, attached by a staple to a warrant.  Both documents clearly state what is to be searched.  The warrant says John Doe's person only.  The affadavit says "The search should include all persons in the house."

     The majority makes its case as follows

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. 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.
   To be sure, a warrant must be read in a common sense, non-technical fashion. United States v. Ventresca, 380 U.S. 102, 109 (1965). But it may not be read in a way that violates its fundamental purposes. As the text of the Fourth Amendment itself denotes, a particular description is the touchstone of a warrant. U.S. Const. amend. IV. The requirement of a particular description in writing accomplishes three things. First, it memorializes precisely what search or seizure the issuing magistrate intended to permit. Second, it confines the discretion of the officers who are executing the warrant. Marron v. United States, 275 U.S. 192, 196 (1927). Third, it “inform[s] the subject of the search what can be seized.” Bartholomew, 221 F.3d at 429. For these reasons, although a warrant should be interpreted practically, it must be sufficiently definite and clear so that the magistrate, police, and search subjects can objectively ascertain its scope. See Groh, 540 U.S. at __, slip op. at 5.


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 supportin g 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.

     That's Doe V Groody.  Nothing really to do with strip searches whatsoever, but between the relationship with the warrant and the attached affadavit.

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