I decided I would look at Alito with an open mind. Well, I’ve just a read a Third Circuit case from just last year, Doe v. Groody, in which Alito wrote the dissenting opinion, and his dissent bothers me.
The case was about four police officers who had a warrant to search a suspect and his house for drugs. The affidavit they used to apply for the warrant requested permission to search “all occupants of the residence” for drugs, but the warrant signed by the magistrate granted permission only to search the suspect and nobody else. When the officers went to the house with the warrant, they found the suspect, his wife, and their ten-year-old daughter. A female officer brought the wife and daughter 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. No contraband was found.
The Does later filed a complaint against the officers, alleging that the officers illegally strip-searched the wife and daughter.
The judges voted 2-1 against the officers, concluding:
Searching Jane and Mary Doe for evidence beyond the scope of the warrant and without probable cause violated their clearly established Fourth Amendment rights.
Alito dissented. He listed several reasons why the officers could have reasonably concluded that they were allowed to strip-search the wife and daughter, against the face of the warrant.
Here’s what really bothers me. After listing his reasons, he writes:
I believe that the majority’s analysis is flawed. First and most important, the majority employs a technical and legalistic method of interpretation that is the antithesis of the “commonsense and realistic” approach that is appropriate.
“Technical and legalistic”? Shouldn’t those be the guiding principles of judicial restraint? Aren’t “commonsense and realistic” another way of saying that a judge should use his discretion, i.e. be a judicial activist? Isn’t judicial activism supposed to be really really bad? So much for principles.
Alito spent three years as U.S. Attorney for the District of New Jersey and four years as an assistant U.S. attorney. If this case is any indication, I guess we know where he stands on criminal law.
Oh, you know one of the more interesting parts of this case? The majority opinion – from which Alito dissented – was written by none other than Michael Chertoff, formerly a Third Circuit judge and now U.S. Secretary of Homeland Security.
Yes, but… (and isn’t there usually a “yes, but…”) what kind of magistrate doesn’t allow all occupants to be searched in this kind of case? That’s the confusing part to me- I thought standard procedure in drug warrants was to allow all occupants to be searched. Otherwise, drug dealers know they are free to hide drugs on the other occupants. Without getting into his dissention (sp?) and the discussion about “mode of incorporation,” “qualified immunity,” and “monies” (joke), all of which you’re eminently more qualified to udnerstand, I don’t think this is exactly the case and legal issue that’s going to cause the public to demand Democrats to filibuster.
To think about it another way, which is the bigger problem:
a) that a 10-year old had to drop her pants in front of her mother and a female officer to make sure drugs weren’t hidden, and that the warrant didn’t explicitly permit that, or
b) that the 10-year old is living in a house with a dad that’s dealing crystal meth?
So… I’m not so sure this can even be an accurate read on where he stands on criminal law. But it is an interesting case.
My point was really just the paragraph I quoted – his distinction between “technical and legalistic” and “commonsense and realistic.” Apparently judicial restraint is good except when it’s not.
Very enlightening post – thanks, Tin Man!
Supposedly the 4th Amendment protects our persons and properties from unlawful searches. A judge must sign a warrant giving the officers the authority to conduct such a search ..The officers did not have such authority. How can someone who is supposed to be a strict Constitutionalist defend such an attack on the Fourth Amendment?
Forget all the details …Two people, one a child, were subjected to illegal searches ..the police exceeded their authority..How can such a man who defends illegal searches (and of children yet) be nominated and considered for the Supreme Court!
Shame on this country! Shame!
Laws should not be broken….except when they need to be broken….to catch someone who might have broken them. So commit a crime because someone else might have? Alito sounds like a real winner.
I have mixed feelings about Alito’s opinion in Groody, but it’s hard for me to see that opinion as an example of “judicial activism”–Alito effectively deferred to the judgement of the authorities involved. If letting the executive (or legislative) branch of government do its thing is “activism”, it’s activism of an extraordinarily limited (and counterintuitive) kind.
And as for his “commonsense” interpretation–I don’t think you’ll find many people, constitutional strict constructionists or not, who honestly object to judges applying common sense. Common sense, for example, would seem to suggest that the Constitution says nothing one way or another about abortion, and the issue is therefore left to the states. Do you personally object to common sense, or are you trying to set up a straw man of conservatives who you suppose object to it?
Also, and just as important, if you read the majority ruling in Groody you’ll notice that it says, “To be sure, a warrant must be read in a commonsense, nontechical fashion”. So _all_ the judges involved agreed that the warrant should be read in “commonsense, nontechnical” terms, and if that position constitutes “activism”, then all three judges (Chertoff and Ambro, as well as Alito) are activists.
Further, I’d say Alito had a point. The affadavit in support of the warrant repeatedly says things like, “the search should also include all occupants of the residence”; a judge reviewed the affadavit and warrant and approved the warrant as written. I’d agree with you that police shouldn’t generally be strip-searching ten-year-olds, but it was not necessarily unreasonable of the police in this case to believe that they were acting within the law–which is all that Alito argued.
You make some good points, Chaplain. I’m still not really comfortable with his reasoning, but I’ll have to think about what you’ve said.