Alito Dissent Draws Scrutiny

As an appellate court judge, Supreme Court nominee Samuel A. Alito Jr. “approved the strip-search of a 10-year-old,” says a new TV ad sponsored by a coalition of liberal groups, including People for the American Way and the Alliance for Justice, that opposes his confirmation.

Conservative activists fired back this week, calling the ad an example of the “wild inaccuracies and distortions” that are being used to “smear one of the country’s leading judges.”

In television appearances, Democratic Party Chairman Howard Dean has cited Alito’s having “condoned a strip-search of a 10-year-old” as evidence that President Bush’s nominee is “outside the mainstream.” On the other side, the Fox News Channel refused to accept the ad for broadcast, citing the contention of network lawyers that it was factually inaccurate and misleading.

Although the case figures to play a big role in the debate over Alito’s suitability for the Supreme Court, legal experts who have studied his opinion say it has little to do with the propriety of a strip-search.

Even the lawyer who sued the police officers who conducted the drug raid said it was unfair to accuse Alito of endorsing the strip-search of a child.

“I’m glad I won the case, but I think it is wrong for some of these groups to say Judge Alito favors the strip-search of children,” said Andrew A. Solomon, a Philadelphia lawyer who represented the accused dealer and his family.

The legal dispute turned on whether the magistrate who authorized the search of the suspected drug dealer’s house had approved the personal search of all its occupants or of the homeowner alone.

In a 2-1 decision written by Judge Michael Chertoff -- now secretary of the Department of Homeland Security -- the U.S. 3rd Circuit Court of Appeals said the warrant had referred only to the homeowner.

But in an affidavit supporting their request, police had asked the magistrate for permission to search “all occupants of the residence.” The request was approved, and the affidavit was attached to the warrant.

In his dissent, Alito wrote that “the best reading of the warrant is that it authorized the search of any persons found on the premises.”

Several experts in criminal law said they believed Alito was mistaken, even though it was a close question.

“The Supreme Court has been a stickler for saying the warrant must state on its face who is to be searched,” said USC law professor Charles H. Whitebread. “If the warrant itself did not say they can search all the occupants, it could not permit searching them.”

“You could say this is a technical violation [by the police], but the case suggests Alito is willing to defer to law enforcement,” said Alan K. Chen, a criminal law expert at the University of Denver College of Law. “Ironically, it shows he is not a strict constructionist, at least in the area of criminal procedure.”

The case began as a routine drug raid in March 1998. Police in Schuylkill County, about 60 miles northwest of Philadelphia, had watched as informants bought methamphetamines from the home of a suspected drug dealer.

They went to a magistrate seeking a warrant to search his house, and asked that the search include “all occupants of the residence” -- since drug dealers sometimes hide evidence with family members and other individuals. One officer typed the warrant, which had a box asking for the description of the place and persons to be searched. The officer typed the homeowner’s name and the address.

The magistrate read the affidavit and the warrant and stamped both as approved. When the officers went to the home of the suspected dealer, identified in the appeal only as “John Doe,” they took the warrant, with the affidavit attached. Apparently anticipating that women might be present in the house, they took along a female traffic-meter patrol officer.

According to the appellate court opinion, the female officer took the homeowner’s wife and 10-year-old 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 two were taken back downstairs until the search of the house was complete.

The Does’ lawyer said no significant quantity of drugs was found. Doe pleaded guilty to possession of a small amount of marijuana, Solomon said.

Solomon then sued the police in federal court on behalf of John and Jane Doe, who contended the officers had violated their constitutional rights.

The 4th Amendment says, “The right of the people to be secure in their persons [and] houses ... against unreasonable searches and seizures shall not be violated.” It goes on to say that no warrants authorizing personal searches shall be issued except “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 Supreme Court has given the police a limited protection against being sued for doing their jobs. Under this doctrine, known as “qualified immunity,” police cannot be sued unless they knowingly violated someone’s “clearly established” right.

A federal judge refused a police request to dismiss the case of Doe vs. Groody (Joseph Groody was one of the officers on the raid). The police then appealed to the U.S. 3rd Circuit Court of Appeals in Philadelphia.

The three-judge panel consisted of Thomas L. Ambro, a President Clinton appointee; Chertoff, who was appointed by President Bush; and Alito, a 1990 appointee of President George H.W. Bush.

The court’s opinion, filed in March 2004, makes only one passing reference to the claim that this was a strip-search of a minor. Writing for the majority, Chertoff said the officers were being sued for “the unlawful search of occupants” of the residence.

“The appeal turns on the scope of the search authorized by the warrant,” he wrote. “If the warrant did indeed authorize a search of Jane and Mary Doe, then the officers were entitled to rely upon it

“The face of the search warrant here, however, does not grant authority to search either Jane or Mary Doe,” he concluded. Moreover, the officers should have known they had no authorization to search individuals who were not mentioned in the warrant, he said.

A month earlier, the Supreme Court had handed down a 5-4 ruling in a similar case from Montana. Police had obtained a warrant to search a ranch for automatic rifles, grenades and rocket launchers. The ranch owner sued for an illegal search and won because the warrant itself made no mention of these weapons.

Nonetheless, Alito dissented in the Pennsylvania drug case, maintaining that “a common sense and realistic reading” of the facts show that the “magistrate intended to authorize a search of all occupants of the premises and that the warrant did so.”

Alito emphasized that the magistrate approved the affidavit and attached it to the warrant, unlike in the Montana case. Allowing the officers to be sued makes no sense, he added, because they “did not exhibit incompetence or a willingness to flout the law. They reasonably concluded that the magistrate had authorized a search of all occupants of the premises.”

“I share the majority’s visceral dislike of the intrusive search of John Doe’s young daughter,” Alito concluded, “but it is a sad fact that drug dealers sometimes use children to carry out their business and to avoid prosecution.”

After losing in the 3rd Circuit, the county’s lawyers appealed to the Supreme Court, which refused to review the case. Afterward, the county agreed to settle the case for an undisclosed amount, Solomon said.

Law professor Chen said Alito’s dissent was troubling because it ignored the clear words of the 4th Amendment.

“This is a very technical issue. And obviously, it’s unfair to say this is about strip searches. That is almost irrelevant to the legal analysis,” he said. “But Chertoff is right. The warrant itself controls, and this case shows Alito as bending over backward to defer to law enforcement.”