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January 29, 2006


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Deborah Spaeth


"I raise this because I think it impacts whether Alito was correct to end his analysis once he concluded that the warrant authorized the search. I think the majority is saying they would've called it a day at that point, too, if they didn't disagree on the scope of the warrant."

I agree with Dan on this point although I am skeptical, as Law Fairy is, re the alleged benefits to society when magistrates rubber stamp the strip searching of kids under these circumstances.

The Law Fairy

Dan, a fair point -- but that's not the entire quote. There's a caveat at the end:

"unless "the warrant
application is so lacking in indicia of
probable cause as to render official belief
in its existence unreasonable." Malley v.
Briggs, 475 U.S. at 344-45."

The search still has to be reasonable. That's the whole point of the non-absolute nature of the qualified immunity doctrine. If officers could just rely on warrants, no matter how patently unconstitutional they are, then officers would never be sued for misbehaving. Victims robbed of their constitutional rights would have no recourse. For once, white people, too, would have reason to fear cops (lol).

I would argue, Dan, that strip-searching a ten-year-old girl clearly goes beyond the bounds of what's constitutional. Even the most probable of causes has to yield, at some point, to individual rights. If the dad put cocaine in his daughter's nether regions, I'm all for taking him in on child abuse and molestation charges in addition to the drug charges. But to allow police officers to treat a small child like a common criminal, just because she's already been wronged by her own father, is beyond the pale.

Does anyone have an affirmative constitutional argument for allowing this kind of thing? That's a genuinely serious question.

Deborah Spaeth


"I pointed you to the sections of Doe that discuss [the evidence for the 'longstanding rule']"

No, you did NOT Leif. You pointed out the sections of Doe that say that clerical errors and ambiguities in a warrant may be clarified constitutionally by reasonable reliance on facts in an affidavit.

But that sort of warrant was not at issue in Doe. There is nothing ambiguous about the warrant here except in the after-the-fact minds of the police (and Alito, retrospectively) who wanted to strip the girl in this case, who LACKED a warrant authorizing the strip search of that kid, but who went ahead and strip-searched her anyway. Of course they police are going to argue the warrant was "ambiguous." What else are they going to say?

So Alito says (I paraphrase) "Well, under these circumstances, it's okay for the police to imagine that the judge/magistrate made a mistake and merely FORGOT to include the girl on the warrant so that the cops could strip search her. So the cops don't need to get a new warrant to strip search a kid when they imagine that the judge accidentally left the kid off off the warrant. They can just pretend that the warrant says something which is plainly does not. And besides, we all know that drug dealers hide their drugs in kids panties so while I find this sort of searching distasteful, we should all understand that police need to be given every benefit of the doubt when they engage in such activities."

This is not reasonable, Leif. This is extremist police state garbage propagating almost solely by folks like Alito who need not worry about police accidently kicking their doors down while looking for the drug dealer next door.

Almost all Americans -- if they understood the 4th amendment and how search warrants are IN FACT written nearly all of the time -- would not approve of the strip search of this girl under these circumstances.

But was there any meaningful effort to explain these issues, Alito's strange dissent, and the consequences of Alito's proposed ruling to average Americans? Any at all?

"The ambiguity was apparent to Alito - the warrant descibed probable cause to search everyone in the house"

So the warrant itself said "Probable cause exists to strip search the girl for drugs"? I don't recall that part of the case.

Again, this is the 4th amendment and we're talking about strip searching. We're not talking about an affidavit that describes the polices desire to search a chest of drawers, a trunk, a bookcase and safebox and a warrant that authorizes searching a chest of drawers, a trunk, a suitcase and safebox. We're talking about a warrant that says police can search person X for drugs, not strip some kid in the house.

Again: the solution for the cops is so simple -- get the judge to fix the damn warrant. In the meantime, search everywhere else.

"Fine, but adopting the contrary stance does not make Sam Alito some kind of dangerous radical."

Did I say that? I thought I said Sam Alito was Hitler reincarnated.

Seriously, Leif, if you cut the strawman garbage than you won't have to worry about "mentally exhausting" yourself by wading through my "spite."

Alito's dissent in this case is "radical" and everyone in the Circuit's jurisdiction can be thankful he was shot down by the reasonable majority. As for Alito being "dangerous," that is not the term I would use. I would merely say "unfortunate for citizens of this country, unless they are very conservative white Christian business owners."

I've said it before and I'll say it again: the only good thing about Alito being nominated is that the majority of sleep-walking Americans will be forced to wake up and smell the coffee that Republicans have been brewing for the past twenty years. It's going to smell a lot worse than Bill Clinton's cigars -- even worse than the one he gave Monica.

Dan McGuire

With all due respect, I think you're mixing concepts. The additional language you quote goes to the reasonableness of the belief in the probable cause, not the scope of the search. I'm not sure there should be any circumstances where a stip search of a 10 year old girl should be allowed, but I don't think that goes to the qualified immunity point. If the warrant allows the search (which the majority obviously ruled it did not in this case), qualified immunity applies unless nobody could think the warrant was properly issued. The reasonableness of the search authorized by the warrant doesn't impact the qualified immunity analysis.
As Deborah suggests, a rule that no warrant may authorize strip searches of minors sure sounds like a good one, but until that is the case qualified immunity should apply to cops following a validly issued warrant (again, such was not the case here, the court ruled). Shame on the lawmakers for allowing such searches, but don't blame the cops when they search within the confines of a valid warrant.

Kimball Corson

I am presently out sailing on the Pacific and so lack bandwidth for much here, but I do want to say this: for those of us who have read all of Alito's dissents and most all of his opinions (still reading), when all are taken as a whole, then most of the comments here, aside from Law Fairy's and Geof's, come off as very foolish and ill-informed. Almost as foolish as those who don't think the faith-based leadership Bush and Cheney pose a threat to our civil liberties, after all that has occurred.

Cheeky Lawyer

Kimball repeats the same old tired line: if you read it, really you'd see you are foolish. Again no citations to any cases, no recognition of the point made over and over that conservatives come out different ways on these questions (the Scalia/Thomas split).

Also to Deborah and others who are making such hay out of Doe v. Groody: if the warrant had clearly incorporated the affidavit, do you realize that we wouldn't even be having this debate and the search of the mother and her 10 year old would have been perfectly legitimate. This can't be a question of whether a search of a 10 year old is Constitutional because clearly it is, right? Or if you think it never could be, I guess you'd rather have drug dealers exploiting little children as their mules/carriers for drugs, eh?

Andy Adams

Good thing 58 Senators didn't care about Professor Stone's views.

Congratulations Justice Alito!

Kimball Corson


You don't need a bucket of cites on Alito which are length. Just do a judge search on Alito and you can get 15 years worth of opinions in a heartbeat. To proceed otherwise is foolishness.

The Law Fairy

Oh, civil rights...

I will miss you so...


True enough Andy! Rock on, Justice Alito!

Deborah Spaeth


"Also to Deborah and others who are making such hay out of Doe v. Groody: if the warrant had clearly incorporated the affidavit, do you realize that we wouldn't even be having this debate and the search of the mother and her 10 year old would have been perfectly legitimate."

Yeah, I do realize that. And I've acknowledged that fact at least once already in this thread.

Kimball Corson

Where does the mean spiritedness we sometimes see in this and earlier threads on this topic come from? Frustration, or is it something more? I wonder, but I have a low regard of for it and those who don't hold our Constitution in high esteem and would quickly sacrifice it for expediency.

For conservatives, that ends should justify the means is truly ironic (the understanding of irony being a lost art these days, as Harold Bloom points out), because it is to take a page out of the history of Soviet-styled socialism for much of the last century. But I guess if the shoe fits . . .


Now that Alito's in, this topic may be moot, but I'll add my two cents (three cents Canadian) anyway.

The Alito issue is simpler than it first appears. FISA/wiretap issues are important, yes, but the real issue is what happens to abortion rights in this country. What the Supreme Court gaveth in Roe it can taketh away in a future case, just as Brown v. Board of Ed. cancelled Plessy v. Ferguson.

The real issue is one of legislative failure: Neither Congress nor state legislators had the will to legalize abortion (if that were the will of the legislature in a given (more liberal?) state) by passing legislation to that effect. Legislative cowardice has only grown worse over the years. Witness this past year: Social Security has to be fixed, but to what issue do our gallant statesmen devote their time? Answer: Grandstanding on Terry Schiavo.

Legislators (and others) criticize the S. Ct. for legislating from the bench, and yet the abortion question landed in the lap of the Supremos by default of the legislators.

Deborah Spaeth


"What the Supreme Court gaveth in Roe it can taketh away in a future case, just as Brown v. Board of Ed. cancelled Plessy v. Ferguson."

There may be some truth to your comment, pgn2655. Nevertheless, the quote above ironically demonstrates why any decision which "cancels" Roe or Casey is going to result in some street fighting the likes of which this country hasn't seen for half a century.

Think about it. What individual rights did the Supremes "take away" with their Brown v. Board of Education decision?

I don't spend a whole lot of time demonstrating and trashing government buildings. But the urge to do so will be irresistable on the day that the Supreme's decide that women's vaginas are goverment property whenever their pee contains a certain concentration of hormones.

Deborah Spaeth

Hilarious report on CNN:

"In a stunning move as the Supreme Court's newest member, Justice Samuel Alito broke ranks Wednesday night with the court's conservatives by refusing to allow Missouri to execute death-row inmate Michael Taylor."

Awwww, what a nice gesture.

Note: Alito's vote didn't matter to Michael Taylor.

Is anyone here "stunned" by this news, by the way?

Someone at CNN wants you to believe that you should be.

Kimball Corson

Since people can and do sometimes change, here's a piece of really wishful thinking: perhaps Alito long ago adopted the approach of a fabian socialist to get himself on the Court, where he could then be his own man and perhaps further he has taken to heart the criticisms of him here and elsewhere, as well as some “advice” from, and pillow talk with his wife who went through an eye-opening experience during the hearings, so he is really now a turn-coat of sorts in our favor. This is the opposite tack to Deborah's cynicism, but it has happened before.

She’s probably right, but I hope I am, though I am not taking any bets. Let’s see.

The Law Fairy

Souter the Second?

Doug Hoffer

On January 31st Law Fairy said:

"Oh, civil rights...

I will miss you so..."

On February 2nd Law Fairy said:

"Souter the Second?"

I point this out not because I think this one vote means anything, but because it amazes me that people still think they can predict exactly how a justice is going to rule once confirmed. While Professor Stone may be justified in thinking that Judge Alito "sides almost reflexively with the standard "conservative" position in each case, without regard to whether that calls for judicial passivism or judicial activism", it is worth noting that many justices surprise the Presidents that nominate them. While Judge Alito has a longer judicial track record than most nominees, the role of appellate courts is different. A lifetime appointment to the highest and most powerful court in the country does often impact how jutices rule.

The Law Fairy

Doug -- the comment wasn't about the recent vote. It was a half-joking response to Kimball's post hoping that Alito might not be so conservative as he seems.

Doug Hoffer

Law fairy, my apologies. My purpose was to say as a general rule, no one can accurately predict how a justice will rule. I thought the contrast of your two comments was interesting, and assumed the second one was made in the context of the recent vote.

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