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January 29, 2006

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Niels Jackson

That was hard to read:

QUOTE: "Have any of you actually *read* Alito's opinions?"

Yes, quite a few of them. Has Stone read even a single opinion? If he has, surely he would have produced a case citation by now?

QUOTE: "Do you disagree with Stone's conclusions because of evidence of your own, or are you just attacking him for not doing the legwork for you?"

Doing the legwork for me? That question is incoherent. Stone has failed to do the legwork for HIMSELF. He is the one who claims to make a confident prediction about where Alito stands on these issues. Yet despite being asked repeatedly for his reasons and evidence, all he can do is wave his hands in the air and warn us that we had all better take his word for it.

Maybe Stone is right with his inflammatory accusations, but he hasn't given anyone else any reason to think so.

Deborah Spaeth

T. More

"Those who think the case ruled that 10 year old girls may not be searched, or strip searched, will be sad to learn that that is not what the case was about."

Nobody here said that the case ruled that so we are left wondering why you bring up this strawman, T.More. Perhaps you are raising this strawman argument for the reason that most people raise strawman arguments. Would you care to tell us why you are raising this strawman argument, T.More?

"On the other hand, fair minded inquirers will be interested to learn that the officers themselves wrote the warrant, that it was reviewed by the prosecutor and approved by the magistrate without alteration."

Please tell us more about the warrant, T.More. This is a warrant such as that referred to in the 4th amendment to the US Constitution, right?

So why not simply tell us, T.More: Was there a box on the warrant that says "things to be searched" in the house pursuant to the arrest? Was the box checked? Was there a list of such "things" to be searched incident to the warrant below the box? What appeared on that list? Did the warrant incorporate every item requested to be searched in the affidavit by reference, explicitly?

I look forward to your answers to these simple factual questions, T.More.

"I imagine they are saying to officers that the system will be better served if they check all the boxes rather than just stapling their plain intentions to the warrant they also write. Fair enough."

Yeah, it is fair. Police don't sign warrants for themselves.

"What cannot be argued, I think, is that the case shows an insenstivity to the rights of 10 year old girls vis-a-vis strip searching. Those rights are undisturbed by the case."

Of course the right for an unarrested unaccused individual to be free from a police strip search without warrant are undisturbed by the case. Alito's bizarre opinion was a solo piece of wankery in dissent.

But the case certainly does show an "insenstivity to the rights of 10 year old girls vis-a-vis strip searching" T.More because Judge Alito made the same dismissive comments to the attorney representing the girl that you made to all of us here.

The issue can boiled down to: because some drug dealers have been known to stick drugs in a kids panties, can cops strip search kids when the warrant does not clearly and umambiguously authorize them to do so? Alito speaks directly to this issue in his dissent (rather strangely, if one seriously believes that the case has nothing to do with strip-searches of kids on the premises of an alleged drug dealer).

Alito says YES to this question. Why? Because Alito believes that the War on Drugs is more important than any harm that results from allowing cops to strip search a few little girls now and then without a warrant expressly and unambiguously authorizing those cops to do so. This is obvious and those who insist on pretending otherwise are dissembling.

Just out of curiousity, T.More: have you ever taken recreational drugs? Do you know anyone who has? Do you have any respect for such people or do you think they belong behind bars? Have you ever been strip-searched? If not, do you know someone who was strip-searched by police against their will for items that were not present? Did they tell you how the search made them feel? In the opinion of the person being strip-searched, was it "worth it" in retrospect to "save future generations" from the "scourge" of illegal drugs?

Obviously, the answers to these particular questions are not relevant to the lack of sound reasoning in Judge Alito's dissent. But they are relevant to understanding why you might be inclined to kiss Judge Alito's cop-lovin' behind here.

Perhaps after you've come clean here we can discuss the "reasonableness" of our incredibly "intelligent" Judge Alito forgetting everything about CAP.

The Law Fairy

T. More, thanks for the link to the strip-searching case. I did a quick read and, while you're technically correct that it isn't "about" strip-searching, those who believe ten-year-old girls have a privacy right against being strip-searched have reason to be troubled by Alito's dissent.

Alito essentially tries to hide behind the technicality of what he argues is a valid warrant. He pretends that the case is really just about a warrant. To some extent, this is true -- if the warrant was invalid, then presumptively, a Constitutional right was violated. But just because a warrant incorporates something and is approved by a judge, does not make a warrant presumptively constitutional. To say it did would be to place the direction of constitutional law in the criminal context squarely in the hands of magistrate judges. In which case, we would have partisan bickering and snobby postulating about the "qualifications" of magistrate judges, who we in the big ivory towers know are only magistrate judges because they weren't good enough to be "real" judges.

Just to be clear, that last bit was sarcastic. I have nothing against magistrate judges -- but I despise arrogant federal-judge-worship-slobbering.

Getting back on track: whether or not the warrant encompassed, or could reasonably be read as encompassing, a search of all individuals is besides the point. Let's say Alito is right, and the warrant on its face purported to make such an authorization. What if John Doe had kidnapped a six-year-old boy (I say boy since this seems to get the more visceral reaction nowadays, what with Catholic priests and Michael Jackson to worry about) and locked him in the basement? Would the officers have the right to search this child, held there against his own will? Do these cops have a right to stick their fingers up his ass because he had the bad luck to be locked up in an alleged drug dealer's basement? Apparently, Alito has no problem with this -- or, maybe he's more willing to protect little boys than little girls. Could be either way, I suppose.

My basis for saying this? Check out the last paragraph or two of the dissent. Alito pretends to be bothered by the horrific violation of this little girl's constitutional rights but saying he finds it "distasteful." Oh how compassionate. He quickly moves on to say that, nonetheless, it's constitutional.

That's it.

No in-depth inquiry into the privacy rights of little girls. Nothing approaching the scale of his concern with making sure the cops get the full benefit of their poorly-written warrants.

This is why we should be concerned with Alito. Why does law enforcement get five whole pages of concerned jurisprudential pontificating when a little girl, who for all we know will live the rest of her life feeling like she was sexually molested, gets only two paragraphs?

This is deeply, deeply troubling.

Leif

Law Fairy and Deborah,

I'm afraid you're a bit overheated. The Doe opinion itself states that the mother and daughter were instructed to lift their shirts, subjected to a pat down, told to drop their pants, asked to turn around, and then returned back to the ground floor. The search was conducted by a female officer. There was no "molestation" and there was certainly no penetration as you have so needlessly intimated. This was not a "strip search" in the classic sense of full nudity and exploration of body orifices. "Distasteful" seems to capture the situation quite accurately.

Doe boils down to this --
Majority: The face of the warrant didn't say that they wanted to search other people in the house. Therefore, a reasonable officer wouldn't think - and the better, bright-line rule is that - the warrant authorized searches of other people.
Alito: The long-standing rule is that a warrant incorporates an attached affidavit. The attached affidavit stated that the officers wanted to search other people on the premises. Therefore, a reasonable officer would think - and the better, bright-line rule is that - the warrant authorized searches of other people.

Does this indicate deference to the executive? Yes. Is it excessive deference? Reasonable minds can differ. Alito correctly summarizes the long-standing rule regarding affidavit incorporation; the majority accurately points out the long-standing rule regarding the scope of warrants based on their facial contents and notes that there has to be a tie-breaker. The majority chose a different one than Alito. Saying that this is some indicator that Alito approves of government-authorized sexual abuse of children is irresponsible and excessive.

Deborah Spaeth

Leif

This was not a "strip search" in the classic sense of full nudity and exploration of body orifices.

Under the "reasoning" in Judgel Alito's dissent, what difference would this make? Let me answer that for you: none. Why? Because "sadly" the "truth" is that "history" shows that some drug dealers told their female companions to hide the bag of coke in their vaginas.

"The long-standing rule is that a warrant incorporates an attached affidavit."

Really? Even where the warrant does not expressly say that the "attached affidavit" is incorporated into the warrant? Is that the "longstanding rule"? If that's the case, then it must be the "longstanding rule" that everything requested in the warrant is authorized unless expressly disclaimed by the warrant. Right? Did Judge Alito provide any evidence which clearly supports this "longstanding rule"? Can T.More provide us with such evidence?

We're only talking about the 4th amendment after all. I would think such "rules" would need to be very "longstanding" and very well-known -- almost universally -- if they were used to trump the 4th amendment's prohibitions. So what was Judge Alito's evidence?

"Does this indicate deference to the executive? Yes. Is it excessive deference? Reasonable minds can differ."

Really? I'm still waiting for the "reasons" that this deference should be granted.

Now I'm hearing some garbage about a "longstanding rule" about everything in an affidavit being incorporated into a warrant even when the warrant does not expressly incorporate the affidavit and (in fact) expressly recites a list of items to be searched which differes from that recited in the affidavit.

That doesn't seem "reasonable" to me. But then again, I think the 4th amendment and rights of Americans -- children especially -- to be free from strip searching whenever the police find it convenient to do so are more important than catching some alleged drug dealer today rather than, say, tomorrow or next week.

"Saying that this is some indicator that Alito approves of government-authorized sexual abuse of children is irresponsible and excessive."

Ah, except that no one is saying that, Leif. So we have another Alito defender floating a strawman! Why do you find it necessary to do so, Leif? Do you think that we "irresponsible" types won't notice?

Deborah Spaeth

I really appreciate this strawman built by Leif:

"Saying that this is some indicator that Alito approves of government-authorized sexual abuse of children is irresponsible and excessive."

Meanwhile, accusations that John Kerry shot helpless Vietnamese people in the back and lied about his activities in Vietnam are "important" to "determining his fitness for the Presidency."

Do we all understand this? It would be "irresponsible" to suggest that Alito holds extremist views about what police can do to little girls when they are searching for drugs, but to spend a month before an election "investigating" whether John Kerry murdered people in Vietnam and lied about it later because a lying self-contradicting hacks wrote a book saying so is "responsible"?

The "liberal" media strikes again.

Leif

Deborah,

I am troubled that you are unable to grasp even the basic tenets of reading comprehension. The reference to "strip searches" is important not because it would draw a distinction in the conclusion - it might have, it might not have - but becasue of the spin that people arguing about this case try to impart using the phrase. People who think of "strip searches" think of fully-nude body cavity searches. That is not what happened here, and it has been a favorite tactic of those opposing the Alito nomination to imply that it did. They are wrong. Ramble and accuse all you like about straw men, but before you do - preferably, before you post another digressive tangent on John Kerry - refer to this paragraph of The Law Fairy:

"Let's say Alito is right, and the warrant on its face purported to make such an authorization. What if John Doe had kidnapped a six-year-old boy (I say boy since this seems to get the more visceral reaction nowadays, what with Catholic priests and Michael Jackson to worry about) and locked him in the basement? Would the officers have the right to search this child, held there against his own will? Do these cops have a right to stick their fingers up his ass because he had the bad luck to be locked up in an alleged drug dealer's basement? Apparently, Alito has no problem with this -- or, maybe he's more willing to protect little boys than little girls. Could be either way, I suppose."

As to your other overheated rants masquerading as discourse, I have neither the time nor the inclination to exhaustively cite the cases, but FindLaw is a good place for you to start. As for why there should be deference - because the Executive is as equally entitled to interpret the Constitution as the Judiciary. Because, in this case - a civil lawsuit growing out of a police function - there is a notable distaste for using after-the-fact judicial scrutiny to impose monetary penalties on officers who undertake a good-faith reading of their duties, authorizations, or legal obligations.

But you don't really want to discuss the origins of or reasoning behind the qualified immunity doctrine. You want to smear Samuel Alito as a radical extremist bent on enforcing torture against American citizens and undermining race- and color-neutrality in the public sphere.

The Law Fairy

Leif,

Sorry you found my opinion "overheated." Being a woman with uncontrolled emotions -- you know, we're all like that -- when I hear about little girls being subjected to inappropriate treatment, and people pretending the only relevant issue is whether the warrant itself said the cops could do this, well, it upsets me a little. But, hey, I'm crazy like that. I do crazy things like stick up for little girls since it's hard for them to stick up for themselves. Yup, crazy ol' Law Fairy.

Leif, here's a quote from your post:

"The search was conducted by a female officer. There was no "molestation" and there was certainly no penetration as you have so needlessly intimated. This was not a "strip search" in the classic sense of full nudity and exploration of body orifices. "Distasteful" seems to capture the situation quite accurately."

First of all, Leif, just because the opinion doesn't go into the details of the search, doesn't mean it was noninvasive. You really think all they had to do was "turn around"? What, because the plastic coke baggie will be dangling from their butts, in plain sight to the officer? It sounds a bit naive to me to think that there wasn't at least some prodding and poking to ensure there were no stashed drugs in the women's bodily orifices. If there weren't, what's the point of having them get undressed? Maybe they have cocain tattoos on their butts?

Second, Leif, you completely missed the point of my post. You can't have a case involving constitutional concerns about strip-searching and pretend that it all boils down to whether or not the warrant said they could do it. There are unconstitutional warrants. Just because a warrant is issued, does not make it constitutional. The problem with Alito's dissent is that he pretends that this is all there is to it. The fact that he barely talks about the strip search at all is precisely what's problematic. Read my earlier post over. I already made my argument, even supposing that Alito was correct and the warrant incorporated the affidavit by reference. My point was that, *even if* the warrant encompassed a strip search of the women, there is *still* a constitutional inquiry to be made there. Alito doesn't bother trying to make it. He brushes off the problems with strip searching an innocent little child. With all the obsession about what's inappropriate sex from conservatives like Alito (Federal Marriage Amendment, anyone?), it's disconcerting how much more important, apparently, is the Drug War than actually protecting small children from potentially psyche-shattering sexually suggestive experiences.

It's one thing to favor executive power. You can make arguments about how bad that is. But can you honestly sit there with a straight face and say that the executive's power is so vast as to afford access to children's private parts?

The Law Fairy

Oh -- another point I forgot to make: just because a woman did the search doesn't mean it couldn't be molestation. Unless you want to try to make the argument that men can't molest boys.

Anyone? Anyone?

Leif

Law Fairy,

My apologies if you took "overheated" to be some sort of sexist dig. It was not intended as such.

We must note, at the outset, that while this case involved the constitutionality of a search, that was not the issue being decided. The issue before the Third Circuit was whether a reasonable officer would have believed that the warrant authorized the searches in question. This was a civil suit for money damages, and the plaintiffs were attempting to overcome the defendants' qualified immunity defense. The question was: ASSUMING the search was unconstitutional, are the officers excused from civil liability in a suit for money damages arising from the search?

I assume that there was no penetration because that would have been a different level of invasiveness than a pat-down. I assume that something of that nature would have been mentioned in the opinion - especially given that this was a case about the reasonableness of the officers' actions. A "skin check" (I have no idea what the term of art would be) or pat down is one thing; digital probing of sensitive orifices is another. I strongly recall reading cases indicating that body cavity searches are allowed without warrants only in extreme circumstances; certainly, having secured the home and having custody and control over mother and daughter, those circumstances would not have been present in Doe, and I find it hard to believe that the Third Circuit would not have mentioned acts of penetration, especially given that they were mentioned nowhere in the affidavit.

The case was not about whether the warrant was unconstitutional. It was about whether the officers' view of the warrant was reasonable. The case you want to argue about was implicated by Doe; it was not Doe.

Leif

A red herring, LF: I made the original point to suggest that the police attempted to show an appropriate level of deference for the mother's and daughter's privacy. They did not simply burst in, push people to the ground, and start pawing off nightclothes.

Leif

Apologies for posting three times in a row. I was unclear above - Doe itself does not characterize itself as solely concerned with qualified immunity. However, given the qualified immunity holdings, one could characterize the constitutionality holdings as dicta, which is the position I assumed for argument. I should have been more clear; the characterization is mine, not Judge Chertoff's or Judge Alito's.

Deborah Spaeth

Leif

"there is a notable distaste for using after-the-fact judicial scrutiny to impose monetary penalties on officers who undertake a good-faith reading of their duties, authorizations, or legal obligations"

That's nice. But we were talking about the constitutionality of the strip search of the ten year old girl without a warrant which expressly authorizes that search?

Whether someone should be allowed to collect damages for an officer's "good faith" violation of the constitution (or even a willful violation) is a separate issue.

And I think you aware of this fact, Leif. You seem to be trying to change the subject. First the case wasn't about strip searches of ten year olds (even though Alito's addresses the issue directly). Now it's not even about whether a "common sense" interpretation of a crappy warrant is constitutional. Suddenly it's about whether police officers can be successfully sued for their "good faith" reliance such crappy warrants.

I call this "moving the goalposts" Leif. Please stop it.

"But you don't really want to discuss the origins of or reasoning behind the qualified immunity doctrine."

Yeah, you're right. That's not what's interesting about this case. But we could probably all agree whose side Alito will choose in any case which addresses whether a law-enforcement institution is entitled to "qualified immunity" right, especially if the case tangentially involves scary illegal drugs, right? Or is that "impossible to predict"?

"I have neither the time nor the inclination to exhaustively cite the cases"

Hee hee. That's ironic in light of all the flak that Professor Stone has been receiving. Was I asking for case citations anyway, Leif? I don't reall doing so.

I am asking for evidence of this "long standing rule" that everything in an affidavit being incorporated into a warrant even when the warrant does not expressly incorporate the affidavit and (in fact) expressly recites a list of items to be searched which differes from that recited in the affidavit.

I would have guessed that Alito would have cited reams of such evidence in his dissent. Are you saying he did not do this? That would surprise me because if, in fact, this "rule" was so "longstanding," such evidence should be very easy to come by.


The Law Fairy

Leif -- sorry, I may have overreacted a bit to the "overheated" comment.

I still disagree with your assessment of what the court's opinion was "about." Here's a quote from the opinion:

"To determine in this case whether the officers have lost their immunity, we must engage in a two step analysis. First, we must decide “whether a constitutional right would have been violated on the facts alleged . . . .” Saucier v. Katz 533 U.S. 194, 200 (2001). Because we consider an appeal by the officers from the denial of their motion for summary judgment, we must evaluate the undisputed facts based on the summary judgment record, drawing all inferences in favor of the plaintiff. Behrens, 516 U.S. at 309; Torres, 163 F.3d at 170. Second, if we believe that a constitutional violation did occur, we must consider whether the right was “clearly established.” Saucier, 533 U.S. at 201; see Groh v. Ramirez, 540 U.S. , No. 02-811, slip op. at 12 (U.S. filed Feb. 24, 2004).2 The question is “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202." (This is from page 5 in the adobe file T. More provided a link to a while back)

Granted, whether or not a reasonable officer would think it was a validly issued warrant will be relevant to this inquiry; but the issue is still whether a constitutional right was clearly violated.

You have a point in that searching bodily cavities is different from a pat down. However, the court's description of the incident is hardly helpful. I suspect the court was uncomfortable with the gritty details. I could be wrong, of course, but I'm convinced enough that I would put money on it. From the description all she did was pat their pockets and stare at them, naked. That may not be as violative of their bodies -- but it's almost weirder. It would creep me out, that's for sure.

At any rate, the troubling thing about this, from my perspective, is that Judge Alito doesn't really even seem bothered by this. Here's the relevant part from his dissent:

"In sum, the District Court erred in denying the defendants’ motion for summary judgment. I share the majority’s visceral dislike of the intrusive search of John Doe’s young daughter, but it is a sad fact that drug dealers sometimes use children to carry out their business and to avoid prosecution. I know of no legal principle that bars an officer from searching a child (in a proper manner) if a warrant has been issued and the warrant is not illegal on its face. Because the warrant in this case authorized the searches that are challenged – and because a reasonable officer, in any event, certainly could have thought that the warrant conferred such authority – I would reverse."

He brushes aside the privacy concern. Granted, this doesn't bear direcly on Professor Stone's executive power point, but it bears on something just as important (in my opinion) -- and I'm not Professor Stone :) Alito claims to dislike what happened to this innocent child, yet he doesn't even *try* to find a legal problem with it. I understand being constrained by precedent -- but wouldn't a normal, decent person scour the law books (or, in Alito's case, have his prestigious well-regarded clerks scour the law books) to find a reasonable problem with this? He barely acknowledges the possibility -- but he can't honestly say that there is no possibility that it would be unconstitutional on this ground alone. I'm troubled that Alito is more concerned about getting Big Bad Drug Dealers than about protecting individual rights. Others could disagree -- but I think it's a more than valid reason to worry about placing him on the court. In addition, of course, to Prof. Stone's executive deference concerns.

Deborah Spaeth

Leif

"I made the original point to suggest that the police attempted to show an appropriate level of deference for the mother's and daughter's privacy."

I vaguely recall something about plastic gloves being worn -- so thoughtful!

Leif

Deborah:

It's included in the majority opinion:

"We recognize that there are
decisions in which an affidavit has been
used to save a defective warrant even
when it has not been incorporated within
that warrant. . . . The first embraces those
circumstances in which the warrant
contains an ambiguity or clerical error that
can be resolved with reference to the
affidavit."

It's also right at the beginning of Alito's dissent:

"Search warrants are 'normally
drafted by nonlawyers in the midst and
haste of a criminal investigation.' United
States v. Ventresca, 380 U.S. 102, 108
(1965). Consequently, they are to be read
'in a commonsense and realistic fashion.'
Id." He then goes on to descibe how the warrant incorporated portions of the affidavit and should be read to have incorporated the entire thing.

Arguments that a judge didn't cite stuff to your satisfaction are facile. It's the quality, not the amount, of citations that are important.

Deborah, my posts may not be models of clarity - I am not writing for a law review here, but trying to describe the tip of an iceberg of argument. If you want additional clarification, please ask for it. Otherwise, I ask that you (a) answer the post or (b) ignore it. Your mischaracterization of my statements, your attempts to haul in irrevelant extravagances (John Kerry? "scary illegal drugs?"), and your willful accusations of bad faith are as tiresome for me as they are for the other people you enjoy insulting on this blog.

Deborah Spaeth

Alito plays the game in his dissent:

"I know of no legal principle that bars an officer from searching a child (in a proper manner) if a warrant has been issued and the warrant is not illegal on its face."

Is Alito saying that children of a suspect can be searched incident to any search of the suspect? Or is Alito suggesting that in this particular case, the warrant was found constitutionally valid for the purpose of searching children by the majority?

Surely those are the only straightforward readings of Alito's statement. Why else would Alito be talking about some "legal principle" beyond the principle that a warrant that expressly lists person X to be searched doesn't permit the strip-searching of the underage child of person Y merely for being in the same building without violating the 4th amendment?

Deborah Spaeth

Leif, in the same paragraph:

"Deborah, my posts may not be models of clarity" and "your mischaracterization of my statements."

Oh, so I'm supposed to assume that you might simply be inarticulate every time I address your arguments?

I'm sorry but that's not fair, Leif. If you can write clearly, please do so consistently.

Accusing me of "mischaracterizing" your admittedly unclear comments is beyond the pale, frankly.

Leif

LF,

I think that you hit on the crux of our disagreement:

"Alito claims to dislike what happened to this innocent child, yet he doesn't even *try* to find a legal problem with it. I understand being constrained by precedent -- but wouldn't a normal, decent person scour the law books (or, in Alito's case, have his prestigious well-regarded clerks scour the law books) to find a reasonable problem with this?"

Whatever a normal, decent person would do is beside the point. A judge's role is not to "scour the books" for support for what he thinks the right answer is - that's the advocate's job. A judge is to consider the weight of the law and the evidence on both sides before redering a decision, not to dig through Federal Reporters and U.S. Reports, hoping to find a string of quotes that he can deploy in support of the "right" answer.

Judge Alito analyzed the law dispassionately and in depth and reached a decision with which his two colleagues (and you) disagreed. I would be more troubled by him taking the approach you describe to reach the "right" decision than I am by him taking the right approach and reaching the "wrong" decision.

As for Judge Alito's general deference to executive power, I have no idea, but I don't see that this is a coherent "conservative" point - look at the difference in Thomas & Scalia and Rehnquist in Kyllo, for instance, or the Rehnquist/Thomas/Scalia (joined by Stevens!) split in Hamdi. Which of these opinions reflects a "conservative" outcome? The truth is that various strains of conservatism espouse different ideals about the proper role of executive authority, and different strains of "conservative" legal thought employ different methods to analyze whether those proper bounds have been traduced. If the objection is a blanket one that Judge Alito is always going to side with the government - that he will vote outcome instead of reasoning or process - I disagree.

Leif

Deborah,

As is obvious from the context, he is talking about a warrant that authorized a search of persons present in a particular place. His next sentence makes that obvious:

"Because the warrant in this case authorized the searches that are challenged – and because a reasonable officer, in any event, certainly could have thought that the warrant conferred such authority – I would reverse."

It is this type of mischaracterization of which I wrote. The posts are above; readers may judge the validity of my stance for themselves. Again, if I am unclear, ask, challenge, or ignore. Your knee-jerk imputation of the worst-possible spin is both tiresome and ineffective, and particularly frustrating as your posts frequently show nuggets of thoughtful insite. Wading through the spite to try to address them is mentally exhausting.

Deborah Spaeth

Leif

"[Alito] goes on to descibe how the warrant incorporated portions of the affidavit and should be read to have incorporated the entire thing."

Yeah, well that's what the case is about.

So where is the *evidence* for the existence of this "longstanding rule" that everything in an affidavit is properly incorporated into a warrant even when the warrant does not expressly incorporate the affidavit and (in fact) expressly recites a list of items to be searched which differs from that recited in the affidavit???

As to this:

"The first embraces those
circumstances in which the warrant
contains an ambiguity or clerical error that
can be resolved with reference to the
affidavit"

there was no ambiguity or clerical error in the warrant about who was to be searched incident to the warrant. None. Zilcho.

What Alito and the cops wanted to do in this case was insert their beliefs about what the magistrate intended into the warrant where express authorization for those searches simply did not exist.

Ironically, for all the conservative talk of "activist" judges, Alito evidently favors not only an activist construction of the 4th amendment but activist interpretation of warrants by police.

Deborah Spaeth

Leif, Alito's second sentence does nothing to help Alito out of his mess:

"Because the warrant in this case authorized the searches that are challenged"

But it only does so in Alito's mind.

Leif

Deborah,

"So where is the *evidence* for the existence of this 'longstanding rule' . . .?" I pointed you to the sections of Doe that discuss it. I have already stated that I have neither the time nor the inclination to return to my old Criminal Procedure texts to gather citations for you. If you disagree with my statement or my interpretation of the law, fine. Do not pretend that I did not address this point.

"'[Alito] goes on to descibe how the warrant incorporated portions of the affidavit and should be read to have incorporated the entire thing.'

"Yeah, well that's what the case is about." Which, of course, is why he went on to describe it. Was he not supposed to write about the issue in the case? I don't understand your point here.

The ambiguity was apparent to Alito - the warrant descibed probable cause to search everyone in the house, but requested only a search of Doe. Why mention probable cause to search others if you don't want to search them? Alito saw that as an ambiguity - "Something extra is included, or something missing is absent" - and resolved it by looking to the warrant. You see no ambiguity, which is not just a plausible reading, but the one that the Third Circuit adopted. Fine, but adopting the contrary stance does not make Sam Alito some kind of dangerous radical.

"Ironically, for all the conservative talk of 'activist' judges, Alito evidently favors not only an activist construction of the 4th amendment but activist interpretation of warrants by police." This is a good example of a comment that can be biting without being insulting. Thank you.

The Law Fairy

Leif, I'm not proposing that judges abandon their duty to follow the law. If the law says you can violate little girls, well, that's what the law says (though I would argue till I'm blue in the face that the Constitution absolutely prohibits this, because, quite simply, it *does*). I'm saying two things: 1) Alito got it wrong. 2) Even if there's an argument that maybe neither side is really right or wrong on this, he should have sought an answer that was *both* legal *and* right.

I understand your problem with outcome-based jurisprudence. It's one most people disapprove of, until the Court is dominated by persons of a certian political ilk. I'm not accusing you of this, Leif; I'm just stating it as a statistical tendency.

I find this statement from your post problematic:

"Judge Alito analyzed the law dispassionately and in depth and reached a decision with which his two colleagues (and you) disagreed. I would be more troubled by him taking the approach you describe to reach the "right" decision than I am by him taking the right approach and reaching the "wrong" decision."

I truly hope that your reason for saying this is simply that you don't understand the approach I'm taking. I don't advocate sacrificing principle for morality -- indeed, I think that doing so is itself immoral. Rather, I'm saying that there *is* a valid constitutional argument here that what happened to this girl was *wrong*. That Alito doesn't even try to make it -- that he doesn't even *address* it -- is incredibly troubling. In fact, this to me reeks of agenda, much more than would Alito deciding to research this issue to see if there was a more definitive answer out there.

On the face of this case, there was a constitutional issue even if the warrant validly incorporated the affidavit. It didn't need to be decided on these grounds because of the majority's holding that the warrant did not -- but had the majority held differently, there would have been a second step to this analysis. That Alito doesn't bother taking that second step is not just bad jurisprudence, it's morally troubling.

Or, for those who find bad jurisprudence more offensive than moral peril, just reverse those two to make it more dramatic a juxtaposition.

In my mind, this actually makes *Alito* the one driven by outcomes. He's so beholden to the drug enforcement interests that a potential serious violation of a *child's* constitutional rights doesn't sway him, even a little, to ask: "did something really wrong happen here?"

Dan McGuire

LF wrote "On the face of this case, there was a constitutional issue even if the warrant validly incorporated the affidavit. It didn't need to be decided on these grounds because of the majority's holding that the warrant did not -- but had the majority held differently, there would have been a second step to this analysis."

LF, I'm no qualified immunity expert, but I don't think that is correct. As teh majorit wrote, "If a warrant did indeed authorize a search of Jane and Mary Doe, then the officers were entitled to rely upon it to satisfy the probable cause requirement, and there was no constitutional violation."

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.

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