The Magazine

The Smear that Failed

Judge Alito, when did you stop molesting children?

Jan 23, 2006, Vol. 11, No. 18 • By WILLIAM TUCKER
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OF ALL THE SMEARS AIMED at Supreme Court nominee Samuel Alito, perhaps none was more demagogic than the attack on his opinion in a case involving the body search of a 10-year-old girl during a Pennsylvania drug bust. Leading up to the Senate Judiciary Committee hearings, the Alliance for Justice, a Washington-based group, ran a 30-second TV ad charging that Alito "even voted to approve the strip search of a 10-year-old girl." The case came up repeatedly last week in the questioning of Democratic senators Ted Kennedy and Patrick Leahy.

The case is indeed interesting, but not for the reason Alito's critics think. In fact, it was the two majority judges on the Third Circuit panel who responded to the emotional aspects of the case and tortured the law to reach their desired conclusion.

The incident occurred in a small coal town in Schuylkill County in 1998. Police obtained a warrant to search the home of Michael McGinley, a disbarred lawyer with a history of drug and assault arrests who was believed to be dealing in amphetamines. When four officers arrived at his door, they found his wife and daughter present. Having specifically requested permission to search "all occupants" of the house, they summoned a female officer, who took the mother and daughter to an upstairs bedroom and performed a whole body search, including a pat-down while they were in their underwear. (It was not a "strip-search," as usually reported.) Nothing was found on the women, but police did turn up marijuana and traces of methamphetamine in the house. McGinley was convicted for drug possession and served a probationary sentence.

He also sued the police for several million dollars for allegedly violating his wife and daughter's constitutional rights, in a case that would become known as Doe v. Groody. (He filed suit as "John Doe," but since McGinley has become a spokesman against Alito's confirmation, it seems fair to include his name here.) In a preliminary hearing, the judge ruled that the officers must stand trial because their conduct violated "clearly established" constitutional rights of the plaintiffs. The officers appealed to the federal Third Circuit.

As presented to the three-judge panel, the case revolved around the following issue. In applying for the search warrant, the two officers had filled in a box entitled "specific description of premises and/or persons to be searched." The language is taken from the Fourth Amendment and officers must be very careful in filling it out. Warrants are routinely thrown out by appeals-court judges who decide that the application did not adequately describe "the place to be searched, and the persons or things to be seized."

By the time the officers had finished describing the suspect's premises and listing his name, address, physical description, and Social Security number, they had no room left to include any further information. "As you can see, that box is filled," testified one officer in court. "You can't include everything. . . . It's impossible to fit everything we want in these little boxes they give us."

In order to continue their application, the officers attached an affidavit in which they added a request to search "all occupants" of the house. Fulfilling the Fourth Amendment's requirement that "no warrants shall issue, but upon probable cause," they stated that, in their experience, drug dealers, when faced with "impending apprehension," often gave evidence to other persons present in the hope that "said persons will not be subject to search when police arrive." The judge signed the warrant and its accompanying affidavit.

The Third Circuit majority decided, however, that the warrant and its accompanying affidavit could not be read as a single document:

The face of the search warrant here [emphasis added], 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. . . . 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.

But, according to the majority, the warrant and affidavit could not be read as a single document. Because they said different things, they must be considered contradictory. "[T]he language of the warrant is inconsistent with the language of the affidavit, because the former does not grant what the latter sought--permission to search 'all occupants' of the house. That is not a discrepancy as to form; it is a difference as to scope. And it is a difference of significance."