The Magazine

The Smear that Failed

Judge Alito, when did you stop molesting children?

Jan 23, 2006, Vol. 11, No. 18 • By WILLIAM TUCKER
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

Just for good measure, the judges threw in that they didn't think the search was justified anyway. "For when we examine the affidavit on which the officers rely, it is doubtful that probable cause exists to support a search of John Doe's wife and minor daughter."

Alito's dissenting opinion cut through this tortured logic with a few clear-cut observations. Citing a 1965 opinion that warrants are "normally drafted by nonlawyers in the midst and haste of a criminal investigation," and should be read "in a commonsense and realistic fashion," he listed the fundamentals of the case:

* The warrant application clearly sought permission to search all occupants of the premises;

* The two officers, both of whom had extensive experience in drug raids, made a clear case that suspects often try to hide evidence on other people present;

* The affidavit was expressly incorporated into the warrant;

* Both warrant and affidavit were reviewed by the district attorney's office and signed by the judge.

"Under these circumstances," Alito concluded, "the 'commonsense and realistic' reading of the warrant is that it authorized a search of all occupants of the premises. . . . [T]he majority employs a technical and legalistic method of interpretation that is the antithesis of the 'commonsense and realistic' approach that is appropriate." His reasoning had no impact.

Interestingly, the majority decision clearly flouted the "good faith" exemption to the exclusionary rule on searches and seizures created by the Supreme Court in 1984. (The exclusionary rule, established by the Warren Court in 1961, says that evidence gathered in violation of the Fourth Amendment must be excluded from trial proceedings.)

In that 1984 case, known as Massachusetts v. Sheppard, the police had arrived at a judge's house on a Sunday night requesting a search warrant for a murder investigation. Not having the keys to the courthouse, the judge improvised a criminal warrant on a form intended for drug cases. The Massachusetts Supreme Court ruled that, because the warrant was written on the wrong form, the incriminating evidence was inadmissible. It overturned the murder conviction.

The Supreme Court, sick and tired of seeing murderers and rapists go free on such technicalities, finally attached a "good faith" exemption to the exclusionary rule. The Court ruled that if police believe they are following proper procedures, the exclusionary rule cannot be invoked because of small, technical errors in the paperwork. The good-faith exemption is the most common defense against small procedural errors in search warrants.

What Doe v. Groody proves is that, despite the Supreme Court's intentions, there are still lots of federal judges out there eager to use hair-splitting technicalities to achieve the results they desire. In this case, the majority was obviously repelled by the idea of a full-body search of a minor--a perfectly understandable response. What it didn't seem to mind was that, because of its decision, a small Pennsylvania town was forced to pay a six-figure damage settlement to its local speed freak. Alito, for his part, was also displeased with the search. As he said in last week's hearings, "I wasn't happy that a 10-year-old was searched. Now, there wasn't any claim in this case that the search was carried out in any sort of abusive fashion. . . . I don't think there should be a Fourth Amendment rule . . . that minors can never be searched. Because if we had a rule like that, then where would drug dealers hide their drugs?" In the end, though, Alito correctly understood the Supreme Court precedent that applied in the case.

It will be nice to have another justice on the Supreme Court who can put aside personal predilections and stick to interpreting the law.

William Tucker, a contributing editor to the American Enterprise, is writing a book on trial lawyers.