The Smear that Failed
TUCKER, WILLIAM
The Smear that Failed Judge Alito, when did you stop molesting children? BY WILLIAM TUCKER OF ALL THE SMEARS aimed at Supreme Court nominee Samuel Alito, perhaps none was more demagogic than the...
...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...
...McGinley was convicted for drug possession and served a probationary sentence...
...They conclude that the warrant should be read in "common sense" fashion...
...His reasoning had no impact...
...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...
...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...
...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...
...The case is indeed interesting, but not for the reason Alito's critics think...
...Because if we had a rule like that, then where would drug dealers hide their drugs...
...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...
...It will be nice to have another justice on the Supreme Court who can put aside personal predilections and stick to interpreting the law...
...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...
...It was not a "strip-search," as usually reported...
...Just for good measure, the judges threw in that they didn't think the search was justified anyway...
...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 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...
...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 William Tucker, a contributing editor to the American Enterprise, is writing a book on trial lawyers...
...In a preliminary hearing, the judge ruled that the officers must stand trial because their conduct violated "clearly established" constitutional rights of the plaintiffs...
...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...
...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...
...underwear...
...Nothing in that portion of the printed warrant refers to any other individual...
...Because they said different things, they must be considered contradictory...
...It's impossible to fit everything we want in these little boxes they give us...
...T]he majority employs a technical and legalistic method of interpretation that is the antithesis of the 'commonsense and realistic' approach that is appropriate...
...It overturned the murder conviction...
...The judge signed the warrant and its accompanying affidavit...
...As he said in last week's hearings, "I wasn't happy that a 10-year-old was searched...
...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's dissenting opinion cut through this tortured logic with a few clear-cut observations...
...The case came up repeatedly last week in the questioning of Democratic senators Ted Kennedy and Patrick Leahy...
...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...
...The Massachusetts Supreme Court ruled that, because the warrant was written on the wrong form, the incriminating evidence was inadmissible...
...Ali-to, for his part, was also displeased with the search...
...it is a difference as to scope...
...Now, there wasn't any claim in this case that the search was carried out in any sort of abusive fashion...
...The affidavit was expressly incorporated into the warrant...
...The officers appealed to the federal Third Circuit...
...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...
...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 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...
...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...
...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...
...That is not a discrepancy as to form...
...As you can see, that box is filled," testified one officer in court...
...You can't include everything...
...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...
...When four officers arrived at his door, they found his wife and daughter present...
...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 hairsplitting technicalities to achieve the results they desire...
...In the end, though, Alito correctly understood the Supreme Court precedent that applied in the case...
...BY WILLIAM TUCKER 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...
...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 was found on the women, but police did turn up marijuana and traces of methamphetamine in the house...
...The incident occurred in a small coal town in Schuylkill County in 1998...
...In this case, the majority was obviously repelled by the idea of a full-body search of a minor—a perfectly understandable response...
...The good-faith exemption is the most common defense against small procedural errors in search warrants...
...Not having the keys to the courthouse, the judge improvised a criminal warrant on a form intended for drug cases...
...As presented to the three-judge panel, the case revolved around the following issue...
...In order to continue their application, the officers attached an affidavit in which they added a request to search "all occupants" of the house...
...Both warrant and affidavit were reviewed by the district attorney's office and signed by the judge...
...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...
...And it is a difference of significance...
...The language is taken from the Fourth Amendment and officers must be very careful in filling it out...
...But, according to the majority, the warrant and affidavit could not be read as a single document...
...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...
...Police obtained a warrant to search the home of Michael McGin-ley, a disbarred lawyer with a history of drug and assault arrests who was believed to be dealing in amphetamines...
...Under these circumstances," Ali-to concluded, "the 'commonsense and realistic' reading of the warrant is that it authorized a search of all occupants of the premises...
...I don't think there should be a Fourth Amendment rule . . . that minors can never be searched...
Vol. 11 • January 2006 • No. 18
