- The Washington Times - Wednesday, November 16, 2005

Supreme Court nominee Samuel A. Alito Jr., under fire from Democrats because of his writings on abortion rights, once favored allowing police to strip-search a 10-year-old girl despite questions about their warrant.

The case, Doe v. Groody, is among dozens of sensitive topics he wrote about as a federal appeals court judge. It dealt with police who conducted the strip-search while executing a warrant on the girl’s father — a suspected methamphetamine dealer.

While the affidavit used to obtain the warrant sought permission to search all occupants of the house, the wording of the actual warrant signed by a magistrate only gave permission to search the suspect.

Encountering the suspect, his wife and their 10-year-old daughter upon entering the house, police called a female officer to the scene to strip-search the mother and daughter in an upstairs bathroom.

Nothing illegal was found, and the suspect, John Doe, brought suit against the officers, accusing them of conducting an illegal search on his wife and daughter because the warrant only authorized a search of him.

Judge Alito dissented from a majority 3rd U.S. Circuit Court of Appeals ruling, which found that the search “for evidence beyond the scope of the warrant and without probable cause violated [the] clearly established Fourth Amendment rights” of the wife and daughter.

Judge Alito argued that under the “best reading” of the warrant, the strip-search was authorized. The officers were immune to the lawsuit, he wrote, because “even if the warrant did not contain such authorization, a reasonable police officer could certainly have read the warrant as doing so.”

“I share the majority’s visceral dislike of the intrusive search of John Doe’s young daughter,” he said. “But it is a sad fact that drug dealers sometimes use children to carry out their business and to avoid prosecution.”

His argument in the case, which came before the 3rd Circuit last year, has drawn mixed reactions from legal scholars.

“At the very least, it complicates the claim that he somehow is an originalist or textualist or someone who is resisting liberal attempts to change the meaning of the Constitution,” said Jamin Raskin of American University’s Washington College of Law.

“The Fourth Amendment requires that search warrants describe the place to be searched and the persons or things to be seized,” Mr. Raskin said. “He was willing to depart from the text of the Fourth Amendment to allow for much broader police powers in searching people’s homes.”

Roger Pilon, director of the Center for Constitutional Studies at the libertarian Cato Institute, said Judge Alito “seemed to be bending over backwards to make the best case he could for the police officers.”

The concern, he said, “is whether Alito may be too deferential to government in his approach to cases.”

“After all, he has been in government his whole professional life. He has seen the world largely from the government perspective,” Mr. Pilon said. “This could, and I emphasize could, raise a concern about how he will read cases once he’s on the Supreme Court that pose the individual against the government.”

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