Alito: "But the issue in the case was not whether there was some sort of rule that minors cannot be searched. That's not part of Fourth Amendment law as I understand it. And there would be a very bad consequence if that were the rule, because where would drug dealers hide their drugs?
Minors would then become -- they would become the repository of the drugs and firearms."
(By similar "standard of reasoning" -- i.e. consideration of the "aftermath effect" -- why would Alito NOT reject overturning Roe vs Wade, since MORE abortions will occur (illegally) and MORE mothers will die (from illegal abortions) -- i.e. more "life" will be "wasted" -- in the aftermath of a reversal of the law, purportedly in an intent to "save life"?)
Source:
Transcript - U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court, Part II of III, CQ Transcriptions, Thursday, January 12, 2006...
DURBIN: In the Leveto case, a veterinarian and his wife, subject to Internal Revenue Service agents coming at 6:30 in the morning, detaining him, patting him down in the Internal Revenue Service investigation, holding him for six hours in his office.
Then they went to his home, found his wife in her nightgown, patted her down, held her incommunicado for a period of time.
And they brought a civil suit and said, "The government went too far. They didn't have the authority to do those things, to pat us down and search."
And your conclusion, writing the majority opinion, was, "Yes, they did go too far." There was a question about immunity, which I won't touch on, but at least from the Fourth Amendment point of view, you said that the government went too far.
Now, of course, the notorious case that's come up time and again of Doe v. Groody. In that case, of course, it's about a year earlier. There's a search of the premises and a John Doe search warrant looking for someone who might have been involved in drug dealing.
An affidavit attached to the warrant says that it could also involve persons on the premises who may be hiding drugs, but the affidavit is not part of the search warrant; it's maybe incorporated in general terms.
The majority of the court says that it was not incorporated; Judge Chertoff writing for the majority. Particularly egregious is the fact that a mother and her 10-year-old daughter were strip- searched pursuant to that search warrant.
In that case, you concluded that that was warranted, that was acceptable search.
The witness who comes before us is going to say, "Judge, how can you do this? You have a veterinarian here and his wife, IRS search. In their case, you said, 'They went too far when they patted them down and searched them.' The next case, involving a 10-year-old girl in a strip-search, you say, 'They didn't go too far.' How would you compare the two and draw the distinction between them?"
ALITO: Well, the Leveto case involved the issue of how long they could detain people who were present on the premises while they executed a search of the premises. And they detained these people for a very long time. I don't remember...
DURBIN: Six hours or more.
ALITO: It maybe even have been longer. It was a very long period of time.
There was no warrant for their arrest. There was no claim that there was a justification to seize them, other than the fact that they were present on the premises at the time when the search was being executed.
The Doe v. Groody case involved the question of the interpretation of a warrant.
ALITO: And the standard that is to be applied there -- the Supreme Court has told us -- is a practical, common-sense instruction. A warrant is not to be interpreted like a sophisticated commercial instrument that's drafted by parties.
The facts were -- you mentioned many of them -- that the affidavit prepared by the police officer said, "We have probable cause to search anybody who's found on the premises because we have probable cause to believe that this drug dealer will hide drugs on the people on the premises."
And they presented that to the magistrate and the magistrate issued the warrant, attached the affidavit to the warrant, and said, "The warrant is incorporated for" -- and I guess I left out the important fact that the officers -- they said, "We have probable cause to search anybody on the premises and that's what we want. We want authorization to search anybody on the premises."
And the magistrate granted the warrant and attached the affidavit to the warrant and said, "The affidavit is incorporated for the purpose of probable cause," which meant that the magistrate found that there was probable cause to search anybody on the premises.
But in the portion of the warrant where it said "person to be searched," it only mentioned...
DURBIN: John Doe?
ALITO: ... the John Doe. Now, if this were a bond, I think you would conclude that the only person you can search is John Doe. But it's a warrant.
And my view was that, viewing this from a practical standpoint, when the magistrate said, "Yes, you're right, there's probable cause to search anybody on the premises," those are the people he's saying can be searched.
But even if one didn't agree with that, you would go on to the qualified immunity question and say, "Could a reasonable police officer who says, 'I've got probable cause to search anybody who's on the premises and that's what I want,' and you go to the magistrate and the magistrate says, 'I agree with you on probable cause and here's your warrant,' could they reasonably think that the magistrate is saying, 'Yes, search anybody on the premises?'"
DURBIN: So did it go into your thinking this whole question of the dignity of the individual; that we are, in fact, dealing with a mother and a 10-year-old daughter who were subjected to the most intrusive search? Was that part of your thinking in terms of coming down in the minority position and saying it was all right to go ahead with the search? Did you consider that calculation?
ALITO: I was concerned about the fact they a minor had been searched, and I mentioned that in my opinion. And that's something that's very unfortunate.
But the issue in the case was not whether there was some sort of rule that minors cannot be searched. That's not part of Fourth Amendment law as I understand it. And there would be a very bad consequence if that were the rule, because where would drug dealers hide their drugs? Minors would then become -- they would become the repository of the drugs and firearms.
DURBIN: Or the issuing authority may be more specific in the warrant, which, as I understand it, is what the Fourth Amendment's all about.
ALITO: Well, the warrant here certainly could have been drafted better.
DURBIN: I think that's what the majority said.
ALITO: It is, but we have to take into account that these are police officers operating under time pressure. And the Supreme Court has told us that we are not to read these warrants like they're complicated commercial documents. We're trying to get at the practicalities of the situation.
DURBIN: I only have a few minutes, and I will try my best to end it, but I don't think I can do it in two.
...
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