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Alito, and searches
Nov. 1st, 2005 09:49 amDoe v Groody has been getting a lot of play, because Alito (you know, the anti-Meirs candidate, the guy who's good for the court because he has a wealth of experience on the bench. Meirs, recall, was good because she would bring a new mindset, one that wasn't tainted by all that time spent resolving issues of law, but more important things, like public scatology [/snark]) penned a dissent which said a mother and daughter, in the house of a suspect, were subject to search.
The question wasn't actually whether such a search was reasonable; but whether the warrant allowed it; and (since it seems it didn't) if the officers were protected with qaulified immunity.
Having read the decision, I can say there is a case to be made for Olita's opinion. I can also say I don't like his opinion (and it isn't that I think the search, per se, was a bad idea; in light of the investigation.
So, I'll quote some from the decision.pdf, and then toss out my thoughts.
First, some background, the case hinges on a search made in the course of investigating an alleged meth-dealer (I don't know what the results of the search were, and I don't think the case changes if he was a dealer). The affidavit asked to search all occupants,
The search should also include all occupants of the residence as the information developed shows that [Doe] has frequent visitors that purchase methamphetamine. These persons may be on the premises at the time of the execution of the search warrant and many attempt to conceal controlled substances on their persons.
So far, so good. The application would seem to cover anyone present (though the specific application didn't mention family members, I can see where this wouldn't be beyond the scope of reason).
But the actual warrant, as issued, didn't include that language, which is where the question comes in. Olita's read on it goes thus,
While probable cause to search premises does not necessarily provide probable cause to search every person who is found on the premises, see Ybarra v. Illinois, 444 U.S.85 (1979), if there is probable cause to believe that all of the persons found on the premises possess on their persons either contraband or evidence of a crime, there is no reason why a warrant authorizing a search of all such persons should not be issued. In this case, as noted, the affidavit submitted in support of the warrant application claimed that there was probable cause to search all such persons, and the warrant expressly incorporated that claim.
The plaintiffs argue that there was no probable cause to search them, but whether or not there was probable cause, when a warrant is issued, officers who execute the warrant are entitled to qualified immunity unless "the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable." Malley v. Briggs, 475 U.S. at 344-45. That high standard is not met here.
Again, on it's face I can't really argue with it.
What bothers me is the implications this has, in reference to the actual thinking of the rest of the court.
From the actual opinion
The warrant provides the license to search, not the affidavit. Cases such as Bianco, Towne and Carlisle may allow us to rescue an overbroad warrant if the police forbear from exercising the full measure of its excessive scope. It does not follow that we can rescue an overbroad search if the police exceed the full measure of the warrant. Bluntly, it is one thing if officers use less than the authority erroneously granted by a judge. It is quite another if officers go beyond the authority granted by the judge. Were we to adopt the officers’ approach to warrant interpretation, and allow an unincorporated affidavit to expand the authorization of the warrant, we would come dangerously close to displacing the critical role of the independent magistrate.
Emphasis added.
Later in the opinion
Finally, we consider whether the search of Jane and Mary Doe can be justified on some basis other than the warrant. The officers have not seriously pressed this argument, but the District Court did consider whether the officers had probable cause to search Jane and Mary Doe under an exception to the warrant requirement.
None appears. A search warrant for a premises does not constitute a license to search everyone inside. Ybarra v. Illinois, 444 U.S. 85 (1979). The record does not disclose any independent basis to suspect Jane Doe—let alone 10-year old Mary Doe—of drug activity. While the officers justified their decision to conduct the personal searches because of the ease with which contraband could be concealed on those present in the searched premises, that is precisely the justification for a personal search that has been rejected by the Supreme Court. Id. at 94-96. Simply put, there is none of the kind of “particularized” probable cause required for a search in circumstances such as these. Id. at 91.
The officers tried to make a case for themselves by claiming they were unable to put in more details (even so vague a one as, "and all other occupants") because the piece of boilerplate their department uses was so small as to only allow for description of one person.
The court goes on in footnote 9,
Wilson [v. Layne, 526 U.S. 603, 614 (1999)] specifically held that a reference to all persons present in an affidavit cannot be relied upon where it is not referenced in the warrant: “[T]he issuing authority neither authorized nor found probable cause for an ‘all persons present’ warrant. This is clear from a reading of the warrant. The only reference to such a warrant appears in the affidavit; the warrant itself does not appear to have granted the request.” 631 A.2d at 1358.
As telling was the inability of the officers to find support, in the relevant caselaw, for the position they were trying to take,
What is significant is that the officers can point to no precedent that allowed an unincorporated affidavit to expand a search warrant. Although there are decisions that allow unincorporated affidavits to clarify or narrow overbroad warrants, we have explained at considerable length why these are a totally different matter. This is not an arcane or legalistic distinction, but a difference that goes to the heart of the constitutional requirement that judges, and not police, authorize warrants. An officer may reasonably rely on a magistrate’s approval of an overbroad warrant because the officer normally should not be penalized for the magistrate’s mistake. See Massachusetts v. Sheppard, 468 U.S. 981, 990 (1984); U.S. v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars and Fifty Seven Cents, 307 F.3d 137, 152 (3d Cir. 2002). But there is no reasonable basis for an officer to exceed the scope of a warrant just because he asked for broader search authority in the affidavit. In the latter instance, the officer has not relied on, but has disregarded, the magistrate’s judgment
What I didn't emphasise in the last passage is that Alito's opinion runs against the grain of the penultimate sentence in that excerpt, where he would allow, "an officer to exceed the scope of a warrant just because he asked for broader search authority in the affidavit."
My father is a deputy sherriff (volunteer), and I know the, already, wide range of discretion he has to find, "probable cause." If he's behind someone and decides to pull them over, he can. If they've got a light out, or the bobble in the lane, make a clumsy turn, fail to signal, you name it, whoot goes the siren and flash go the lights. Making no mistakes will also suffice, because that much attention to not being cited shows a guilty mind.
So spreading that level of power to something as defined as a warrant, in effect (though it's a broad interpretation of what he said) making anything in the application, automatically granted in any warrant a judge grants from the affidavit, that chills me more than the implications being bandied about that he sees women, and children, as property (which charge I don't think one can make from this decision... his dissent in Casey might make that claim. Scott Lemieux has a very good take on it at Lawyers, Guns and Money in which he points out that Alito failed to properly apply the "undue burden," test, because he applied to all women, not to the actual group affected. Kind of like averaging my tax cut with Cheney's and using the average to show how good it was for me).
So that makes two places in which I think his reading of the law is either flawed, or dangerous.
The question wasn't actually whether such a search was reasonable; but whether the warrant allowed it; and (since it seems it didn't) if the officers were protected with qaulified immunity.
Having read the decision, I can say there is a case to be made for Olita's opinion. I can also say I don't like his opinion (and it isn't that I think the search, per se, was a bad idea; in light of the investigation.
So, I'll quote some from the decision.pdf, and then toss out my thoughts.
First, some background, the case hinges on a search made in the course of investigating an alleged meth-dealer (I don't know what the results of the search were, and I don't think the case changes if he was a dealer). The affidavit asked to search all occupants,
The search should also include all occupants of the residence as the information developed shows that [Doe] has frequent visitors that purchase methamphetamine. These persons may be on the premises at the time of the execution of the search warrant and many attempt to conceal controlled substances on their persons.
So far, so good. The application would seem to cover anyone present (though the specific application didn't mention family members, I can see where this wouldn't be beyond the scope of reason).
But the actual warrant, as issued, didn't include that language, which is where the question comes in. Olita's read on it goes thus,
While probable cause to search premises does not necessarily provide probable cause to search every person who is found on the premises, see Ybarra v. Illinois, 444 U.S.85 (1979), if there is probable cause to believe that all of the persons found on the premises possess on their persons either contraband or evidence of a crime, there is no reason why a warrant authorizing a search of all such persons should not be issued. In this case, as noted, the affidavit submitted in support of the warrant application claimed that there was probable cause to search all such persons, and the warrant expressly incorporated that claim.
The plaintiffs argue that there was no probable cause to search them, but whether or not there was probable cause, when a warrant is issued, officers who execute the warrant are entitled to qualified immunity unless "the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable." Malley v. Briggs, 475 U.S. at 344-45. That high standard is not met here.
Again, on it's face I can't really argue with it.
What bothers me is the implications this has, in reference to the actual thinking of the rest of the court.
From the actual opinion
The warrant provides the license to search, not the affidavit. Cases such as Bianco, Towne and Carlisle may allow us to rescue an overbroad warrant if the police forbear from exercising the full measure of its excessive scope. It does not follow that we can rescue an overbroad search if the police exceed the full measure of the warrant. Bluntly, it is one thing if officers use less than the authority erroneously granted by a judge. It is quite another if officers go beyond the authority granted by the judge. Were we to adopt the officers’ approach to warrant interpretation, and allow an unincorporated affidavit to expand the authorization of the warrant, we would come dangerously close to displacing the critical role of the independent magistrate.
Emphasis added.
Later in the opinion
Finally, we consider whether the search of Jane and Mary Doe can be justified on some basis other than the warrant. The officers have not seriously pressed this argument, but the District Court did consider whether the officers had probable cause to search Jane and Mary Doe under an exception to the warrant requirement.
None appears. A search warrant for a premises does not constitute a license to search everyone inside. Ybarra v. Illinois, 444 U.S. 85 (1979). The record does not disclose any independent basis to suspect Jane Doe—let alone 10-year old Mary Doe—of drug activity. While the officers justified their decision to conduct the personal searches because of the ease with which contraband could be concealed on those present in the searched premises, that is precisely the justification for a personal search that has been rejected by the Supreme Court. Id. at 94-96. Simply put, there is none of the kind of “particularized” probable cause required for a search in circumstances such as these. Id. at 91.
The officers tried to make a case for themselves by claiming they were unable to put in more details (even so vague a one as, "and all other occupants") because the piece of boilerplate their department uses was so small as to only allow for description of one person.
The court goes on in footnote 9,
Wilson [v. Layne, 526 U.S. 603, 614 (1999)] specifically held that a reference to all persons present in an affidavit cannot be relied upon where it is not referenced in the warrant: “[T]he issuing authority neither authorized nor found probable cause for an ‘all persons present’ warrant. This is clear from a reading of the warrant. The only reference to such a warrant appears in the affidavit; the warrant itself does not appear to have granted the request.” 631 A.2d at 1358.
As telling was the inability of the officers to find support, in the relevant caselaw, for the position they were trying to take,
What is significant is that the officers can point to no precedent that allowed an unincorporated affidavit to expand a search warrant. Although there are decisions that allow unincorporated affidavits to clarify or narrow overbroad warrants, we have explained at considerable length why these are a totally different matter. This is not an arcane or legalistic distinction, but a difference that goes to the heart of the constitutional requirement that judges, and not police, authorize warrants. An officer may reasonably rely on a magistrate’s approval of an overbroad warrant because the officer normally should not be penalized for the magistrate’s mistake. See Massachusetts v. Sheppard, 468 U.S. 981, 990 (1984); U.S. v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars and Fifty Seven Cents, 307 F.3d 137, 152 (3d Cir. 2002). But there is no reasonable basis for an officer to exceed the scope of a warrant just because he asked for broader search authority in the affidavit. In the latter instance, the officer has not relied on, but has disregarded, the magistrate’s judgment
What I didn't emphasise in the last passage is that Alito's opinion runs against the grain of the penultimate sentence in that excerpt, where he would allow, "an officer to exceed the scope of a warrant just because he asked for broader search authority in the affidavit."
My father is a deputy sherriff (volunteer), and I know the, already, wide range of discretion he has to find, "probable cause." If he's behind someone and decides to pull them over, he can. If they've got a light out, or the bobble in the lane, make a clumsy turn, fail to signal, you name it, whoot goes the siren and flash go the lights. Making no mistakes will also suffice, because that much attention to not being cited shows a guilty mind.
So spreading that level of power to something as defined as a warrant, in effect (though it's a broad interpretation of what he said) making anything in the application, automatically granted in any warrant a judge grants from the affidavit, that chills me more than the implications being bandied about that he sees women, and children, as property (which charge I don't think one can make from this decision... his dissent in Casey might make that claim. Scott Lemieux has a very good take on it at Lawyers, Guns and Money in which he points out that Alito failed to properly apply the "undue burden," test, because he applied to all women, not to the actual group affected. Kind of like averaging my tax cut with Cheney's and using the average to show how good it was for me).
So that makes two places in which I think his reading of the law is either flawed, or dangerous.
