“Pursuant to a warrant, police officers carried out a search of the home of a man suspected of drug dealing. While they were there, they encountered the suspect’s wife and ten-year-old daughter. The police decided to strip-search the wife and daughter, although they were not mentioned in the warrant.”Here are some essential points to have in mind about this case:
1. The majority never describes the search as a “strip search.” It uses that phrase only in summarizing the complaint brought by the alleged drug dealer and his wife. The majority instead states:
“[T]he female officer removed both Jane and Mary Doe to an upstairs bathroom. They were instructed to empty their pockets and lift their shirts. The female officer patted their pockets. She then told Jane and Mary Doe to drop their pants and turn around.”In other words, this was a limited search conducted professionally by a female police officer, not some reckless cavity search by male officers. Call it the pocket-pat-and-visible-inspection case.
Needless to say, even this limited search was intrusive, and no one should be wrongly subjected to it. As Alito himself stated, “I share the majority’s visceral dislike of the intrusive search of John Doe’s young daughter.” But rhetoric about “strip searches” of ten-year-olds is irresponsible.
2. The specific question that divided the majority and Alito was, in the words of the majority, “under what circumstances the scope of a warrant may be expanded by looking to the accompanying affidavit.” The affidavit that accompanied the warrant specifically requested permission “to search all occupants of the residence.” That affidavit was incorporated by reference into the warrant in the description of “probable cause belief.” But it was not also specifically and explicitly incorporated in the part of the warrant form that called for “specific description of premises and/or persons to be searched.” The majority ruled that the warrant could not be read to incorporate the affidavit for this purpose.
Alito, in dissent, applied Supreme Court precedent requiring that search warrants be read “in a commonsense and realistic fashion.” He criticized the majority’s “technical and legalistic method of interpretation.” He determined, in light of all the circumstances surrounding the warrant application, that the warrant was best read to incorporate the affidavit as to the persons to be searched. Alternatively, for purposes of the qualified immunity question that the case presented, he determined that a reasonable officer could certainly have believed that the warrant provided the necessary authorization.
Bottom line: This case presents an interesting and difficult question on which reasonable jurists can (and did) apply competing Supreme Court precedents differently. That question has nothing to do with strip searches of ten-year-olds but instead concerns, as Alito accurately puts it, “the degree of technical precision that should be demanded in determining whether a warrant adequately incorporates an attached application or affidavit.”