That is an ideological opinion. It has nothing to do with his qualifications.

Actually, no. That was the majority opinion of the court.

Look, the affidavit is, to quote another commenter, nothing more than the cops’ “wish list.” The warrant specifies what they get. The legal differentiation between affidavit and warrant is sharp and clear.

What Alito said is that the magistrate “must have understood” this, that and the other about what the cops “meant.” That’s horseshit. If we’re just going to give the cops creative license and carte blanche, why even require the warrant at all? Why not just let them write up the affidavit and go to town?

Because a judge rides herd over the cops. That’s one of the protections between the law and the citizenry. Sure, I find it offensive that a 10-year-old kid got strip searched. And since you’re evidently okay with Alito’s line of reasoning — that the magistrate “must have understood” what was meant — perhaps we can apply similar logic in another direction. Had the warrant specified the search more clearly (and please don’t feed me the cops’ line about “there wasn’t room”…any form will hold the phrase “premises and all occupants”), do you think perhaps the magistrate might have asked who the occupants were, and perhaps balked at strip-searching a 10-year-old?

What’s more offensive than the actual search is the fast-and-loose interpretation Alito applied to the case law and the facts. I disagree that “fast and loose” is an appropriate characteristic in a Supreme Court justice.

What I was referring to in the part you quoted was a basic legal principal that judges don’t rule on things they are not asked to rule on. In this case the warrant presented to the magistrate for signature didn’t include the authority to search all persons present (even if the affidavit attempted to establish probable cause to do so). A magistrate wouldn’t have to decide in such a case, if a more expansive search was justified or not. He or she would only decide if the parameters set forth in the warrant were justified by the contents of the affidavit.

Sorry for the length, but you asked.

Thank you. It was an interesting read and very clear. You did a good job.

If permission to search all on the premises was not specifically asked for in the warrant a magistrate does not have to bother him or herself with deciding if that request is overbroad or unwarranted.

I’m wondering what the point of the affidavit is if the magistrate is only concerned with what the warrant says.

1. Alito (and you by extension) uses a fallacious argument that there was no room to list all possible persons to be searched and therefore incorporating the affidavit into the warrant itself (though unexpressed in the warrant or affidavit) was reasonable. First of all, as pointed out by the majority no such rule of law exits or exited. Secondly, if you have a passing knowledge of search warrant practice (I have been involved in several hundred cases involving warrants from drug searches to homicides) one would know that it is common to set forth in the affidavit the justifications for searching all who might be present on the premises but are presently unknown to the officers (i.e., those who might be on the premises buying drugs) and then inserting one sentence for which there was no doubt ample room, asking for permission to search such persons. The magistrate could then judge whether the justifications given were sufficient. That was not done here. And again, the simple inclusion in the warrant of a sentence incorporating by reference all language in the affidavit could have easily been accomplished, but wasn t.

2. Much of Alito s opinion is based on what the magistrate THOUGHT without really knowing what the magistrate thought or how he decided what he/she did. For example, Alito says,  The warrant indisputably incorporated the affidavit with respect to the issue of probable cause, and the magistrate signed the warrant without alteration. The magistrate must have understood that the officers& believed the warrant, if signed, would give them authorization&  This is specious. The affidavit and warrant are two separate things. A magistrate signs the warrant believing that what is contained in the warrant is what the officers are asking permission to do. If permission to search all on the premises was not specifically asked for in the warrant a magistrate does not have to bother him or herself with deciding if that request is overbroad or unwarranted. Since the police did ask for such permission to search all persons within the context of the warrant the magistrate did not have to deal with that issue. There is no way of knowing in this case if the magistrate would have approved a  search all on the premises request as pointed out by the majority. This is the crux of the problem  no one knows what the magistrate would have authorized on this point.

3. The officers reasonable belief that they had permission to carry out the search. As pointed out by the majority, there was no precedent allowing a warrant to be expanded on the basis of an unincorporated affidavit and much precedent that would disallow it. Yet, Alito would have expanded that authority and contrary to your assertion he points to no cases on point that would allow for such expansion (in fact, he points to very little relevant case law in his dissent supporting any of his arguments for the good reason that there isn t any on his side. This makes one wonder how much he values precedent and legal reasoning or is he simply engaging in a result oriented process). Alito also claims that despite the warrants deficiencies and the officers failures that the search was justified on the basis of good faith. That is the officers believed in good faith that they had the authority to search. Again, Alito appears to engage in some legal sleight of hand here. The cases say that where an affidavit requesting such authority is incorporated by reference to the warrant and the affidavit’s request is not modified by the magistrate (since the affidavit in such a case becomes part of the warrant) then the police can reasonably believe they had authority to search. That incorporation as stated previously, was not done. Further, to get to this point Alito would read the incorporation requirements as established by the case law differently than the majority (which is ok), but his interpretation has no precedent supporting it (which is not ok).
4. You say that the fact, the girl was 10 years old  had nothing to do with it . But it does for this reason. Judge Alito says in effect that sometimes drug dealers use children to carry drugs. Perhaps that is true, but nowhere in the warrant application (affidavit) nor in the warrant itself nor in the evidence referenced in the opinion does any evidence of this assertion appear. Where does he pull that out? A strip search usually implies a body cavity search and is far more intrusive than a simple pat down or clothed search of a person. It is not typically the type of search that is done or allowed by the simple language allowing a search of all persons present at the scene of a search. As I said in an earlier post, it s not clear if a cavity search was undertaken here, but even if the child was required to simply strip naked that is far more intrusive than a simple search of the person. It takes more justification for that type of intrusion. So we have a far more intrusive search than is normally carried out done a minor without any evidence that it was allowable or necessary. Furthermore, had the magistrate been made aware that a strip of a minor child was contemplated he or she might have had reservations to allowing that on the basis of the facts presented in the application. Judge Alito on the other hand without any evidence or precedent to support his position would allow that, at least with respect to granting immunity to the officers in a law suit against them for the improper search.

Sorry for the length, but you asked.

And still arrived at the wrong conclusion.

That is an ideological opinion. It has nothing to do with his qualifications.

Dugger

sloppy legal reasoning to come to a decision that allowed a strip search of a ten-year-old girl. That s troubling.

But if the words in the affidavit had been transferred directly into the warrant rather than referenced (because they didn’t fit) then it would be OK?

In other words, there would have been no dispute about the strip search if the girl’s name had appeared directly on the warrant, right?

So the fact that she was 10 years old has nothing to do with it.

BTW, what was “sloppy” about the reasoning, specifically?

He also used a very loose interpretation of Fourth Amendment law and sloppy legal reasoning to come to a decision that allowed a strip search of a ten-year-old girl. That’s troubling.

A magistrate does not sign a warrant application (the affidavit) nor does he make changes to the affidavit.

If you infered this from my writing, then I might not have expressed myself clearly enough. The police write both the affidavit and the warrant. The magistrate signs the warrant after reading both. The magistrate in this case signed the warrant unchanged. Both the police and the magistrate knew who was to be searched based on the affidavit and the way in which it was incorporated into the warrant. Based on these facts, Alito argued based on previously settled law that the police had a reasonable expectation that their searches were legal.

I am not disappointed that the case determined that the warrant itself should have been more explicit. But Alito used previous case law to defend his position in detail and to explain why the majority’s use of case law did not apply. He was very clear, detailed, and referenced the law, which is the proper basis for determining if someone is qualified for the court rather than his political affiliation.

He was very clear, detailed, and referenced the law

And still arrived at the wrong conclusion.

This analysis exhibits a serious misunderstanding of the case and search warrants in general. A magistrate does not sign a warrant application (the affidavit) nor does he make changes to the affidavit. Only the police can do that. A magistrate signs the warrant, which in this case only delineated one person to be searched. Thus the language of the majority that I quoted above (i.e., that a magistrate could have balked at the broader search undertaken by the police had it been asked for in the warrant). The police could have incorporated the affivdavit and it’s request by reference into the warrant and if the magistrate had approved there would have been no problem, but the police didn’t do that. Hence, the affidavit couldn’t be used to justify expanding the scope of the search sought in the warrant. That a judge would stretch the limits of applicable search law as Alito did in this case does indeed call into question his commitment to civil liberties. That doesn’t mean that he is attacking said liberties, perhaps this case is an anomaly. But it does give one pause as to what direction he would try to take the court on the issue and it is entirely justifable to hold this case up for scrutiny on the issue.

The case you’re talking about didn’t determine whether or not the search was justified. The point being argued was weather the conduct by the officers was so egregiously wrong that they shouldn’t be afforded the immunity that comes with doing their jobs.

One can believe that the search of the wife and daughter (by a female officer, BTW) is wrong without thinking that the police officers ought to be liable for civil damages.

Only idiots and/ or degenerates would think this is going to be fun and lovin’ it

No, the warrant didn t. The request for the warrant did. The warrant itself cited only John Doe. Go read the case. The court ruled that the officers violated the limits of the warrant itself.

I did read the case. The affidavit that described all the people to be searched was attached to the warrant because there wasn’t enough room in the warrant’s description box. However, your more specific description is more accurate.

I suppose law enforcement officials all over the country should redesign their warrants, and I don’t begrudge a strict tolerance for following a warrant.

But this is a ridiculous case to use as an example of Alito’s supposed attack on civil liberties. The police described who they wanted to search and a magistrate signed it without any changes. The police knew what it meant and the judge knew what it meant. The police weren’t trying to bypass any legal barriers and had legally planned for the searches ahead of time.

That’s hilarious. If he came in blackface the right wouldn’t bat an eye. If he came in a dress on the other hand, whoa nelly. James Dobson would shit himself.