Yesterday, I linked to John Hinderaker’s analysis of the strip-search case. I have now carefully read the decision. Although I think John has done an excellent job of explaining the decision, I disagree with him and Judge Alito as to one aspect of it. As a result, I thought I’d give my own analysis of the case, to explain the nature of my disagreement.

It’s annoying that I have to call it the “case where the ten-year-old girl was strip-searched” so that you’ll recognize what I mean. Because that’s not what the case was about. It’s not like the majority was saying: “It’s unconstitutional to strip-search a ten-year-old girl!” and Judge Alito was saying: “No, it’s not! Plus, it’s good fun!”

This was, quite simply, a case about the scope of a warrant, and whether the police could be sued if they exceeded the scope of the warrant. But a hack like Erwin Chemerinsky will make it all about the strip-search, and might not even mention the actual legal issues involved.

This is why I have an ironclad rule: never express a definitive opinion on a judicial decision without carefully reading it. I commend that approach to others.

Having read the decision, I agree with the majority on the issue of the warrant’s scope, and with Judge Alito on the issue of whether the police could be sued. Both questions are close calls. I wouldn’t presume to say that Judge Alito is unqualified or worrisome because I disagree with a portion of his dissent, any more than I would say that Michael Chertoff (who wrote the majority opinion) is unqualified or worrisome because I disagree with a portion of his majority opinion. These are issues about which reasonable people can disagree.

On to the analysis:

There are two questions in the opinion: 1) are the mother and daughter included in the scope of the warrant? and 2) if not, are the police entitled to qualified immunity?

If the answer to question #1 is yes, that ends the inquiry. If the girl and her mother were included in the terms of the warrant, then the girl could be searched — even strip-searched. Not even the majority disputes that. So let’s drop the rhetoric about the strip-search. We’re analyzing legal issues, and the fact that it was a form of strip-search has almost nothing to do with the legal issues.

Plus, this is probably not the kind of strip-search you are envisioning anyway. This was not some leering male cop doing a body cavity search of a little girl. Here is how the majority described the search:

The officers decided to search Jane and Mary Doe for contraband, and sent for the meter patrol officer. When she arrived, the 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. No contraband was found. With the search completed, both Jane and Mary Doe were returned to the ground floor to await the end of the search.

It’s also important to understand that nobody particularly likes the idea of such a search — not even Judge Alito, who said:

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

As I noted yesterday, this is true. I prosecuted a case where a defendant stored over a kilogram of cocaine in a not-secret compartment in his young daughter’s closet.

I bring up these points early on to dispel certain public impressions of the case based upon misleading descriptions by lefties. But let’s try to get past that now, and get on to a discussion of the legal issues.

With respect to the scope of the warrant, I disagree with Judge Alito. I think the key here is to look at what the magistrate can be reasonably said to have necessarily authorized. Every fact should be examined to see how it illuminates the answer to that question.

To summarize my conclusion: I think it’s a reasonable conclusion that the officers meant to request permission to search all occupants of the house. But I don’t think it’s necessarily clear that the magistrate meant to grant that permission. So, I would rule that the warrant did not include the mother and girl within its scope, but I would not allow them to sue the police for money damages.

Officers seeking a search warrant must file 1) a warrant which describes with particularity the areas and people to be searched and the items to be seized, and 2) a supporting affidavit, which provides the probable cause and which is signed under penalty of perjury. The affidavit can be incorporated into the warrant by reference, but the case law is clear that this must be done explicitly.

In this case, the warrant itself was a form with several boxes. The officer who filled it out incorporated the affidavit by reference with respect to the box asking for the showing of probable cause. But in the box for persons to be searched, only the father was listed. That portion of the warrant did not specifically incorporate the affidavit.

The police explained that this box was very small, and they could barely fit the requested information in that box. They believed that the incorporation of the affidavit in other parts of the warrant was sufficient.

The majority said it wasn’t. In essence, the majority said to the police: if you didn’t incorporate the affidavit in the portion of the warrant asking who was to be searched, then you didn’t have authority to search “all occupants.”

I think this makes sense. Ambiguities or clerical errors in a warrant can be excused or overlooked — but only as long as it is clear what the magistrate meant to authorize. In this case, I don’t think it was clear that the magistrate necessarily meant to authorize a search of “all occupants.” The majority notes that “all occupants” searches are disfavored under state law, and the warrant unambiguously did not list anyone in the “to be searched” box other than John Doe.

However, Judge Alito had a decent argument that this is indeed what the magistrate intended. He explained that the warrant should be read using common sense. The affidavit requested a search of all occupants, in several places:

“The search should also include all occupants of the residence . . . This application seeks permission to search all occupants of the residence . . . .your affiant requests that a search warrant for methamphetamine and other controlled substances [etc.] be issued for 618 Center St., Ashland, Pa., the residence of [John Doe] and all occupants therein.”

Judge Alito noted that in the affidavit, the police offered probable cause for the search of all occupants, explaining that drug dealers often hide contraband by giving it to other people who don’t own the house and aren’t subject to search. They incorporated the affidavit with respect to the issue of probable cause, and simply failed to list “all occupants” as people to be searched on the warrant.

Judge Alito argued that everything should be read together. To look to the affidavit, there must be an ambiguity in the warrant itself. Judge Alito argued that the incorporation of the affidavit on the issue of probable cause, which was a similar if not identical issue to that of who should be searched, creates an ambiguity as to who could be searched — since the affidavit specifically requests search of all occupants. The ambiguity could be resolved by reference to the affidavit.

It’s a pretty good argument. But I think the better rule is the one adopted by the majority, because we don’t know for sure what the magistrate intended to authorize. Judge Alito says the magistrate clearly intended to authorize a search of all occupants, but I am less confident than he is on that point.

It seems to me that if the police are not going to clearly ask for permission to search a particular person in the appropriate document, then the magistrate may well not intend to authorize that search even if it is requested in the affidavit. The magistrate may validly view certain statements in the affidavit as boilerplate.

This distinguishes this case from cases that say clear errors in a warrant can be excused. The law books are filled with decisions that say, for example, that you can put the wrong address down in the warrant and (depending on the circumstances) that can be excused as a clear clerical error. But you won’t find any decision that excuses a mistake like that if there is any genuine confusion about whether the magistrate clearly intended to authorize the search that was done. Here, there was some question about that — in my view. Under those circumstances, I think it’s a better rule to stick to what the warrant authorizes.

The danger in authorizing a search such as occurred in this case is that you give license to the police to expand upon the authority granted to them by the magistrate. Judge Alito says we can’t expect police to draft warrants perfectly, and I agree. But we also can’t expect magistrates to comb through every phrase of an affidavit searching for ways that requests for authority in the affidavit might slightly exceed the scope of requests for authority in the warrant. The request for authority should be clear in the warrant. I think that this decision sends that message loud and clear, and I bet police have responded appropriately.

And I bet that, now that this decision is on the books, the police have found a way to fit what they need to within those small boxes. For example, all they have to do is say: “See attached affidavit, which is incorporated by reference.” Easy enough.

(As an aside, I think one could question whether it was really an “unreasonable” search under the Fourth Amendment even if the search was not authorized by the warrant, on the grounds that the police did at least obtain a warrant that arguably covered the search. That makes this search different from a completely warrantless search.)

Where I part company with the majority is in the finding that allowed the police to be sued for damages. This was based on the conclusion that it was “clearly established” that the police could not search these persons under these circumstances. I disagree. It seems likely that the police made a clerical error, and unlikely that they were trying to put one over on the magistrate. I agree with Judge Alito that they should not be sued under these circumstances.

As Judge Alito noted, the law is clear that qualfied immunity “provides ample protection to all but the plainly incompetent or those who knowingly violated the law.” I agree with him that the police in this case fit within neither description.

I don’t think it was crystal clear that police — who had sought permission to search all occupants in multiple places in the affidavit, who had explained the probable cause for such a request, and who had incorporated the affidavit in the warrant with respect to the probable cause — would be violating the law by searching all occupants. It would be a different issue now that this decision has been issued. But at the time, I don’t think this principle, properly articulated at the appropriate level of specificity, was clearly established such that the police could be sued for damages.

Sorry for the length of this. In the time I had, I couldn’t make it shorter and keep it thorough. It’s obviously intended to be read by people who really care about the issue. But I hope I’ve made my points of agreement and disagreement clear, as well as the reasons for my conclusions. I invite commentary from interested people below.