Patterico's Pontifications

11/1/2005

That Strip-Search Decision

Filed under: Judiciary — Patterico @ 12:02 am



John from Power Line has a detailed post about the Alito dissent arguing that police should not be liable for strip-searching a mother and her 10-year-old daughter during the service of a search warrant, though their names were not listed in a warrant.

I haven’t fully read the case; I’ve had time only to skim it. But I can tell from skimming it that the issue is the scope of the warrant, not whether it’s okay to strip-search a 10-year-old child and her mother. If their names had been listed in the warrant, the search would unquestionably have been legal. The question at issue was whether the warrant, when read together with the affidavit, covered the other occupants (or at least provided the police a good-faith basis to believe that it did).

I heard Erwin Chemerinsky on Hewitt today claiming to have read the decision, yet he didn’t even mention that the issue was the scope of the warrant. He just ranted about how Alito wrote a decision protecting cops from liability for strip-searching a 10-year-old. Prepare to hear more of the same from lefties. They make it sound like Alito positively took glee in the police’s actions.

Not so. Alito mades it clear that he didn’t like the search:

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.

That’s for sure. I tried a case where the defendant hid thousands of dollars worth of cocaine in a compartment in his young daughter’s closet.

I can’t yet say whether I agree with Alito’s dissent; my initial impression is that, while Alito has some good points about how to read warrants, the majority has the better of the argument. But it’s only an initial impression; I don’t criticize decisions until I have read them thoroughly.

But even if I decide I disagree, it won’t bother me. Hey, when a guy writes hundreds of decisions, you’re not necessarily going to agree with all of them.

43 Responses to “That Strip-Search Decision”

  1. On one hand, the Moonbats are barking that Alito is the antiChrist and are demanding a fb on that basis.

    On the other hand, it appears that more strategic Dems are trying to play it down, cuz they know the guy’s a lock and to fb him would simply cost them their only potentially effective tool.

    I love stories like this “strip-search” one that can be so easily misinterpreted. It splits the two Dem factions even further apart; Howard Dean vs John Kerry all over, and now it’s party-wide.

    Only q now is how much damage will it do to the Dems before it ends: a lot or, um, a lotter?

    ras (f9de13)

  2. I get the impression that the days of borking are over. On the one hand, dirty tricks such as implying Alito is soft on the mob because he is italian-american backfire. People are tired of the politics of personal destruction. On the other hand, cases like this strip-search are technical and few pay attention.

    Myrhaf (4327c7)

  3. Alito Lit. 101

    There are two main cases tried by Supreme Court nominee Judge Samuel Alito that will whip all the Democrats into a froth of hysteria. First, Patterico has a great analysis of Casey v. Planned Parenthood, Alito’s dissent from a ruling…

    Big Lizards (fe7c9d)

  4. ” Hey, when a guy writes hundreds of decisions, you’re not necessarily going to agree with all of them.”

    Which ones do you like. I hear leftists talking about specific cases, and conservatives talking generally about the guy: “applies, doesn’t make, law”, a “restrained judiciary” etc…

    I’d like to see some examples of this stuff. Like, enough to counter hte FMLA and machine gun cases, for example.

    actus (c9e62e)

  5. ” On the one hand, dirty tricks such as implying Alito is soft on the mob because he is italian-american backfire. ”

    What does work is to stretch the legitimate point that he messed up a big prosecution into a smear. That’s the liberal media for ya!

    actus (ebc508)

  6. It was an activist opinion. I hope Alito never has to decide a case involving the parol evidence rule.

    Geek, Esq. (5dd2be)

  7. The question at issue was whether the warrant, when read together with the affidavit, covered the other occupants (or at least provided the police a good-faith basis to believe that it did).

    Yes it was, and speaking for myself, those are the terms on which I think it was a piss-poor dissent.

    Speaking generally, it is helpful to refocus the debate on the actual issues raised in the opinions, as Patterico often does. It’s unfortunate that this M.O. is practically lost in the ocean of open-ended vitriol.

    In this case, the warrant authorized the search of one John Doe, no mention of any other parties, including occupants. The affidavit showed that the law enforcement, who seem to be state-level narco-SWATs who should know exactly what a warrant says and does not say, wanted broader authority to search anyone in the joint.

    They wanted that broad gangbusters authority, they didn’t get it, and they exercised it anyway. This is not what the Good-Faith exception to the warrant requirement should be used for.

    Question for all the textualists/originalists, where is the Good-Faith (aka “oops”) exception in the Fourth Amendment? Is it “built in” to the reasonableness requirement? That seems to be the only hint of potential legitimacy of the Oops exception.

    But then, where else is accident an excuse for an acknowledged violation of the Bill of Rights? Is there any textual/original support for such a perverse proposition?

    I don’t think so.

    And even if we acknowledge that the Oops exception is necessary for good law enforcement (as opposed to the IMO more plausible view that it’s the opposite of good law enforcement), how does it have any limits if Alito has his way and it is applied in this case?

    You know, when talking about the meaning of reasonableness, the conversation does have to come back to the intangible yet morally sturdy mix of emotion and common sense. This mix is not the exclusive property of any political or judicial temperament, and is absent from Alito in this dissent. To quote myself from another post (with apologies):

    Alito stood with those brave drug SWATs, who only namby-pamby liberals might suggest had humiliated, violated, and scared the bejeezus out of a little girl, and then claimed that they had just done the wrong homework, would the court please go back and change the assignmment to fit their boo-boo?

    there is nothing about conservative values that compels or even suggests such perversity.

    biwah (f5ca22)

  8. Not so. Alito mades it clear that he didn’t like the search:

    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.

    That’s for sure. I tried a case where the defendant hid thousands of dollars worth of cocaine in a compartment in his young daughter’s closet.

    Just wanted to point out that both Alito and Patterico have strayed afield from the issue with these comments. Remember, the issue did the officers’ error qualify for the Good-Faith Exception – not, is there a policy supporting a new and separate “drug concealment” (or what have you) exception to the Fourth Amendment warrant requirement?

    biwah (f5ca22)

  9. biwah:

    Did you even read the dissent? Even just a little? Did you, perhaps —when you were perusing it— notice Alito consistently make reference to the affidavit that was incorporated as probable cause to the warrant?

    When you read that did you, mayhaps, notice Alito builds the entire argument of ‘good faith’ on that affidavit, that mentions three seperate times the need to search all persons on the premises the warrant would be issued for? Did you notice Alito mention particularly that the affidavit points out that drug dealers will often place drugs onto children and others on their premises?

    Just curious, since you call it a piss poor dissent but do not actually mention anything of its content.

    Inquiring (e06b01)

  10. “Did you even read the dissent?”

    Does he explain how he gets around these annoying words: “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    actus (ebc508)

  11. I blogged about it here. My point is that whether one agrees with the decision or not (I tend to think that Alito had it right), reasonable people can disagree over the issue. Even if one disagrees with Alito, this doesn’t make him a pedophile or a proponent of child molestation, as the DUers would have it.

    Voice of Reason (d427f3)

  12. Inquiring:

    In his dissent, Alito argued for (a) incorporation and (b) Good-Faith Exception (in absence of incorporation). Yes, I mostly addressed the Good-Faith issue, since that’s what the decision hinged on. But I’ll stick with my previous characterization of the incorporation argument:

    “They wanted that broad gangbusters authority, they didn’t get it, and they exercised it anyway.”

    I guess you feel that if a judge partially grants a warrant request (in the form of an affidavit) because he finds that probable cause or, say, reasonableness is lacking for some of the more broad or intrusive aspects of the request, everything requested in the affidavit should be deemed granted anyway – never mind what the warrant says. That opinion would place you in Judge Alito’s company.

    By the way, here’s a snippet of what the warrant didn’t say, from the facts of the case:

    in answering the question “[s]pecific description of premises and/or persons to be searched,”the attached typed affidavit was not mentioned. Rather, the form contained a typewritten entry naming only John Doe, giving his description, date of birth and social security number, and identifying and describing John Doe’s residence.

    Do words in a legal document mean what they say? Yes; no; only in civil cases?

    biwah (f5ca22)

  13. VOR:

    You’re right – obviously. I’ve expressed my disdain for the tone of the debate, and if I am trying to tear down Judge Alito here, it’s for this one dissent, not for his entire career, which is distinguished.

    biwah (f5ca22)

  14. Question for all the textualists/originalists, where is the Good-Faith (aka “oops”) exception in the Fourth Amendment? Is it “built in” to the reasonableness requirement? That seems to be the only hint of potential legitimacy of the Oops exception.

    This case doesn’t involve any “good faith” exception to the Fourth Amendment. It involves the doctrine of qualified immunity, which the SCt has read into section 1983. The idea is that even if the defendant officers have violated the plaintiff’s constitutional rights, the officers are not liable in damages unless the rights they violated were clearly established with some specificity. The question is whether reasonable officers in the position of the defendants could disagree about whether the action taken violated the Fourth Amendment. If reasonable officers could disagree, the right was not clearly established, and there is no damages liability.

    This is slightly simplified, but it’s the basic idea.

    Attila (Pillage Idiot) (dfa1f1)

  15. In this case, the warrant authorized the search of one John Doe, no mention of any other parties, including occupants. The affidavit showed that the law enforcement, who seem to be state-level narco-SWATs who should know exactly what a warrant says and does not say, wanted broader authority to search anyone in the joint.

    They wanted that broad gangbusters authority, they didn’t get it, and they exercised it anyway. This is not what the Good-Faith exception to the warrant requirement should be used for.

    You make it sound like the warrant was written by the magistrate in response to the officers’ affidavit, and deliberately confined the search to John Doe. Alito’s dissent says that the officers composed both the affidavit and the warrant, submitted them together, and the magistrate signed the warrant without changes.

    Given the facts that the officers composed the warrant themselves, that they explicitly incorporated the affidavit by reference in the probable cause section of the warrant, and that the affidavit explains in three places their intention to search everyone in the house, it doesn’t seem unreasonable for them to have believed that they had the authority to do so. There doesn’t seem to be any evidence for your contention that they were smacked down for requesting gangbusters authority, and knowingly defied their constraints.

    Too bad there is no testimony from the magistrate about what he thought the warrant authorized when he signed it. Is that just not done?

    David Barnett (cb9d30)

  16. They wanted that broad gangbusters authority, they didn’t get it, and they exercised it anyway. This is not what the Good-Faith exception to the warrant requirement should be used for.

    You make it sound like the warrant was written by the magistrate in response to the officers’ affidavit, and deliberately confined the search to John Doe.

    Exactly right. biwah, that was a little misleading, though I assume unintentionally.

    Patterico (172c96)

  17. Attila:

    I had written that as an aside, but am interested in the issue you raise.

    As I understand the case, the central issue is still the Fourth Amendment, since qualified immunity is “qualified” specifically based on whether the official act violated an established constitutional right – in this case the Fourth Amendment.

    On the question of whether that constituional right is clearly established, the “reasonable officer” test comes into play. However, the majority found this test met and I don’t think Alito even challenged it. The Fourth Amendment right in question was clearly established, all that remained was to decide whether it had been violated. And that question was the topic of Alito’s dissent.

    On the “good faith” exception, I think it was only Alito who raised the issue. (I scanned the opinion and didn’t see the majority discuss it – having denied the incorporation argument, they didn’t need to.) He raised in in the fourth amendment context, and that is where my comments were mostly directed.

    biwah (f5ca22)

  18. Patterico:

    So you’re saying it was a clerical error and therefore meaningless?

    I’m not saying it’s impossible – that’s not the point. If the warrant is going to authorize a specific action to the exclusion of other actions, what does it have to do to exclude those other actions – list all actions not authorized?

    Right.

    biwah (f5ca22)

  19. A question for biwah, et al – does granting the individual officers qulaified immunity leave the two Jane Does wihtout a remedy under 1983?

    eddie haskell (8fd1a1)

  20. Patterico:

    Did you edit your comment? If not, mea culpa. I think it changed on me while I was responding. I’ll have to look at it again.

    biwah (f5ca22)

  21. David Barnett:

    I agree that there is a question of what the magistrate intended, but the best indicator of intent is what?

    All together now…

    The text.

    Also, the Good Faith exception is clearly elastic. but that’s exactly why, once they’ve crafted such a discretionary exception to a fundamental right that relies on the existence of the violator’s misperception of fact, they have got to look at egregious cases and say enough. Otherwise that “jealously guarded” lingo re: the warrant requirement is just vapor, and the citizens’ rights with it.

    biwah (f5ca22)

  22. eddie:

    Without 1983, I am pretty sure the JDs are without any other remedy for that violation of their constitutional rights.

    biwah (f5ca22)

  23. biwah

    Actually, Alito would have held that qualified immunity was available to the officers.

    Second, even if the warrant did not contain such authorization, a reasonable police officer could certainly have read the warrant as doing so, and therefore the appellants are entitled to qualified immunity.

    Also, Point II on page 248.

    I didn’t want to get into a lengthy discussion of the doctrine, but the issue is not whether the Fourth Amendment clearly establishes a right not to be subjected to unreasonable searches and seizures (which it obviously does) but whether the officers’ specific actions violated clearly established Fourth Amendment rights. As you probably know, Fourth Amendment doctrine has a lot of areas of uncertainty.

    Last, Alito didn’t raise the “good faith” exception.

    Attila (Pillage Idiot) (dfa1f1)

  24. Attila, Patterico, or others who frequently deal with issues in this area, it would be helpful in countering the MSM Party’s attack (which is what bloggers do best) on Alito if you (or someone) could to put into plain English the difference between the issue of any qualified immunity of the officers involved and that of whether evidence obtained in the search may be used by the State — then, get the explanation out into the non-lawyer blogospher. As I understand it, the public policy behind qualified immunity is to enable law enforcement officers to do their jobs without fear of liability for actions taken in good faith — they are, after all, acting on behalf of all of us for the purpose of protecting public safety. Whether contraband obtained from a search that goes beyond the scope of a warrant can be used as evidence is a different issue, and although most people here understand that, it’s a distinction that’s lost on many others, particularly people who rely on the MSM for info — and you can be sure that the MSM won’t be emphasizing that distinction. But as I said, it’s not my area, and my explanation won’t be as clear or won’t have the credibility that yours might — so, do that blog-thing, and make the important distinctions easy for non-lawyers to understand.

    TNugent (6128b4)

  25. Attila:

    You’re right. I misread Alito’s second point as relating to GF exception.

    My only defense is that I was scanning. At least no trees died in the making of my wasted argument.

    The two questions in this case would be almost identical though, wouldn’t they? If the officers’ mistake was based on a good-faith misconception of the warrant, there would be no constitutional violation, just as there would be qualified immunity.

    Different precedents, of course, but identical in concept.

    biwah (f5ca22)

  26. Alito’s defenders here should be estopped from ever labeling someone on the left an ‘activist.’

    The only legally operative document here was the warrant.

    The warrant was unambiguous on its face. In plain text, it specified the person to be searched as the husband/father. It didn’t mention anyone else. When discussing the person to be searched, it didn’t reference the affidavit.

    When a legally operative document such as a contract, statute, or warrrant is clear and unambiuous on its face, it is simply inappropriate to bring in collateral evidence to change the meaning of the text.

    The government got permission to search the husband/father. That’s it. But Judge Alito broke a fundamental rule of adjudication and allowed a collateral document to trump the actual legal instrument.

    And, this Section 1983 stuff aside, Alito actually held that the warrant DID allow the search of the wife and kid.

    That is crystal-clear error.

    Geek, Esq. (5dd2be)

  27. Geek:

    That’s right. “Incorporation” is just a term of art for giving effect to a collateral document, i.e. the affidavit. It is only used when there is an ambiguity, and evidently only to restrict the warrant so as to render it complete & reasonable – not to expand the scope of the authorized search.

    biwah (f5ca22)

  28. Geek, I guess I’ll have to read the opinion for myself. But in the meantime, would you read the warrant as permitting a search of the named persons regardless of whether they were present in the house? If so, and other persons were within the premises identified in the warrant, in close proximity to the named persons, with the contraband identified in the warrant being something easily hidden under a person’s clothing, then isn’t it reasonable to read the warrant as permitting a search of those persons, even if they’re not named? Just asking — you might know of caselaw, etc. that says otherwise. But I would hate to think that a suspect could defeat the purpose of a warrant by merely keeping a few kids around for the purpose of hiding the goods, just in case the police show up.

    You, Attila, Patterico and others here are looking at this pretty matter-of-fact-ly, but be sure that the MSM spin isn’t focusing on 4th amendment issues or Sect.1983 — it’s about Judge Alito giving the ok to STRIP-SEARCH A KID. This is the sort of inflammatory story that would cause an I-know-it-when-I-see-it judge, or even a diversity-is-a-compelling-interest-so-let’s-suspend-the-equal-protection-clause-for-25-years-or-so judge to forget about the law and rule based on what “feels” right. We can be pretty sure that Sam Alito’s not that kind of judge. And that is a big part of what the conservative objections to Miers were about.

    TNugent (6128b4)

  29. would you read the warrant as permitting a search of the named persons regardless of whether they were present in the house? If so, and other persons were within the premises identified in the warrant, in close proximity to the named persons, with the contraband identified in the warrant being something easily hidden under a person’s clothing, then isn’t it reasonable to read the warrant as permitting a search of those persons, even if they’re not named? Just asking — you might know of caselaw, etc. that says otherwise. But I would hate to think that a suspect could defeat the purpose of a warrant by merely keeping a few kids around for the purpose of hiding the goods, just in case the police show up.

    It would all depend on details like how the warrant is worded, the specific facts of the case, etc etc.

    Geek, Esq. (5dd2be)

  30. How ’bout this case, then? Given your comments on this case and what it says about Alito’s approach to fourth amendment guarantees, I figured you had a pretty good idea of whether the warrant was clear on its face, one way or another, or whether there was an ambiguity that might lead to the supporting affidavits.

    If Judge Alito erred in favor of the police in this case, well, then sure, let’s ask him about it, and also take a look at subsequent cases on similar issues. But it would bother me more if he had ruled the other way and had been incorrect based on the facts involved, if his ruling was driven by his revulsion at the fact of the strip search rather than his interpretation of the law and the application of the facts found by the lower court. If we’re going to cry “authoritarian” or otherwise denigrate the judge who gives a reasoned analysis in spite of ugly facts, while cheering the judge who makes a feel-good despite being wrong on the law, we might as well let Diane speak-to-me-as-a-father-not-as-a-judge Feinstein pick the next Associate justice.

    TNugent (58efde)

  31. Would a decision driven by revulsion at a strip-search be worse than one driven by blinkered cops-can-do-no-wrong bias?

    I see a little of the latter in Judge Alito’s dissent – but admittedly not enough to cast much doubt on his basic impartiality.

    The primary issue is: What words or other indicia of incorporation need to appear on a warrant to incorporate a collateral document into the warrant?

    Judge Alito felt that a “commonsense and realistic” interpretion of the warrant would be to include people as subject to the warrant who were not listed or mentioned by the warrant.

    There are points in favor of incorporation – the affidavit was attached to the warrant (not being attached would have definitely barred incorporation, under precedent); other parts of the warrant did explicitly incorporate the affidavit (this could also support an exclusio unius argument against incorporation of the section in question); and the police had an explanation for the exclusion: they ran out of room to type the necessary words in.

    As common-sense as those points may sound, the principle they seek to nullify – that an unambiguous primary document does not admit any modification based on collateral evidence – is sounder. Alito’s dissent would set a bad precedent, and why? – because “common sense” was invoked in order to bend over backwards on behalf of the police. Would he also invoke such common sense in a defendant’s favor? It’s an open question.

    After reading the opinion more thoroughly, I still disagree with Judge Alito, but the disagreement is admittedly thin. He had a policy in mind when he wrote the dissent, but he doesn’t seem to have been driven by it. The issues were pretty fine under these facts, and he addressed them directly and concisely.

    biwah (f5ca22)

  32. Again speaking tentatively based on a skimming of the opinion, I am in agreement with biwah’s last comment. I think the areas of disagreement are thin, but my gut tells me that the majority’s rule is better on the scope of the warrant. I also think well-trained officers can find a way to get what they need to inside the little box; I bet they do it differently after the decision. The clearly established law prong of the majority’s analysis bothers me a little more; that’s the part I’d have to analyze in detail.

    But the bottom line is that the idea this dissent “shreds the Constitution” is hyperbole, in my tentative view. I think biwah has it pretty much right.

    Patterico (c201cf)

  33. Biwah, I think the blinkered, cops can do no wrong approach would be a problem similar in quality to that of ruling based on emotion — in each case, the rule of law is suspended for reasons having to do with the judge’s personal views/opinions/feelings.

    TNugent (58efde)

  34. biwah – But my point is that the issue here was individual officer immunity. Doesn’t this mean that, even if the majority agreed with Alito, the Jane Does still had a remedy for the 1983 violation against the state agency, although individual officers’ assets would not be at risk? If so, this is hardly a case of Alito “favoring strip searches of pre-pubescents” as others have claimed.

    BTW, I appreciate the thoughtfulness of your post above (#33). Question, though, from a civil practitioner: In a civil context, an incorporated document (e.g., an exhibit to a complaint) has equal status to the document to which it is attached, neither having primacy. What is the basis for the concept that the warrant is the primary document in this case? Not challenging the concept – just wondering where it comes from.

    eddie haskell (8fd1a1)

  35. biwah – I meant to comlpliment post #31.

    eddie haskell (8fd1a1)

  36. Read it over lunch. I may do a post on it. Bottom line: what I said before. I disagree with Alito regarding the scope of the warrant. Though I think it’s a close call, I think the majority has the better rule. If there’s a box saying who can be searched, and you don’t put person x in there, and you don’t incorporate the affidavit, then the police don’t have the right to search person x.

    But I think the majority is too unforgiving on the issue of qualified immunity. I think it’s clear that the police intended to seek permission to search “all occupants.” I think the magistrate knew this. I think they made an attempt to offer probable cause for that, and I think the majority is too cute in the way it dismisses this fact.

    And I think that, at least until this opinion was issued, there was too much room for disagreement on this issue to hold officers liable. After this opinion, they will presumably be trained better to specify the people to be searched in the warrant proper, or (more likely) to explicitly incorporate the affidavit. But I think it’s too harsh to tag them with liability under these circumstances.

    Patterico (c201cf)

  37. Question for all the textualists/originalists, where is the Good-Faith (aka “oops”) exception in the Fourth Amendment? Is it “built in” to the reasonableness requirement? That seems to be the only hint of potential legitimacy of the Oops exception.

    The answer is that there is no “good faith” exception to the fourth amendment. If a search is a) without consent, b) unreasonable, and c) not authorised by a warrant issued upon probable cause, then the search is in violation of the 4th amendment. The question is, OK, it’s in violation; now what?

    The “good faith exception” that we hear most about is not to the 4th amendment, but to the exclusionary rule. Remember that there is nothing in the constitution that even hints that evidence obtained in an illegal search should not be admissible in court. The framers certainly had no such doctrine in mind. The exclusionary rule was made up by the courts, in the 20th century, as a way of enforcing the 4th amendment. If the police know that the courts will refuse to look at evidence they obtain illegally, they will have less of an incentive to break the law. The courts’ authority to make up this rule rests, not directly on the constitution, but on their right to set their own rules for how they operate.

    Since the point of the rule is to remove an incentive for the police to break the law, the rule only applies when the police actually intended to break the law. When they honestly thought they were acting legally, there’s no reason to exclude the evidence, so the courts do not apply this rule. That’s the “good faith exception”. See, no tampering with the constitution required.

    In this case, though, the “good faith exception” we’re dealing with is somewhat different. AIUI no evidence was actually found on the persons of the Does, so there was nothing to exclude. Instead, the issue was that the Does were suing the police for damages, on the grounds that they exceeded their authority. And here there is definitely a “good faith” exception – if they honestly and reasonably beleived that they were doing their job properly, they cannot be held liable for damages. That’s obvious. The tort alleged requires intent as an element, and if they acted in good faith then there was no intent to commit the tort.

    The same would obviously apply in even greater strength if the policemen were to be prosecuted for the search; if they believed in good faith that they were conducting a lawful search, then there is no mens rea, and no crime.

    Milhouse (74db9b)

  38. Originalism and the “Good Faith Exception” to the 4th Amendment

    Over at Patterico’s place, they’ve been discussing Alito’s dissent in Doe v. Groody.

    Neo Warmonger (74db9b)

  39. Milhouse: Thanks for the excellent correction and background.

    eddie – #35 – Thanks.

    biwah (f5ca22)

  40. biwah – You’re welcome, but do you know the answer to my question regarding the relative importance of a warrant and its supporting affidavit?

    eddie haskell (7727cd)

  41. biwah:

    I have thoroughly enjoyed reading your deeper comments on the issue; much better than simply stating “piss poor dissent” as if it closes the book.

    Inquiring (e06b01)

  42. eddie – you noticed my non-answer, heh…

    In this case, there was no issue of a primary and collateral document. Without incorporation on a given term, the affidavit would have been “collateral” – without weight of its own, but available to explain a facial ambiguity in the warrant. With incorporation, the warrant and affidavit would have been given equal weight – both primary. So the only question was, was the affidavit incorporated on the relevant point (who was authorized to be searched).

    So if the warrant had listed “John Smith and his youngest daughter” – sloppy drafting happens – the affidavit giving a more specific ID of that daughter, or for that matter John Smith, would be admissible as evidence of the magistrate’s intent. I think this kind of case has come up where an address/apt. # was improperly transcribed.

    Note that such “collateral” evidence would have to be funneled into the question of magistrate’s intent as opposed to actual fact or officer’s intent. This makes the situation a little different from the “meeting of the minds” of two contracting parties.

    There are other interesting questions, esp. when you consider the qualified immunity (civil rights suit) and good-faith exception (re exclusion of evidence in a crim case) issues – both of which filter the question through the officer’s reasonable perception of the authority granted by the warrant. This perception could well be affected by what that officer wrote in his affidavit or a verbal exchange between the officer and the magistrate, or…many possibilities.

    Inquiring: Is sincerity a defense?

    biwah (f5ca22)

  43. Inquiring: don’t answer that…

    biwah (f5ca22)


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