One of the more frustrating things about the many questions asked about Judge Alito’s dissent in Doe v. Groody [PDF], which concerned whether law enforcement officers were liable for searching for drugs persons not explicitly included in a warrant, is that they kept hammering, for rhetorical purposes, that the officers had strip-searched a 10-year-old girl. A ten year-old-girl. Strip searched. Strip searched! A ten. Year. Old. Girl! (I eventually started hearing the sing-songy refrain of Walter from The Big Lebowski in the back of my head: “Yeah, yeah… they’re going to kill that poor woman“)
Again, rhetorically, I suppose that emphasis made sense. But focusing on that aspect allowed Alito to respond, perfectly correctly, that there’s no special Fourth Amendment for ten-year-old girls, and that it’s a damn good thing, since if there were criminals would have even more incentive to stash all their contraband on young children. There’s no question that, had the warrant explicitly granted officers permission to search anyone they found on the premises, as well as their suspected drug dealer, that it would have been perfectly proper.
But, of course, that’s not the point—or ought not to be. The point is that Alito bent over backwards to squish in some kind of tacit approval for a broader search than the explicit text of the warrant sanctioned. And that’s troubling whether the subect was a 25 year old man or a nonagenerian hermaphrodite. I’d have liked to have seen less senatorial fixation on nude prepubescents and more on whether Alito takes a fast and loose, “so long as they meant well” approach to the Fourth Amendment.
—posted by Julian