Alito's remark on strip search of girl, 10, prompts questions

WASHINGTON -- As lawyer Andrew Solomon argued his client's case in 2003, before Judge Samuel A. Alito Jr. of the federal Third Circuit Court, Alito raised a question.

''Why do you keep bringing up the fact that this case involves the strip search of a 10-year-old child?" Alito said, according to Solomon, lawyer for the girl.

Alito made his remark in a case that may become one of the most discussed of his career, as he heads toward Senate confirmation hearings in January.

Analysts familiar with Alito's decisions say the remark reflects his approach to law-and-order issues -- giving latitude and casting a skeptical eye on views that officers exceeded their authority.

Alito was the only member of a three-judge panel who thought the strip search of the girl and her mother was legal.

One of the judges who disagreed was Michael Chertoff, a conservative jurist who is now the Secretary of Homeland Security.

Chertoff, noting that the girl was not named in the warrant, wrote that ''under any reasonable reading, the warrant in this case did not authorize the search of the mother and daughter."

The Supreme Court declined to hear an appeal of the case and it was settled out of court.

The case is receiving greater scrutiny. A coalition of liberal groups has paid for a television advertisement that criticizes Alito for having ''even voted for the strip-search of a 10-year-old girl."

In response, an Alito supporter, Wendy Long, has sent out a memo saying that ''the liberals contend that children cannot be searched under the Constitution. This would amount to a 'get-out-of-jail-free' card for drug dealers who use young children to stash drugs."

Whatever the merits of the case, analysts on both sides agree that Alito's strict view on law-and-order cases may be decisive on a Supreme Court that has been narrowly divided on cases involving civil liberties, the death penalty, and the rights of defendants.

Charles J. Ogletree Jr., a Harvard Law School professor, said that if Alito is confirmed, he would become a swing vote on criminal cases. ''Some of the highly contested 5-4 decisions over the last decade are likely to swing to a more conservative point of view, with fewer rights for suspects, more power for police, and less protection for suspects who are under policy scrutiny," Ogletree said.

Alito's experience as a former US attorney also could give him special influence on criminal matters. Alito would be the only former federal prosecutor on the Supreme Court, according to an Ohio State University law professor, Doug Berman.

''He will come to the court with more experience, insight and commitment and engagement on criminal justice issues," Berman said. ''If you believe in the expertise model of Supreme Court decision-making," in which justices defer to each other's area of specialty, ''other justices will give him more allegiance in this area,"

In Alito's application for a job in the Reagan administration in 1985, he said he was inspired to enter the law in part because he disagreed with the Warren Court's decisions on ''criminal procedure."

As a federal appeals-court judge since 1990, Alito has shown conservativism on criminal matters. In a 2002 case, Alito wrote a majority opinion upholding a murder conviction of a soldier who had incriminated himself in a military setting, before he was informed of his right to remain silent.

In a 2004 death-penalty case, a man convicted of killing a Pennsylvania bar owner appealed his death sentence on grounds that his lawyer had not done proper research into the defendant's troubled childhood. A federal judge agreed with the defendant, but Alito wrote an appeals court decision reinstating the conviction.

The case was appealed to the Supreme Court, which rejected Alito's decision and ruled 5-4 in favor of the defendant. The deciding vote was cast by Sandra Day O'Connor, who is retiring, and whom Alito would replace if confirmed. As a result, some observers say, the court would become stricter on death-penalty cases if Alito takes O'Connor's seat.

In another death-penalty case involving Alito, an all-white jury in Kent County, Del., imposed a death sentence on a 22-year-old black man who had been convicted of killing a white liquor store owner in a 1982 robbery.

At the time of the robbery, Kent County was 18 percent black, but Alito, hearing the appeal in 2001, rejected concerns about the racial composition of the jury, on the grounds that it could have been random, in the way that a greater-than-expected proportion of recent US presidents have been left-handed.

The full Third Circuit overturned the ruling of the three-judge panel, criticizing Alito's analogy to left-handed presidents: ''To suggest any comparability to the striking of jurors based on their race is to minimize the history of discrimination against prospective black jurors and black defendants," the decision read.

Alito's deference to police searches appeared to have gone beyond the case involving the 10-year-old girl. In 1995, he supported the search of a 17-year-old boy who arrived at a home that police were preparing to search, with a warrant. Although the boy was not named in the warrant, Alito wrote that ''to my mind" the warrant had been intended to authorize a search of ''any persons found on the premises."

In the case involving the 10-year-old girl, police had a warrant to search a man who was the subject of an investigation involving illegal drugs. The man was not at home, but a mother and her 10-year-old daughter were there.

A female officer took the girl and her mother to an upstairs room, where ''they were instructed to empty their pockets and lift their shirts . . . [and] to drop their pants and turn around. No contraband was found," court papers said.

The mother and daughter sued, on grounds on that the search was illegal. The three-judge panel, including Alito, was asked to determine whether law enforcement officials involved in the search were immune from a suit.

Chertoff, writing for the majority, said that without a clear reference to the girl and her mother in the search warrant, it was not legal to search them.

Alito, however, wrote in his dissent that the search had been conducted legally because an application for the search warrant had sought permission to search all occupants of a house of a suspected drug dealer, and police had reason to believe that they had been authorized to search the mother and daughter. ''Even if the warrant did not contain such authorization," Alito wrote, ''a reasonable police officer could certainly have read the warrant as doing so."

Alito continued: ''I share the majority's visceral dislike of the intrusive search of [the girl], but it is a sad fact that drug dealers sometimes use children to carry out their business and to avoid prosecution."

Alito's action in the case led People for the American Way, a liberal group opposing Alito's nomination, to help pay for a television advertisement that criticized Alito for having ''even voted for the strip search of a 10-year-old girl."

Long, in her memo to Alito supporters, said that liberal groups have mischaracterized Alito's opinion as having approved the search of the 10-year-old.

Long said Alito did not approve the search, but instead wrote an opinion about ''how a search warrant and an attached affidavit should be read together."

Solomon, the lawyer for the girl and her mother, agreed that Alito's decision was based on an interpretation of the search warrant. Still, Solomon said, Alito should have taken into consideration all of the facts of the case, including the girl's age and the lack of any ''probable cause" to search her.

''To me, a strip search of a 10-year-old child who has done nothing wrong and there is no allegation of wrongdoing, it is abhorrent to anyone's sense of justice, and I think Judge Alito was approaching it from a very narrow and technical way," Solomon said.

Solomon, recalling how Alito asked why he was focusing on the age of the girl, said he responded ''that I thought it was extremely important to the case because I thought that anytime the police are going to conduct a strip search of a 10-year-child, they better be darn sure of the legality and constitutionality of a such a search. He just nodded."

After the Supreme Court refused to hear an appeal of the case, the mother and daughter reached an out-of-court settlement with Pennsylvania authorities and agreed earlier this year not to publicly discuss the matter.