Supreme Court nominee Samuel Alito's dissent in the case is the subject of a TV ad, which some won't air.
By Associated Press
Published November 25, 2005
PHILADELPHIA - When police in a small Pennsylvania coal town went to the home of a suspected methamphetamine dealer, they sent for a female meter maid to search the suspect's wife and 10-year-old daughter.
The woman took the two to an upstairs bathroom, had them lift their shirts and drop their pants and patted them down. Then she directed them downstairs, where they sat on a couch while a Schuylkill County drug squad searched the home.
Six years later, interest groups on both sides of the high-stakes fight over Supreme Court nominee Samuel Alito are spinning the "strip search" case to their own ends.
As a 3rd U.S. Circuit Court of Appeals judge, Alito found it acceptable to search family members even if they were not specifically named in the warrant. But his view came in a dissent to the 2-1 majority opinion written by colleague Michael Chertoff - then a judge, now the nation's Homeland Security secretary - who said that officers went beyond the terms of the search warrant and were liable for potential damages.
"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," Alito wrote in his March 2004 dissent.
Chertoff - not known for being soft on crime - argued that the police offered no such probable cause in the application supporting the warrant. The affidavit sought permission to search "occupants" of the house, especially visitors who may have been hiding drugs, but did not refer to family members.
"We look in vain for any assertion that narcotics dealers often hide drugs on family members and young children. Perhaps they do; but the judge reviewing this affidavit would not know it," Chertoff wrote.
The suspect whose name was listed on the warrant, Michael McGinley, a disbarred lawyer with a spate of drug and assault arrests, said he has since settled the suit with police and Ashland borough for a six-figure sum. Alito's nomination disturbs him.
"What he's advocating, it boggles the mind. That a 10-year-old not named in a warrant can be strip-searched in her own home, with no probable cause? That's just mind-boggling," McGinley, 55, said Wednesday.
His lawyer agreed.
"I took the case because I thought what the police had done in this particular incident was outrageous," Andrew Solomon of Philadelphia said. "Any time police officers are contemplating a search of a 10-year-old child, I thought that alarm bells ought to be going off in their heads."
Solomon recalls that Alito, in oral arguments, asked why he kept emphasizing that a young girl had been searched. The third judge on the panel, Thomas L. Ambro, appeared concerned about possible parallels, such as someone being searched while visiting a friend's house, Solomon recalled.
Lawyer R. Douglas Sherman of the state Attorney General's Office, who argued on behalf of the police agencies involved, declined to comment.
Ashland police Chief Adam Bernodin, a defendant who was present for the March 1998 search, objects to the term "strip search," arguing that the McGinleys were patted down in their underwear.
Police found some marijuana and traces of methamphetamine in the house, but no drugs on the wife and 10-year-old girl. McGinley said he was charged and convicted of possession and put on probation.
In advance of Alito's confirmation hearings, a coalition of liberal groups put together a 30-second television ad in targeted markets that says Alito "even voted to approve strip search of a 10-year-old girl."
Fox News has said it won't run the ad, saying its lawyers found it factually incorrect.
Wendy Long, counsel for the conservative Judicial Confirmation Network, said liberal groups were misreading the McGinley case, which was filed as Doe vs. Groody.
She argued that the "legal question came down to a technical ruling on how a search warrant and an attached affidavit should be read together."
Temple University law professor Craig Green concluded that Chertoff and Ambro wanted search warrants held to rigorous standards, while Alito took a more pragmatic view.
"Alito wants the more permissive rule. He believes that it's more in tune with the realities of street policing - that these are very practical documents written by practical people," Green said.
