MORE ON ALITO

An emailer disagrees with a previous emailer’s worry about the Groody case:

You emailer mischaracterizes Alito’s dissent in the Groody case. Alito was not proposing to simply “ignore the plain text of the warrant”; he argued that the text of the warrant was ambiguous and that the officers therefore could reasonably rely on the affidavit to justify the search and enjoy qualified immunity.

Both the majority and Alito agreed that, if the warrant was ambiguous, or if the warrant incorporated the supporting affidavit, the affidavit could be used to support the search. However, as Alito makes plain in his dissent: “My disagreement with the majority concerns the question whether the mode of incorporation [of the affidavit in support of and attached to the warrant, which sought authorization to search all persons found on the subject property] in this case was adequate.”

The majority conceded that warrants are not to be read in a legalistic and hypertechnical manner and that a court may look to the supporting affidavit to clarify any ambiguity or correct a clerical error in the warrant. The majority found that there was no express incorporation of the affidavit or ambiguity that required resort to the affidavit for clarification.

In contrast, Alito noted that one of the paragraphs of the warrant did incorporate the affidavit, at least with respect to the probable cause statements of the affidavit, which Alito concluded created at least an ambiguity that justified reliance on the affidavit. Moreover, there was evidence in the record to support the conclusion that the officers intended to incorporate the affidavit. Given the governing standard for construing warrants, which the majority did not dispute — “commonsense and realistic” — Alito concluded there was sufficient basis to justify the search.

Wholly apart from whether or not search warrant adequately incorporated the supporting affidavit, Alito also believed there were sufficient facts that justified the application of qualified immunity to protect the officers from the lawsuit.

In sum, Alito and the majority largely agreed on the law, but disagreed on whether the facts in the record supported the validity of the search under the warrant. I think the majority probably had the better of the argument on the construction of the warrant and Alito had the better of the qualified immunity issue (there was no evidence that the officers knowingly or willfully violated anyone’s civil rights and plenty of evidence that the officers reasonably believed they were acting pursuant to a valid warrant in the execution of the law). In any event, the case is much closer than your emailer suggests and does not evince an “activist” bent on “statist” results.

after reading this email and the ruling, I’m persuaded.

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