TCS Daily

Sam Alito, Searching and Seizing

By Edward J. Loya - November 21, 2005 12:00 AM

The Fourth Amendment protects individuals from "unreasonable searches and seizures." Accordingly, an understanding of how Judge Samuel Alito voted on Fourth Amendment cases is crucial to determining how his presence on the Supreme Court might impact one of our most fundamental liberties. Some commentators have argued based on one or two of Judge Alito's Fourth Amendment opinions that he would vote to undermine our rights generally. Whatever may be Supreme Court nominee Alito's overall jurisprudence, however, his Fourth Amendment opinions do not reveal any definable ideological theme.  

His opinion in United States v. Lee, 359 F.3d 194 (2002) is a useful place to begin. In that case, an informant had booked a hotel suite for the suspect and, prior to the suspect's arrival, allowed police officers to install recording equipment inside the room. Relying on the informant's consent, the officers conducted video and audio surveillance of conversations inside the room that occurred when the informant was present.  

Judge Alito held that warrantless audio and video monitoring of conversations between the suspect and an informant did not violate the Fourth Amendment. He recognized that, under the Court's surveillance cases, "if a person consents to the presence at a meeting of another person who is willing to reveal what occurred, the Fourth Amendment permits the government to obtain and use the best available proof of what the latter person could have testified about." He therefore concluded that there is no constitutional difference between consensual audio surveillance, which has been upheld in previous cases, and the video surveillance that occurred in Lee.  

Although Judge Alito made clear that Fourth Amendment concerns might arise in three circumstances -- namely, where the defendant has an expectation of privacy in the premises at the time the video recording devices are installed, where recordings are made when the consenting informant is not present in the room, and where the recording device picks up information that the informant could not perceive -- some commentators have interpreted Judge Alito's Lee decision to mean that he would further expand law enforcement's technology-based investigatory measures. Even more broadly, they suggest that Judge Alito's Fourth Amendment jurisprudence reflects a right-wing agenda.  

If the inquiry into Judge Alito's Fourth Amendment decisions were to end with the Lee case, there might be some merit to these claims. A review of Judge Alito's less well-known opinions, however, suggests otherwise.  

While a coherent approach to surveillance cases might be high on the imaginary list of conservative Fourth Amendment things-to-do, libertarian-conservative scholars have placed more profound Fourth Amendment proposals on the table. Among these is the idea that traditional civil-enforcement liability should replace the exclusionary rule as an appropriate remedy for Fourth Amendment violations. Under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), they point out, a plaintiff may state a cause of action under the Fourth Amendment for damage that results from a federal officer's search-and-seizure violation. Further, under 42 U.S.C. Section 1983, a plaintiff may state a claim if he alleges that a state officer "under color" of state law has deprived the plaintiff of his Fourth Amendment right. Accordingly, there no need for the judge-made exclusionary rule -- what they regard as a work of constitutional fiction.  

But in several cases, Judge Alito has suggested that, even if the plaintiff successfully mounts a Bivens action, it would be difficult to convince him that the federal officer's conduct was not protected by his qualified immunity. In Leveto v. Lapina, 258 F.3d 156 (2001), for instance, at 6:30 a.m. armed IRS agents, executing a search warrant at a tax-payer's residence, performed a "protective pat-down" of the taxpayer's wife, Mrs. Leveto, who was wearing only a nightgown.  

Judge Alito held that, in view of the Court's decision in Ybarra v. Illinois, 444 U.S. 85 (1979), the plaintiffs successfully asserted a Fourth Amendment violation under Bivens, because the officers lacked reasonable suspicion that they were dealing with a suspect who was armed and dangerous. Judge Alito, however, found that the IRS officers were entitled to qualified immunity, because there was "uncertainty in the case law."  

Similarly, in Section 1983 cases, Judge Alito has suggested that he would shield state officers from liability. In Doe v. Groody, for instance, plaintiffs resident and her 10 year-old-daughter filed a complaint under Section 1983, alleging that officers who executed a search warrant violated their Fourth Amendment rights when they subjected the plaintiffs to strip-searches for contraband.  

In his dissenting opinion, Judge Alito argued that, although the warrant solely authorized the search of John Doe, the strip-searches were constitutional in view of the officers' affidavit, which requested permission to search "all occupants" on the premises. Further, Judge Alito emphasized that "[e]ven if the warrant did not confer such authorization [and the searches were unconstitutional], a reasonable officer certainly could have believed that it did." He therefore would have ruled that the officers were protected by their qualified immunity.  

Thus, Judge Alito's opinions in Leveto and Groody actually undermine the libertarian-conservative position that constitutional and statutory tort liability is a viable alternative remedy for Fourth Amendment violations.  

Some might argue that these opinions further a conservative Fourth Amendment approach, in that they provide for greater government intrusion. But even if one were to analyze Judge Alito's rulings in view of this brand of conservatism, his decisions would not be so categorized. Indeed, Judge Alito has demonstrated that he is willing to curtail the exercise of what some may consider legitimate government discretion.  

In United States v. Kithcart, 134 F.3d 529 (1998), for instance, an officer arrested a black man, who was driving in a black sports car, based on radio transmissions that stated that "two black males in a black sports car" had committed three bank robberies in the immediate area.  

A radio transmission described the suspects' vehicle as a "possible Z-28, possible Camaro." Accordingly, the officer arrested a black man in a black Nissan 300ZX ten minutes after receiving the final radio transmission. The officer stated that she had not seen a car or person fit that description from the time the first radio transmission went out to the time the officer spotted the suspect (a period over an hour).  

Judge Alito reversed the district court's determination in favor of the arrest, and held that the officers lacked probable cause to make an arrest of the robbery suspect. He emphasized that "[t]he mere fact that Kithcart is black and the perpetrators had been described as two black males is plainly insufficient." Tellingly, he went on to say that "armed with information that two black males driving a black sports car were believed to have committed three robberies in the area some relatively short time earlier, [the officer] could not justifiably arrest any African-American man who happened to drive by in any type of black sports car."  

Similarly, in Bolden v. Southeastern Pennsylvania Transportation Authority, 953 F.2d 807 (1991), Judge Alito struck down a state drug testing program. In that case, Judge Alito held that mandatory suspicionless drug-testing of maintenance custodians did not fit within the "special needs" exception to the warrant requirement. In reaching this conclusion, he emphasized that maintenance custodians are not heavily regulated employees, and that they do not pose a significant threat to the general public.  

Thus, in Kithcart and Bolden Judge Alito showed that he is willing to protect individuals against abusive government policing and regulation.  

What do these cases tell us about Judge Alito? At the very least, they suggest that he is a jurist who decides cases based on the facts before him, without regard to an ideological agenda. But what is most important is not so much what the cases say about Judge Alito, but what they say about those who comment on some of the judge's Third Circuit opinions.  

His opinions suggest that commentators who do not consider Judge Alito's Fourth Amendment jurisprudence with all its nuances -- but instead seek to minimize his potential to contribute to the U.S. Supreme Court by focusing on one or two select cases -- are making a serious intellectual mistake.  

Edward J. Loya, Jr., a Stanford Law School graduate, teaches at California Western School of Law in San Diego.

TCS Daily Archives