This brings us to Alito’s dissent. He begins with some vague language that search warrants are “normally drafted by nonlawyers in the midst and haste of a criminal investigation” and cites to United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). However, that quote from Ventresca concerned the quantum of evidence required for probable cause. No part of the Ventresca opinion excused the absence of probable cause to search places or people (in the case of Doe, his wife and daughter).
This language is followed by Alito’s assertion that the ‘commonsense and realistic’ reading is that the issuing magistrate intended to authorize a search of all the occupants of the premises and that the warrant did so. In support of this bald assertion, Alito focuses on the intent of the officers, as opposed to the intent of the issuing judge, or more importantly, the plain language of the search warrant.
Alito continues that “At their depositions, both of the officers who signed the affidavit explained why they did not note in the box in question that the warrant authorized a search of all occupants of the premises. They stated that there simply was not room in that box.” Even if this pathetic explanation could be believed, it ignores the fact that it was the officers and other law enforcement officials who were responsible for drafting the affidavit which did not provide for a “large enough box”. Furthermore, there is no reason to believe that the officers were incapable of writing smaller, modifying the size of the box that they created, or attaching an additional piece of paper that provided them with more room to write. See Groh, a case cited by Alito and the majority, and holding that “Because petitioner himself prepared the invalid warrant, he may not argue that he reasonably relied on the Magistrate’s assurance that the warrant contained an adequate description….” Id. at 124 S.Ct. at 1293.
Moreover, it is well established in New Jersey and at the federal level that an otherwise insufficient affidavit cannot be rehabilitated by subsequent testimony concerning information not disclosed by the affiant when he sought the warrant. State v. Marshall, 398 N.J. Super. 92, 101 (App. Div. 2008). See also Whiteley v. Warden, Wyo. Penitentiary, 401 U.S. 560, 565 n. 8, 91 S.Ct. 1031, 1035 n. 8, 28 L.Ed.2d 306, 311 n. 8 (1971) (holding that “an otherwise insufficient affidavit cannot be rehabilitated by testimony” at a later suppression hearing “concerning information possessed by the affiant when he sought the warrant but not disclosed to the issuing magistrate” because “[a] contrary rule would … render the warrant requirements of the Fourth Amendment meaningless”); Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.3(a) at 505 (4th ed. 2004).
Note that while the Doe opinion addressed the civil case brought on behalf of the aggrieved wife and daughter, it is clear that Alito would have also found the search valid under the fourth amendment in the criminal context. He wrote, “I would hold that the warrant did in fact authorize a search of all persons on the premises, including Jane and Mary Doe.”
In light of the foregoing, it is no wonder that Justice Alito’s nomination was formally opposed by the ACLU (an organization for which fellow Justice Ruth Bader Ginsburg served as General Counsel). The ACLU has only taken this step two other times in its entire history, the last time being with the nomination of Robert Bork who was rejected by a 58–42 vote in the Senate in 1987. In releasing its report on Alito, the Executive Director justified the decision saying that “At a time when our president has claimed unprecedented authority to spy on Americans and jail terrorism suspects indefinitely, America needs a Supreme Court justice who will uphold our precious civil liberties. Alito’s record shows a willingness to support government actions that abridge individual freedoms.”