WASHINGTON—As the Bush administration defends its right to eavesdrop on Americans without court permission, a look at Supreme Court nominee Samuel Alito's record on search and seizure matters reveals how few limits he has imposed on the government's power to gather evidence.
A Knight Ridder analysis of more than 300 written opinions by Alito, for example, reveals that he has almost never found a government search unconstitutional and that he has argued to relax warrant requirements and to broaden the kinds of searches that warrants permit.
There are a few exceptional cases in Alito's record, notably a 1998 ruling in which he rejected the search of a black driver's car for a handgun because police practically admitted that race influenced their decision to stop the man. But overall his record in this area has produced near uniform results in favor of government authority.
His work in this area has frequently drawn sharp disagreement from his colleagues on the 3rd Circuit Court of Appeals in Philadelphia, one of whom accused him of approving an "Orwellian" invasion of privacy in one case.
Alito, whose Senate confirmation hearings begin Monday, will likely face pointed questions about his record in this area. Along with his views on the breadth of presidential power, his search and seizure work offers clues as to how he might approach a case challenging the domestic spying program.
In one 2004 case, for example, Alito didn't find fault with an 18-month, round-the-clock surveillance operation that was never approved by a judge.
"His record suggests an extremely strong pro-government bias," said Robert Gordon, senior vice president of the Center for American Progress, a liberal think tank. Gordon separately examined 12 search and seizure cases where other 3rd Circuit judges disagreed with Alito. The Supreme Court nominee did not oppose the government in any of them, he said.
Gordon found Alito particularly likely to question the need for warrants.
"The general idea is that we require warrants because we think advance judicial consent is an important restraint," he said. "He seems fundamentally skeptical of the value of advance judicial approval. That's what the domestic spying cases are all about, too."
Charles Hobson, an attorney with the Criminal Justice Legal Foundation, a group that advocates for the rights of crime victims and their families, said Alito's record has to be considered in appropriate context.
Most criminal appeals based on search and seizure challenges fail, he said, because the Fourth Amendment, which limits government searches, is probably "the most pragmatic of all constitutional amendments."
"Reasonableness is what you have to balance in these cases, and if the remedy for a violation is to exclude evidence that could convict the guilty, the burden is going to be quite high," Hobson said.
"What I would say from his record overall is that he's more appreciative of public safety interests, but he's not out of the mainstream."
Hobson noted that Justice Sandra Day O'Connor, whom Alito would replace on the court, also has been quite cautious in search and seizure cases, as has the Supreme Court in general.
"The government already wins an awful lot of those cases, as it should be," he said. "If you were having a lot of these convictions overturned on appeal, it would suggest the system wasn't working. I don't think Alito's record makes him much different from the other justices in this area."
One of the cases that illustrates how comfortable Alito can be with government surveillance powers came in the federal criminal investigation of Robert W. Lee Sr., who once headed the International Boxing Federation.
In the late 1990s, the FBI conducted an 18-month undercover probe of Lee that involved round-the-clock audio and video surveillance of his conversations in a hotel suite with Douglas Beavers, an informant. Agents didn't seek a warrant for the surveillance.
Lee argued that evidence from the wiretap was all gathered in violation of right to privacy.
But Alito, writing a majority opinion in February 2004, endorsed the legality of the undercover operation, saying that as long as the material used against Lee was the same as what the informant would have testified to in a courtroom, there was no constitutional problem. Alito also reasoned that Beavers had given consent for the surveillance, even if Lee hadn't, and that was sufficient to waive Lee's privacy rights.
The Supreme Court's precedents agree that warrants aren't needed in some cases where informants consent to surveillance.
"A person has no legitimate expectation of privacy in conversation with a person who consents to the recording of the conversations," Alito wrote.
The decision drew a sharp dissent from Judge Theodore McKee, who was particularly concerned the operation went unchecked by any judicial oversight.
"The limitations of that Orwellian capability were not subject to any court order," he wrote.
Alito also has argued that the scope of warrants should be interpreted broadly, sometimes beyond what the warrant says. In this area of law, the rule has long been: If it's in the warrant it's fair game, if it isn't, it's not.
Still, in one case, Alito deferred to government authorities who conducted a broad search of a wholesale distributor's premises with a warrant that didn't specify what police were looking for or how it tied into the alleged criminal activity. The prohibition against such "general" warrants is the foundation of the constitutional limit on search and seizure. But Alito said the warrant wasn't general but was only "too broad" and therefore legal under a Supreme Court exception to warrant requirements.
A dissent in the case noted that the warrant was "so lacking in particularity that no reasonably well-trained officer could execute it in good faith." It also said Alito's reasoning allowed the high court's exception to "swallow" the Constitution's rule against general warrants.
In another case, Doe v. Groody, Alito said police didn't violate the rights of a mother and her 10-year-old daughter, who were strip-searched during the search of a drug dealer's home even though the mother and child weren't mentioned in the warrant.
Michael Chertoff, now secretary of the Department of Homeland Security and a former 3rd Circuit judge, said in the court's ruling that the search wasn't legal.
The "face of the warrant ... does not grant authority" to search the girl or her mother, he wrote. Citing a recent Supreme Court precedent, Chertoff said police rarely could exceed the bounds of a warrant.
But Alito argued that the recent Supreme Court ruling didn't address the facts in the strip-search case, so it didn't control his decision. He said he shared the majority's "visceral dislike" for the search of a child but added that it is "a sad fact that drug dealers sometimes use children" to do their business.
In another similar case, Alito approved the search of a mother and her children as they approached a relative's house for dinner. Police had a warrant to search the relative and his home; it too didn't include the mother and her children.
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(c) 2006, Knight Ridder/Tribune Information Services.
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