Wednesday, November 16, 2005

Alito's Social Systems Perspective

LiberalChicks has a number of intersting vignettes that involve the effects of a relationship on bringing out the underlying characer of a person and how deviation from the expected and not just what is done or said is important. In the case, considered by the judge, of 'the search warrant,' as my link below comments, the 'problem' of filling out the search warrant form is, frankly, an evolving object relationship, and you have to think about how, in this case the police, doing this might change 'expected behavior.' Alito's first publication, "The Released Time Cases Revisited: A Study of Group Decisionmaking by the Supreme Court," 83, no. 6 Yale L. J. (1974): 1202-36 (pdf), got into this issue. For me it is fascinating that someone, as a judge, who would seem to me to be so removed from social systems in his work, is actually so insightful and interested in them as a part of his decison making.

4 comments:

Trish said...

Thanks for the mention/link to my blog.

I see your point that the unexpected can happen when executing a warrant,(the behavior of the police in Doe vs Groody case) and I read that the police can search a person not named in a warrant if they have "independent probable cause to search other persons who happen to be present". I also read that if an officer "has a reasonable suspicion that an onlooker is engaged in criminal activity, the officer can only question the onlooker" and "conduct a frisk for weapons" for the officer's safety. and NOT perform a full search

I claim no legal knowledge, but isn't the entire point of demanding a warrant before conducting a search to prevent the police from using their "feelings" or "hunches" to decide whom to search.

Of course, the fact that it was a little girl who was searched clouds the issue. (I mean it is difficult to justify and seems kind of icky) If the person in the case we are referring to who was searched was a known felon and a fellow neighborhood drug dealer but who wasn't named in the warrant, would I feel differently?

I have to admit that I might. I know that is wrong. If I disagree with Judge Alito's opinion, it shouldn't just be b/c the person searched was a kid. I should be appalled if anyone was illegally searched, but I admit it: I wouldn't be as upset if the illegal search had been conducted on an adult who was a known criminal.

a psychiatrist who learned from veterans said...

Heh, thanks for the reply. The point however is one, among a set of related issues, I think you address repeatedly in your stories. I recall in the story, if I might call, 'the fling' that you illustrate the point that a cetain gift of intimacy requires a softness in approach. In other words, the significance of someone saying 'You have deep secrets' is inapropriate in the way made because of the new track the relationship has put this person on whereas said from an acquaintance in another context it might even be a pleasant comment.

In the case Judge Alito looked at my quotes are from the afffidavit. It states an intention to search all occupants and gives reason for that reaffirming the intent with a rationale. My understanding of Alito is that the police, having said that in response to the main portion of the warrant, have put themselves on a track to do this and, in addressing another part of the form, through a desire to indicate the principle figure (or answer a different question) or distraction from repeatedly addressing the same issue, though, in that context, suggest a different search request, you have to look at the totality of the request, which is what your vignettes illustrate.

Trish said...

Michael,
If I am reading your point correctly, then it's about context. The context of the situation that the police found themselves informs the decisions they made.

mike brophy said...

The 'context' of the applcation for a warrant gives the meaning of the warrant. You inspired a nw post, 'Double Bind, Liberal Chiks, and Holden Caulfield,' which is a comment in Left-Handeditis