WASHINGTON – When Supreme Court nominee Samuel Alito was a member of a three-judge panel of the 3rd U.S. Circuit Court of Appeals, he participated in a 2003 case involving the strip-search of a 10-year-old girl.
The judge's comments in that matter are likely to come up again in Senate confirmation hearings as detractors call it a case that puts him outside the mainstream.
Click in the video box to the right to watch a report by FOX News' Megyn Kendall.
In Doe v. Groody, Alito defended a police search done near Pottsville, Pa. Police had a warrant to search the home of a suspected narcotics dealer. As part of the search, a female officer ordered the man's wife and 10-year-old daughter to partially disrobe. No drugs were found on the female pair, but the man was arrested and pleaded guilty to drug charges.
The family sued the officers, arguing the warrant did not allow the search of the mother and daughter.
"For that reason, when the police went ahead and strip-searched them, it exceeded their authority under the 4th Amendment," said Seth Rosenthal, legal director at the Alliance for Justice.
In an opinion written by then-appeals court judge Michael Chertoff, a divided 3rd Circuit panel agreed, concluding that although police sought permission in an affidavit to search those in the house, the warrant didn't grant it.
"There is no reasonable basis for an officer to exceed the scope of a warrant just because he asked for broader search authority in the affidavit," the majority wrote.
Alito dissented from Chertoff's opinion, concluding that the warrant effectively incorporated the affidavit. Applying what he called a "common sense" approach, Alito then concluded that "the magistrate intended to authorize a search of all occupants of the premises ... Even if the warrant did not confer such authorization, a reasonable officer certainly could have believed that it did."
His supporters find the dissent unremarkable.
"Judge Alito, following Supreme Court precedent, which says search warrants should be construed in a reasonable and common sense fashion, not in an overly technical or legalistic one, said sure, a reasonable police officer would think that searching a drug suspect's wife and daughter who were found ... in his house, was appropriate," said Wendy Long, counsel for the Judicial Confirmation Network.
But others, like Democratic National Committee Chairman Howard Dean, say the dissent proves Alito is an extremist. Others say it justifies serious concern.
"Here is a judge who his exceedingly deferential — too deferential — to executive power, to police power, and not respectful enough of the rights that our Constitution guarantees," Rosenthal said.
Alito's detractors cite the case to say Alito approved the strip-search of a little girl.
Alito's dissent made clear that he "shared the majority's visceral dislike" of what happened to the child, but, he said it is a sad fact that drug dealers sometimes misuse their children. It is this distinction between personal and legal views that is likely to get considerable attention at Alito's confirmation hearings, scheduled for next month.
Meanwhile, the Justice Department on Monday provided about 470 pages of documents from 1985-1987 when Alito served in the Office of Legal Counsel as deputy assistant attorney general. The pages may offer more insight into how much deference Alito gave to his government boss.