Scalia’s property-based approach is “unwise,” Justice Alito wrote. “It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial.”
He questioned how it would apply in cases in which the government tied its surveillance to factory-installed GPS devices in vehicles or to smart phones equipped with GPS.
In past decisions in recent years, the court has examined whether a subject had a “reasonable expectation of privacy” at the time of the particular government intrusion. Scalia’s private-property approach had fallen out of favor through disuse by the court, but according to Scalia, had never been overruled.
“What we apply is an 18th-century guarantee against unreasonable searches, which we believe must provide at a minimum the degree of protection it afforded when it was adopted,” Scalia wrote.
“The concurrence [by Alito] does not share that belief. It would apply exclusively [the] reasonable-expectation-of-privacy test, even when that eliminates rights that previously existed,” he said.
Scalia said under his approach, Fourth Amendment rights would be protected under both the private-property and the reasonable-expectation rationales.
The high court appeal stems from the investigation of nightclub owner and suspected drug trafficker Antoine Jones in Washington, D.C., and Maryland.
Police and federal agents suspected Mr. Jones was involved in selling significant quantities of cocaine. They maintained surveillance of Jones and his nightclub. They installed a video camera near the club and tapped his cell phone.