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.