
The 4th Amendment does not prohibit unreasonable searches--only unreasonable searches of the few
items it specifically mentions.
The 4th Amendment's fundamental concern is not even a search
per se--it's concern is
physical trespass.
The 4th Amendment is not even concerned with all physical trespasses--but only a physical trespass of an
item it specifically mentions.
The Court's decisions protecting private activities from unreasonable searches (rather than protecting specified areas from physical trespass)--are
deviations.
The Court's earlier decisions
permitting warrantless wiretapping, warrantless
eavesdropping, and warrantless searching of
private property other than the house were correct under the 4th Amendment.
The GPS search in this case was unconstitutional, not because of its unreasonable invasion of personal privacy, but because the police
"trespassorily" "encroached on a protected area."
--Justice Scalia's view of the 4th Amendment,
as expressed in his opinion for the majority in U.S. v. Jones
The 4th Amendment cannot be applied using 1791 trespass law.
The 4th Amendment must be adapted to 21st century technological surveillance.
A physical trespass is not the same as a search--nor is a physical trespass required for one.
4th Amendment doctrine must be concerned with modern, electronic surveillance, whether trespassory or not.
4th Amendment decisions that focused on physical trespass of a specified item have been repudiated.
The prolonged GPS search in this case was unconstitutional because it was an
unjustified intrusion on privacy that reasonable people expect.
--Justice Alito's view of the 4th Amendment,
as expressed in his separate concurring opinion
Before going further, let's look at a few of the Court's past decisions that Scalia relied upon and explained with approval. Some, including me, may find this alarming.