The Supreme's Cell Location Data Decision: Right, Revealing, and a Real Milestone

(Today's "travel ban" decision was another pathetic partisan divide. The 5 Republicans vs the 4 Democrats. We'll discuss that next. But first, this privacy/search & seizure milestone.)

The Supreme Court ruled this past Friday that when government tracks a person's movements and whereabouts--in this case for 4 months, using cellphone location data--that is a search. Speaking through Chief Justice Roberts' majority opinion in Carpenter v. U.S., the Court held that government must (except, for example, in an emergency situation) obtain a warrant, supported by probable cause, before it may engage in such a comprehensive technological scrutiny of someone's private life.

Now, that decision may not seem so earthshaking. Well of course that's a search! Well of course the Constitution generally requires a warrant and probable cause for a search! Well of course the government shouldn't be allowed to examine the data that my cellphone company has about my cellphone's location in order to monitor my every movement--unless it has some good reason (i.e., probable cause) and gets a warrant!

Well, you might think so, and the Supreme Court now agrees. Yes, now, and by a mere 5-4 vote!

Chief Justice Roberts was the deciding vote in Carpenter. He joined the Court's 4 liberals (Justices Ginsburg, Breyer, Sotomayor, and Kagan) and he assigned himself the opinion for the resulting majority. His opinion was a milestone. Not only for the particular result in the case--to repeat, government must get a warrant supported by probable cause in order to track a person's movements through cellphone location data. But also because Roberts re-invigorated one of the Court's foremost privacy-protecting landmarks. And because he declined to apply the Court's privacy-limiting precedents.

As for the 4 dissenting Justices, they all authored their own opinions presenting different arguments why Roberts and his majority were wrong.

[We've discussed at length in New York Court Watcher the nonsense--and dangerous nonsense at that--of the Supreme Court's search and seizure jurisprudence that has developed over the past few decades. It has developed largely in order to avoid excluding evidence obtained from unconstitutional searches. So the Court has disingenuously ruled that many searches are not really "searches" and, therefore, that they are not subject to constitutional protections.
A police helicopter hovering over your backyard to search your property--that's not a "search." A search of your private property away from your house--that's not a "search." A search of all the contents of your garbage put out for pick-up--that's not a "search." A search by police canines sniffing your body--that's not a "search." And lots more. No, none of these are "searches" according to Supreme Court decisions
Consequently, in such "not-a-search" situations, the 4th Amendment's prohibitions against unreasonable searches and seizures just don't apply. The government need not get a warrant or have probable cause or even have some reasonable suspicion. No, nothing! No justification whatsoever is required for these searches under the Constitution because, the Court has told us, they are not really "searches."
Yes, it's hard to believe until you actually read these decisions.
(See Supreme Court: Right on GPS Surveillance--But BEWARE! (part 1); The GPS Decision--part 2: Scalia's Dangerous Nonsense & Alito's Rebuttal; The GPS Decision--The Video)]

Let's consider the search & seizure case law particularly relevant to the issue in Carpenter.

The 4th Amendment of the Constitution protects against "unreasonable searches and seizures." In furtherance of that protection, it declares that "no Warrants [to conduct searches or seizures] shall issue, but upon probable cause." In it's 1967 landmark decision in Katz v. U.S., the Supreme Court ruled that the 4th Amendment "protects people, not places." That amendment, the Court elaborated, was intended to protect the legitimate privacy interests that people have in a free society--not the limited items that happen to be specifically mentioned in that amendment.

The Court in Katz was adopting the view expressed in one of the most famous dissents in Supreme Court history, authored by one of the truly great Justices in that history--the dissent of Louis Brandeis in Olmstead v. U.S. (1928). The majority in Olmstead  held that the Constitution provided no protection against government eavesdropping on the defendant's private phone conversations. No warrant needed. No probable cause needed. The reasons? Conversations are not one of the "tangible' or "material" "things" specifically mentioned in the 4th Amendment. Also, the outside telephone wires that the government tapped belonged to the telephone company, not to the defendant.

Brandeis rejected that reasoning. He argued, in these oft-repeated lines, that the Constitution "conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment." Nearly 40 years later, in the Katz landmark, the Court overruled Olmstead and similar decisions, and it embraced Brandeis's view of protected privacy. Henceforth, all government intrusions upon legitimate expectations of privacy would have to be justified--by probable cause supporting a warrant.

But then...

In the decades that followed Katz, as "law and order" Justices were being appointed and the Court was retrenching from decisions that were protective of the rights of the accused, the Court variously and persistently diluted that landmark. So, for example, the Court adopted the so-called "third party doctrine." In short, if you allow someone else to have information about you--e.g., your bank has records of your transactions and your phone company has records of the numbers you've called or which have called you--then you have no Katz privacy rights in that information, even from a government investigation. And so the 4th Amendment provides no protection.
(I'm not saying that follows logically, but only saying that's what the Court has ruled.)

Then there's the curious reemergence of (what I will call) the "not specifically mentioned doctrine" and, relatedly, the "trespass doctrine." In these latter dilutions of Katz--actually breaks from it--the Court has insisted, for example, that while the 4th Amendment specifies "houses" for protection, it does not mention the private property beyond a house. So there is no 4th Amendment protection for the deceptively labelled "open fields"--i.e., actually any private property a homeowner has beyond the immediate area of the home itself. The Court has also insisted that the 4th Amendment is really about property rights and about preventing the government from "trespassing"--i.e., physically invading without permission--upon one of your "tangible" "things" that are mentioned in that amendment. So, only nonconsensual invasions of your person (body), house, papers (documents), or effects (personal property). No "trespass" on one of those? Then no 4th Amendment protection.

Sooooo, under the "third party doctrine," since you've "allowed" your bank and your phone company to have records about you, the government doesn't need a warrant or probable cause--or any other justification--to search your records. Also, because your private property beyond your house is not mentioned in the 4th Amendment, the same thing. And as long as the government does not "trespass" upon you or your car (which is an "effect" or personal property), apparently no warrant or probable cause is required to conduct unlimited surveillance on your comings and goings.

That's was state of 4th Amendment search and seizure jurisprudence when the Court was deciding the cellphone location data issue in Carpenter.

So how exactly did Chief Justice Roberts reach the result he did for the Court's majority? Here's an outline of the critical highlights:

• Roberts stated the issue in the case succinctly and without any ideological slant at the outset: "whether the Government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user’s past movements." [My emphasis whenever in bold.]
• He then described the purpose of the 4th Amendment in terms of privacy and the Court's privacy-protective landmarks: 
• "The 'basic purpose of this Amendment,' our cases have recognized, 'is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.' Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523, 528 (1967)." and
  "In Katz v. United States, 389 U. S. 347, 351 (1967), we established that 'the Fourth Amendment protects people, not places,' and expanded our conception of the Amendment to protect certain expectations of privacy as well."
• Roberts then declined to apply the Court's 2012 decision in the GPS tracking case, U.S. v. Jones, in terms of Justice Scalia's majority opinion which had characterized the 4th Amendment in terms of trespass upon property rights. (I.e., Scalia wrote that the GPS monitoring of the driver's movements implicated the 4th Amendment because government officials had physically trespassed on his car by attaching a GPS device without his consent--not because electronically monitoring his movements without a warrant was an intrusion upon his privacy rights. In fact, Scalia disparaged Katz as a "deviat[ion]." See The GPS Decision--part 2: Scalia's Dangerous Nonsense & Alito's Rebuttal.)
• Instead, Roberts emphasized that 5 Justices in Jones had underscored the "privacy concerns" underlying the 4th Amendment--i.e., Justice Alito's concurring opinion, joined by Ginsburg, Breyer, and Kagan, arguing that Katz governed the case and denouncing Scalia's disinterment of the trespass doctrine as outmoded and long overruled; and Sotomayor's lone concurring opinion, joining Scalia but also applying Katz.
• Reaffirming the view of those 5 Justices--a majority of the Court--instead of Scalia's "trespass doctrine," Roberts noted that, "Since GPS monitoring of a vehicle tracks 'every movement' a person makes in that vehicle, the concurring Justices concluded that 'longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy'.”
• Then, addressing the "third party doctrine," Roberts explained that at the time those earlier precedents about bank records and phone records had been decided in the '70's, "few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements. We decline to extend Smith [bank records] and Miller [phone records] to cover these novel circumstances." 
• Roberts elaborated further on the extent and implications of cellphone data on 4th Amendment privacy rights: "[A] cell phone logs a cell-site record by dint of its operation, without any affirmative act on the part of the user beyond powering up. Virtually any activity on the phone generates [location information], including incoming calls, texts, or e-mails and countless other data connections that a phone automatically makes when checking for news, weather, or social media updates. Apart from disconnecting the phone from the network, there is no way to avoid leaving behind a trail of location data. As a result, in no meaningful sense does the user voluntarily 'assume[] the risk' of turning over a comprehensive dossier of his physical movements...The Government’s acquisition of the cell-site records was a search within the meaning of the Fourth Amendment."
• Finally, lest there be any doubt that the Chief Justice intended to re-enforce the privacy rights character of the 4th Amendment and, simultaneously, to re-inter the outmoded views that had already been overruled in Katz  (but were nevertheless re-embraced in Scalia's majority opinion in Jones--the GPS case), Roberts returned to Brandeis and his dissent in Olmstead: "As Justice Brandeis explained in his famous dissent, the Court is obligated—as '[s]ubtler and more far-reaching means of invading privacy have become available to the Government'—to ensure that the 'progress of science' does not erode Fourth Amendment protections. Olmstead v. United States, 277 U. S. 438, 473–474 (1928)."

As for the 4 dissenters:

• Justice Kennedy argued that the "third party doctrine" precedents should be applied, and that they "dictate that the answer is no" 4th Amendment "search" was conducted in this case.
• Justice Thomas, echoing the majority opinion in Olmstead--rather than the Brandeis dissent--argued that the question in this case was "whose property was searched," and the cellphone location data belonged to the cellphone company, not to the defendant.
• Justice Alito argued that a subpoena for the cellphone company to present records--which was involved in this case--did not implicate the same privacy concerns as would an actual search of  the defendant's premises, papers, or personal property.
• Justice Gorsuch argued against Katz as being at odds with the original meaning of the 4th Amendment and unworkable. Instead, "if a house, paper, or effect is yours, you have a Fourth Amendment interest in its protection"--but not with regard to the cellphone company's records or your location and movements.

So there it is. I know this was a bit long and detailed. But this decision is so vitally important for fundamental privacy protection amidst such extraordinary and extraordinarily rapidly advancing technology.

As far as the Supreme Court itself is concerned, the significance of this case includes being decided by a bare majority, Chief Justice Roberts being the deciding vote, his siding with the 4 liberal Justices, his rejecting the application of older precedents to answer a modern technological question, his even rejecting a recent majority opinion--by Justice Scalia--that sought to resurrect an old view of the 4th Amendment, and his leaving no doubt that the privacy concerns expressed in Brandeis's dissent in Olmstead (not the Court's decision in that case) and later adopted in Katz are the governing principles of the 4th Amendment.

As for the dissenters, Justices Kennedy and Alito argued in favor of applying previous decisions of the Court that would have precluded the reach of Katz to this case and, presumably, to other analogous intrusions made possible by advancing technology. Justices Thomas and Gorsuch would abandon Katz--largely or entirely--and would restrict 4th Amendment protections to its original or literal limits, regardless of the changed realities of the modern world.

So one vote made the difference. A departure of one of the liberal Justices--and the retirement of the elder Ginsburg or Breyer in the not too distant future is certainly a possibility--or even of the Chief Justice, would likely result in the Court's narrowing of the Carpenter decision. A fortiori if the departing Justice is replaced by the current President or by a conservative successor. In fact, if such were to occur, it is likely that those antiquated "third party" and "trespass" and "not specifically mentioned" doctrines would be rehabilitated and applied to constrict constitutional privacy protections.

That thought--at least to me--is dismaying. But for today, the Carpenter decision is cause for celebration and some hope.

A Supremely Blockbuster New Term?

For much of the last two terms, the United States Supreme Court was short one Justice. The vacancy created by the death of Justice Antonin Scalia in early 2016 remained unfilled until the appointment of Neil Gorsuch late last term. During that interim period, the eight sitting Justices came to a 4-4 draw in several cases; in other cases, the competing ideological sides obviously compromised in order to render some decision; and in still other cases, the Justices either declined to grant review or they did grant review in cases that would be heard when there would be a full complement of nine Justices.

For the 2017-18 term of Court that is to begin Monday, October 2--the iconic First Monday in October--the cases that are already on the Court's docket strongly suggest that this will be a year of blockbuster decisions. It is always possible, of course, that the Justices will bob and weave and avoid confronting some of the hot-button constitutional questions at the heart of these cases. But with four Justices who lean very politically conservative, and four very politically liberal--oftentimes leaving Justice Anthony Kennedy to cast the deciding vote-- the Court can be expected to resolve some very ideologically-contentious issues with some very ideologically-charged rulings.

Here are several of the most significant issues the Court will tackle this term:

Partisan Gerrymandering
As in extreme gerrymandering. As in extreme mathematical efficiency to virtually guarantee that the political party in power remains in power. As in making it extremely difficult for that party to lose elections.
So, for example, in the case to be heard by the Court this week, Gill v. Whitford, the Republican party in power in Wisconsin has carved up voting districts in the state in ways that severely dilute the effect of Democratic votes. This gerrymandering has, in fact, produced a near certainty that the Republicans retain control of the legislature. Indeed, even when the Democratic party has won a substantial majority of the statewide vote in recent years, the Republicans have still won a substantial majority of the voting districts.
[Yes, Democrats have done the same thing when they can.]
Racial gerrymandering is unconstitutional. But what about partisan gerrymandering? Is it just another "political question" which the majority of the Court believes should be resolved in the political process? Or is partisan gerrymandering, at least in extreme cases, a fundamental violation of our democratic voting process that calls for a judicial redress?

Gay Rights/Religious Liberty
What happens when equal rights for gays and lesbians competes with religious objections to supporting their life choices? In Masterpiece Cakeshop v. Colorado, a baker refused on religious grounds to make a cake for a same-sex wedding. Colorado ruled that this refusal was a violation of the state's public accommodation law which, among other things, prohibits sexual-orientation discrimination.
There are many legal and constitutional ingredients relevant to this case. Nevertheless, it is a pretty sure bet that predetermined positions on LGBT rights will be reflected in the voting of most, if not all, of the Justices. For example, it is very very difficult to conceive of Justices Ginsburg and Sotomayor siding with the religiously objecting baker against the same-sex couple. It is at least as difficult to imagine Justices Thomas and Alito and Gorsuch siding with the same-sex couple against the baker. On the other hand, it is not difficult to see Justice Kennedy--or even Chief Justice Roberts--actually balancing the competing interests and determining the outcome of the case.
There are a few wrinkles that may affect the Court's decision. One has to do with the requested design of the cake in question--would the baker be required to include a message on the cake that expresses support for same-sex marriage, perhaps infringing on the baker's free speech?
Another wrinkle involves the current state of 1st Amendment religious liberty under which any "otherwise vaild law" defeats religious objections--thanks to the 1990 Scalia-authored decision, in Oregon v. Smith, derogating the religious freedom of Native Americans. [See Justice Scalia's Record (Part 1), New York Court Watcher, Feb. 18, 2016; The Fall of Free Exercise, 70 Alb. L. Rev. 1399 (2007).]
One last wrinkle to mention is that Colorado apparently does allow exemptions from its public accommodations law--e.g., an African-American baker need not include a white supremacy message. That raises the question of whether the state is discriminating against religious requests for exemptions.

Technology-Enabled Searches
When seeking a cell phone company's location records on a cell phone user, must law enforcement first obtain a warrant? Or as the Court has often styled the issue in other cases, when the government seeks to obtain and examine such records, is that a "search" within the meaning of the 4th Amendment? If it is, then a warrant supported by probable cause is required. If it's not a "search," then no warrant is required. This is the question presented in Carpenter v. U.S.
Whether or not the Court will view obtaining and examining cell phone location records as a "search"--thus triggering the warrant requirement--depends upon whether or not a majority of the Justices adhere to some search and seizure doctrines it has applied in the past. Some of these doctrines were, until recently, thought to have been permanently rejected by the Court. Others have never been explicitly rejected, but seem to have been weakened in Court decisions involving technology.
One of these doctrines is that a search is not a "search" unless there is a "trespass"--some illegal entry or contact--by the government on one of the things mentioned in the 4th Amendment. Sooooo, since the location records kept by a cell company do not belong to the cell phone user, there is no "trespass" upon something he owns and, thus, there is no "search." Additionally, cell phone location records are obviously not mentioned or even implicated by any of the items listed in the 4th Amendment which was ratified in 1792 (or its state government application via the 14th Amendment of 1868). 
Then there's the 3rd party doctrine. Since the cell phone company--the 3rd party--has access to the cell user's location, there is no "reasonable expectation of privacy" in such records and, thus, the government's examining of those records is not a "search" under the 4th Amendment.
[Hey, those aren't my doctrines. Like others--other courts, other judges and justices, other rulings--I disagree with those doctrines and, indeed, believe they are preposterous and were developed to approve very questionable, warrantless searches. See Is a Search a Search.]
We might see whether the Court abandons or at least further undermines those doctrines--or sticks to them.

Union Dues
May a state require non-members of a public employees union to pay some reduced dues (aka "agency fees") to help defray the expenses of collective bargaining and other services that the union provides for all the covered public employees, whether members or not?
The Court approved such dues in its 1977 decision in Abood v. Detroit Bd of Ed. But since then, some of the Justices have made clear their disagreement with Abood. Then, in 2016, following Scalia's death, the Court split 4-4 on that issue in Friedrichs v. California Teachers Assn.
Now, in Janus v. American Federation of St, Cnty, and Munic Employees (AFSCME), which the Justices just granted review last week, that question is back before the Court.
The issue pits the need of public employee unions in representing the rights of the workers against the counter claims of free speech and association of non-members who do not wish to support the positions of the unions--bargaining or otherwise.
Gorsuch would seem to be the tipping vote, ending the 4-4 tie, and that should not give comfort to the unions. But will both Roberts and Kennedy agree to actually overturn Abood? Stay tuned.

Anti-Gay Employment Discrimination (possible case)
Is discrimination against gays and lesbians a violation of the civil rights laws? The 11th Circuit Court of Appeals--the federal appellate court that sits in Atlanta, GA--recently ruled, in Evans v. Georgia Regional Hospital, that discrimination against a worker because she is a lesbian does not violate Title VII of the Civil Rights Law. That 1964 law prohibits sex discrimination, but it does not explicitly prohibit sexual-orientation discrimination.
The Obama administration took the position that sexual orientation discrimination is a form of sexual discrimination. Among other things, it is based on discriminatory sexual stereotyping--e.g., a man may partner with a woman, but a woman may not; a woman may partner with a man, but a man may not. By contrast, the Trump administration has argued that sex discrimination covers no such thing.
The 7th Circuit, the federal appeals court that sits in Chicago, recently took the position in Hively v. Ivy Tech that prohibited sex discrimination does include discrimination based on sexual-orientation. Notably, that court's position was supported by several of the federal judiciary's well-recognized heavyweights, including Judges Diane Wood, Frank Easterbrook, and Richard Posner--the latter authoring a separate concurring opinion arguing the irrational bigotry of discrimination against gays and lesbians, and even listing some gays throughout history who have contributed immensely to civilization. 
With this split among the circuits, and the challenge of Posner to any legitimate defense of sexual-orientation discrimination, it seems very likely that the Supreme Court will grant review to address the issue.

Gun Rights (possible case)
Does it violate the individual right to bear arms to require a license to carry a concealed weapon, based on some actual need for self-protection? The D.C. Circuit recently held that the D.C. law requiring such a license was invalid. That the law was contrary to the Supreme Court's 2008 decision, in D.C. v Heller, that the 2nd Amendment guarantees an individual right to bear arms.
This D.C. Circuit decision, in Wrenn v. D.C., seems to conflict with the 9th Circuit's 2016 decision in Peruta v. San Diego County, upholding a similar concealed-carry licensing requirement. Adding to the intrigue, the Supreme Court, just this past spring, declined to review that 9th Circuit's decision. Adding to that, Justices Thomas and Gorsuch dissented from the Court's decision not to review that case. Those dissenters argued that the Supreme Court was disparaging gun rights.
So it's pretty clear how Thomas and Gorsuch would vote if the Supreme Court now granted review in Wrenn in order to resolve the conflict among the circuits. But how the others would vote--especially after denying review in Peruta--is another question.

Trump's Travel Ban (moot?)
President Trump's original travel ban was replaced by a second. And last term, by a  6-3 majority in Trump v. Int'l Refugee Asst Project, the Court partially upheld the orders of the courts below that had temporarily barred enforcement of that executive order. The Court did, however, unanimously reverse the lower courts "with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States"--i.e., the Trump ban could be enforced against them. At the same time, the Court agreed to hear the case this term.
However, on the way to the hearing, which had been scheduled for this week, the Trump administration promulgated travel ban 3.0. That certainly seemed to make the case involving travel ban 2.0 moot--i.e., no longer an ongoing case or controversy in need of judicial resolution. So the Court cancelled oral arguments and asked for briefing on the question of mootness.
In short, the original case involving travel ban 2.0, which had been granted review, is no longer on the Court's schedule.

There are surely other significant cases which the Court has already accepted for review, and others which it will accept. But the foregoing six--which have been granted review or are very likely to be granted soon--are certainly among the most hot-button and ideologically-charged among the cases that promise to make this 2017-18 term a blockbuster one.

Justice Scalia's Record (Part 6: Technological Surveillance)

One additional look at Justice Scalia's record. Then we'll move on. Besides the Supreme Court, there's much to discuss about the New York Court of Appeals--now the "DiFiore Court" with a near total change in personnel. But first, let's conclude this series with a look at a particularly salient and--How should I say?--curious aspect of Scalia's jurisprudence.

photo:Sang H. Park/AP 

Any consideration of Justice Antonin Scalia's record must include his views on technology. More specifically, the positions he espoused on the use of technological devices by law enforcement in criminal investigations.

He was the author of the majority opinion in two of the Supreme Court's most important decisions in recent years on technological surveillance. The cases dealt with the validity of such surveillance undertaken without a warrant. If the surveillance in question constituted a "search" within the meaning of the 4th Amendment, then law enforcement was required to first obtain a warrant.

Each of Scalia's opinions was controversial. They raised questions not simply about the ultimate conclusions he reached, but much more so about the constitutional arguments he advanced. Let's take a look.

Surveillance
U.S. v. Jones (2012): the Court unanimously held that the government violated the 4th Amendment when it monitored a person's movements for 4 weeks, without a warrant, by means of a GPS (Global Positioning System) device that it surreptitiously attached to his vehicle.
Justice Scalia wrote the opinion for the Court, which 4 other Justices joined. He took the position that the surveillance in question was a "search"--thereby requiring a warrant--because 1) the government had engaged in a trespass on 2) an item specifically mentioned in the 4th Amendment. According to Scalia, the government trespassed on the defendant's vehicle when it attached the GPS device without his permission. And the item trespassed upon--i.e., a vehicle--is an "effect," which is a term specifically used in the 4th Amendment. [The 4th Amendment specifically mentions "persons, houses, papers, and effects."]
Justice Alito authored a separate concurring opinion which 3 other Justices joined. He harshly criticized Scalia for relying on the "18th century tort law" of trespass to decide a constitutional issue about 21st century technological surveillance. He argued that the case should have been decided on the basis of the Court's actual search and seizure jurisprudence which asks "whether [a person's] reasonable expectations of privacy [are] violated by the long-term monitoring of the vehicle he drove."
Alito emphasized that the Court had long ago rejected a trespass-based view of search and seizure rights, as well as a rigid limitation to the places enumerated in the 4th Amendment--that the landmark 1967 Katz decision (and the Court's case law ever since) repudiated the old doctrines and focused on the "unjustifiable intrusion by the government on the privacy of the individual" [quoting Justice Brandeis's venerated and vindicated dissent in the 1928 Olmstead case].
Most critically, perhaps, Alito highlighted the fact that much, if not most, technological monitoring can be accomplished today without any technical trespass--i.e., by electronic as opposed to any physical contact.
According to Alito and the Justices joining him, the government's warrantless surveillance violated constitutional search and seizure rights, not because there was some minimal "trespass" or "physical intrusion" on a vehicle, but because of the intrusion on legitimate privacy interests.
Responding to Alito's concurring opinion, Scalia repeated his position that the 4th Amendment "embod[ied] a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumerates." Moreover, the Court had "deviated from that exclusively property-based approach [my emphasis]" when it adopted the Katz expectation of privacy test and "said that 'the Fourth Amendment protects people not places.'"
Scalia also took issue with the notion that mere monitoring of a person's movements implicates the 4th Amendment. The Court, he insisted "has to date not deviated from the understanding that mere visual observation does not constitute a search [again, my emphasis]." To prove his point, Scalia referred to previous decisions where the Court had held that surveillance of a driver's movements did not constitute a 4th Amendment "search." The reason, according to Scalia, was that in those cases the technological device was actually attached to property that did not belong to the driver--so there was no trespass.
Finally, as to his insistence on limiting constitutional protection to trespasses upon the items or places explicitly mentioned in the 4th Amendment, Scalia argued that the text of that Amendment itself "reflects its close connection to property, since otherwise it would have referred simply to 'the right of the people to be secure against unreasonable searches and seizures'; the phrase 'in their persons, houses, papers, and effects' would have been superfluous." By way of example, he noted that the Court has repeatedly refused to apply the 4th Amendment to privately owned land away from one's home (i.e., so-called "open fields")--but only to the "houses," which the text does mention.

Florida v. Jardines (2013): in this case, Scalia employed the same analysis to police use of a drug-detection dog. In a 5-4 decision, the Court ruled that the 4th Amendment was violated when the police, without a warrant, brought the dog to a homeowner's porch to investigate the presence of marijuana--which the dog did detect.
Writing for the majority, Scalia relied on his Jones opinion. As with the GPS device attached to someone's vehicle in that case, Scalia explained that the police had "physically intru[ded]" with the canine on a place "enumerated in the [4th] Amendment's text." Although the Court had repeatedly held that canine-sniffs themselves were not "searches" withing the meaning of the 4th Amendment [among other reasons because they only detected contraband, not anything constitutionally protected], in this case the government had "gather[ed] information in an area belonging to [the defendant] and immediately surrounding his house—in the curtilage of the house, which we have held enjoys protection as part of the home itself."
Scalia contrasted the search in this case with others which the Court had deemed outside the 4th Amendment's protections. One was the investigation of private property beyond the immediate area of a home, and another was the visual observation of the home from airspace. The first was not constitutionally restricted because private lands are not "houses;" the second because there was no physical intrusion, i.e., no trespass.
Justice Kagan, writing for herself and two other Justices, concurred in Scalia's opinion. But she explained that the case could--seems like she meant should--have been decided under the Katz rubric of "reasonable expectation of privacy." Aiming "high-powered binoculars" at a home to discover what's inside would be a search because, even without a trespass, it would still be an invasion of protected privacy.
Justice Alito, in a dissenting opinion joined by 3 other Justices, argued that the use of the drug-detection dogs did not violate the 4th Amendment. Indeed, the Court had already decided that a canine-sniff was not a "search" under Katz, because it did not invade a legitimate expectation of privacy.
But beyond that, Alito contended that Scalia's majority opinion "is based on a putative rule of trespass law that is nowhere to be found in the annals of Anglo-American jurisprudence." According to Alito, Scalia was "unable to find a single case—from the United States or any other common-law nation—that supports the rule on which its decision is based. Thus, trespass law provides no support for the Court’s holding today."

Technological Devices
Kyllo v. U.S. (2001): the Court, 5-4, held that the warrantless use of a thermal-imaging device, aimed at the marijuana-growing suspect's house from across the street, in order to detect heat emanating from his the roof, violated the 4th Amendment. [The division among the Justices was actually over the esoteric question of whether the information being obtained by the device was outside the house (the heat coming off the roof) or inside the house (the marijuana-operation that was creating the heat). The latter scored one more vote than the former.]
In his majority opinion, Scalia relied on a few major premises. First, a house is a constitutionally protected area, i.e., specifically enumerated in the 4th Amendment. Quoting from prior Supreme Court case law, he emphasized that "'the very core' of the Fourth Amendment was 'the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.'”
Second, Scalia analogized the use of the thermal imaging device to a trespass into the house. He insisted that the device was being used to obtain "information regarding the interior of the home," information that "could not otherwise be obtained without physical 'intrusion' into" the home [my emphases].
Finally, Scalia expressed concern that the "degree of privacy secured" by the 4th Amendment was being eroded by advancing technology. He nevertheless drew the line of constitutional protection at "technology [that] is not [yet] in general public use." And "on the basis of this criterion," the government's use of a thermal imager was a search.
Putting it all together, Scalia concluded that, "Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant [my emphases]."

[Disclosure: I agree with the result reached by Justice Scalia in each of these cases. But the analysis used by the Justices to support a decision is typically far more important than the particular result reached in a particular case. It is the analysis that will then be applied by lower courts and by the Supreme Court itself in resolving related issues that they confront thereafter. And with regard to Scalia's analysis, I disagree with it in every case.
His trespass analysis dangerously limits the constitutional protection of privacy under the 4th Amendment--the protection that the Supreme Court expressly outlined in its landmark Katz decision a half century ago. [And which Justice Brandeis did 40 years before that.] Indeed, as Justice Alito stressed in his concurring opinion in Jones (the GPS case), most technological surveillance that intrudes on individual privacy does not require any trespass or any other physical intrusion. Just consider: tracking by means of cell phone towers, following by means of drones or helicopters, scrutiny by means of cameras, snooping by means of high-powered binoculars, eavesdropping by means of audio amplifiers, etc., etc., etc. If trespass analysis was ever an adequate basis for constitutional adjudication, it certainly is not in the modern world.
Similarly, Scalia's insistence on the textual limits of the 4th Amendment's enumerated items undermines what has long been recognized as the fundamental principle underlying search and seizure rights--protecting "people not places." That is, securing the personal privacy essential in a free society, not merely protecting the physical interests in the items specifically mentioned. Note well, private property--other than "house"--is not mentioned. Likewise, private conversation is not mentioned. Neither is a person's movements or whereabouts. Indeed most of what people in a free society would consider to be private, whether places or conduct, is not mentioned.
Then there's Scalia's limited protection to technology that is "not in general public use." Of course, the technology that is in common use has been expanding exponentially and will continue to do so. May any of it be used by the government with impunity? Yes, according to Scalia's formula. From binoculars and other visual enhancing devices, to audio amplifying devices (regularly advertised, readily available, and widely used), to drones, etc., etc., etc.--as technologies advance and become more readily available, personal privacy protection under the Constitution diminishes drastically under Scalia's formula. 
Personally, I do not foresee any of these analytical approaches of Scalia enduring.]

So this concludes the series on Justice Scalia's record.
As I said at the outset, I certainly hope he is resting in peace and that he has reached the heavenly afterlife in which he apparently believed.
Beyond that, if there is such an afterlife, I presume that Justices Louis Brandeis (Olmstead dissent) and John Marshall Harlan II (Katz concurring opinion) are explaining to him, much better than I could, the errors of his privacy jurisprudence.