Analysis of Justice Thomas’ dissenting opinion

The opinion can be summed up in 6 words.

“I hate Katz versus United States.”

Justice Thomas goes on for 21 pages on this theme. He would like to see the decision overruled. In this dissent, no other Justice will join him.

Among other things buried in the 21 pages, Justice Thomas belittled the Katz decision by bringing up the fact that Harlan’s “reasonable expectation of privacy” test was not ever brought up in the parties’ briefs. According to Justice Thomas, the first mention of this test appeared when Katz’s lawyer raised it in oral argument.

The irony of Justice Thomas complaining about something happening at oral argument is probably lost on Justice Thomas.

The only thing thing I see worthy of discussion is the fact that he observes that in several recent decisions, the Court declined to use the Katz test, naming Grady v. North Carolina, 575 U. S. ___, ___ (2015) (per curiam), Florida v. Jardines, 569 U. S. 1, 5 (2013), and United States v. Jones. He seems to argue that this is a silent admission by the Court as a whole that Katz ahould be overruled.

I thought it would be useful therefore to look at those three recent cases to see what he’s talking about. Frankly, I don’t see it.

Grady was a unanimous decision that ruled that putting a GPS device on a sex offender as a civil sanction was a search within the meaning of the Fourth Amendment. The Court in Grady specifically stated that there was no need to analyze the issue of expectation of privacy because the Government engaged in a physical intrusion, quoting Jones. (Jones is the case where the Government attached a GPS device to a vehicle).

Jardines was a case where officers brought a drug sniffing dog to the porch of a house, and once the dog alerted, used that information in order to get a warrant. The Court found that the nature of this property violation by Florida law enforcement dictated an easy result.

Jardines, on the other hand, has language similar if not identical to the Carpenter majority opinion stating that property rights are not the sole measure of determining Fourth Amendment violations. It is curious that Justice Thomas would use this precedent to state that the Katz test is not regularly applied in the Court’s precedents.

Just my opinion, but Justice Thomas should participate in oral arguments. At least a little.

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