In my prior column, I discussed the limits of the Katz test created in Katz v. United States, 389 U.S. 347. Much of the debate between the justices focuses on this test and its progeny.
The Court divided between a majority opinion penned by Associate Justice Antonin Scalia, concurrences by Associate Justice Sotomayor and Associate Justice Alito.
Scalia emphasizes that privacy protections are broader than the “reasonable expectation of privacy” test:
The Government contends that several of our post-Katz cases foreclose the conclusion that what occurred here constituted a search. . . . But as we have discussed, the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test. The holding in Knotts addressed only the former, since the latter was not at issue. .