Justice Scalia Fights for Fourth Amendment Privacy Rights

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Thursday, 08 May 2014 12:10 PM

By Melanie Batley

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Conservative Justice Antonin Scalia has emerged as one of the Supreme Court's most outspoken champions of Fourth Amendment rights, making him a strange bedfellow with liberal justices in closely divided cases.

The 78-year-old justice, appointed by then-President Ronald Reagan in 1986, has made influential decisions surrounding privacy issues related to both the home and technology. Scalia's opinion may be the decisive factor in the outcome of a case currently before the court about whether police can search a suspect's cellphone without a warrant upon arrest, Talking Points Memo reported.

"Justice Scalia has been on the pro-privacy side of a lot of divided Fourth Amendment cases, especially recently… [and] often very strongly," Orin Kerr, a law professor at George Washington University, told Talking Points Memo.

According to Talking Points Memo, in 2012, Scalia wrote the majority opinion reversing a defendant's conviction because the state gained key evidence by attaching a GPS device to his car. In 2013, he wrote a 5-4 opinion that police may not send a dog to sniff at a front door based on suspicion that drugs were being grown inside.

Also in 2013, Scalia wrote the dissenting opinion, joined by three liberal justices, against the court's 5-4 ruling upholding warrantless collection of DNA from people who are arrested, and two weeks ago he lead another dissent against a 5-4 ruling allowing a police officer to stop a truck driver based on an anonymous tip that he was intoxicated, Talking Points Memo reported.

"Relying on the history of the Fourth Amendment, Justice Scalia has become a frequent champion of broad Fourth Amendment protections – not only joining opinions by his more liberal colleagues, but also often writing powerful opinions in which they join," Brianne Gorod, counsel for the liberal Constitutional Accountability Center, told Talking Points Memo.

"Notably, in every non-unanimous Fourth Amendment case last term, Justice Scalia sided with the defense."

In the current case before the court, Scalia pondered during oral arguments last week about allowing police to have some latitude to search a phone if they have reason to believe a bomb will detonate, but insisted the power should be limited. If someone is arrested for not wearing a seat belt, Scalia said, "it seems absurd that you should be able to search that person's iPhone," Talking Points Memo reported.

Last week, liberal Justice Ruth Bader Ginsburg, who often votes with Scalia on Fourth Amendment cases, told The Wall Street Journal, "Scalia is often criticized by people who would not be labeled conservative. Liberals don't count his Fourth Amendment cases or the confrontation clause cases. He is one of the most pro-Fourth Amendment judges on the court."

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