During the oral arguments, Justice Neil Gorsuch observed that Byrd's lawyer, Robert Loeb, had offered a property rights theory "on which you might prevail." That theory, "essentially as I understand it," Gorsuch said, is "that possession is good title against everybody except for people with superior title."
Justice Samuel Alito apparently did not like the sound of that. "The problem with going down this property route is that we go off in search of a type of case that almost never arose…at common law, where an unauthorized sub-bailee brings an action for trespass to chattel against a law enforcement officer. When would that ever have happened in 18th-century America? Never."
…
A few minutes later, Alito tried to poke another hole in the property rights theory that Gorsuch had seemingly endorsed.
"The Constitution uses the word 'property' numerous times," Alito told Loeb, "but the word 'property' doesn't appear in the Fourth Amendment. It talks about effects, which is defined by Samuel Johnson's dictionary as 'goods or movables.'… Is it your argument that any property interest whatsoever falls within the definition of effects if we are going to go back to an originalist interpretation of the Fourth Amendment?"
In conclusion:
To summarize: Gorsuch pushed a property rights theory of the Fourth Amendment that, if adopted by the Supreme Court, would cause the government to lose this case and plenty of others. Alito promptly spoke up in opposition to that theory. A little bit later, Gorsuch advanced the theory again in greater detail.
If that dynamic sounds familiar, it's because we've already seen it once before. In the November 2017 oral arguments in the warrantless cell phone records search case Carpenter v. United Staes, as I noted at the time, "Gorsuch proffered a property rights argument that might allow Carpenter to win the case, and Alito came out swinging hard against it."
I suspect that Gorsuch and Alito's battles over this issue are just getting started.
Related, at Cato at Liberty, Roger Pilon: A Justice with Philosophical Training. The post summarizes the above discussion and concludes:
By contrast [to Alito]—and here’s the point I want to add—Gorsuch appears to be going back to First Principles. By implication, he’s doing the kind of state-of-nature analysis, reflected largely in the common law, that underpins the Constitution’s theory of legitimacy. From the Preamble to the document’s first sentence to the Ninth, Tenth, and Fourteenth Amendments, the idea is that legitimate governments have only those powers that the people have given them—but only those that they first have to give them. In the state of nature, there’s no right to trespass on another’s person or property—real or chattel—without probable cause. So once we leave the state of nature, where would a law enforcement officer get such a right. We have here, in short, a justice who studied these issues at Oxford, and we are the better for it.
Reminder: originalism does not always mean conservative outcomes.
(Via Edith Roberts at SCOTUSblog).