I don't believe they are saying a EULA or ToS is "above the law" they're saying that there is a reasonable argument to say that the expectation of privacy was waived by the guilty party owning an Amazon Echo. If the ToS states these facts more clearly, then that argument would either have more or less weight. Without anything being said in the ToS or EULA, the argument could really go either way, depending on many things, like the judge's mood or interpretation.