Note – Alito’s Way: Application of Justice Alito’s Concurring Opinion in United States v. Jones to Cell Phone Location Data

Ryan Birss

Volume 65, Issue 3, 899-928

On January 23, 2012, the Supreme Court issued a landmark decision in United States v.
Jones, ruling unanimously that the government’s installation of a GPS device on Antoine
Jones’s vehicle and the use of that device to monitor the vehicle’s movements constituted a
“search” and violated the Fourth Amendment. However, the majority opinion focused
solely on the physical trespass of placing a device on a suspect’s car.

Due to advancements in technology such as cell phone location data, physical intrusion is
unnecessary for government officials to track an individual. The limitations of the
opinion were immediately apparent in cases like United States v. Skinner, as government
agents circumvented the holding in Jones by merely avoiding physical trespass.

This Note argues that by focusing on Justice Alito’s concurrence in Jones and his three
prongs of analysis (Fourth Amendment jurisprudence, the length of tracking, and the
type of offense) and analyzing cell phone location data as something a person has a
reasonable expectation of privacy in, courts can protect individuals from unchecked
government intrusion.

This Note recaps the three opinions in Jones, summarizes the current technology and the
procedures used by government agencies to access cell phone location data, and uses the
facts of Skinner to illustrate how the surveillance process works. This Note then discusses
Justice Alito’s concurrence in detail and proposes several modifications to his analysis in
order to clarify when the warrantless collection of cell phone data should be deemed
constitutional.

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