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Case gives justices chance to rule on pole cams

By Pat Murphy, BridgeTower Media Newswires 

BOSTON — A Massachusetts contingent of lawyers is hoping the U.S. Supreme Court grants them their request to rule on the constitutionality of federal agents using a pole camera to conduct a warrantless, eight-month surveillance of a drug suspect’s home in Springfield during 2017 and 2018.

Joined by Springfield criminal defense attorney Linda J. Thompson, the Massachusetts ACLU on Nov. 18 filed a petition for certiorari in Moore v. U.S.

According to the petition for cert, the case presents the question of “[w]hether long-term police use of a surveillance camera targeted at a person’s home and curtilage is a Fourth Amendment search.”

In addition to Thompson, the petitioner’s legal team includes Massachusetts ACLU legal director Matthew Segal and managing attorney Jessie J. Rossman. Also joining the fray is New York attorney Nathan Freed Wessler, the deputy director of the ACLU’s Speech, Privacy & Technology Project.

“This case is really the important ‘next step’ of the Supreme Court’s efforts to reconcile Fourth Amendment protections with police use of technology to monitor activities that we have long considered to be private in our day-to-day lives,” Rossman says in explaining the ACLU’s interest in the case.

Rossman says she sees Moore as potentially providing an important constitutional bookend to the Supreme Court’s 2018 decision in Carpenter v. U.S.

“In Carpenter, the court held that the government needs to get a warrant before accessing days or weeks of our cell site location information,” Rossman says. “It did so based on the reasoning that, even though we may be in public when we are carrying around our cellphones, the entirety of our movements collectively reveal much more than any one of those individual moments on their own. That kind of consistent surveillance triggers a reasonable expectation of privacy.”

According to court records in Moore, a federal grand jury in 2018 indicted petitioner Daphne Moore and eight other defendants, including Moore’s adult daughter, on various drug and money-laundering charges.

The charges were based in part on evidence obtained through the continuous recording of her Hadley Street home by a camera installed on a utility pole by federal agents investigating a heroin trafficking ring. The warrantless electronic surveillance captured the activities of Moore, her family and guests from May 17, 2017, through approximately mid-January 2018.

The camera could be controlled remotely to zoom in on license plates of guests and to pan and tilt. Government agents used the camera to monitor the driveway and front of the home to create a video log of the surveillance over the entire eight months.

“There have been surveillances in other jurisdictions that were both longer and briefer than this one,” Thompson says.

In June 2019, U.S. District Court Judge William G. Young granted Moore’s motion to suppress, concluding the government’s use of a remote-controlled pole camera to conduct constant surveillance of suspects in and out of their home constituted an unreasonable search under the Fourth Amendment.

“While the law does not ‘require law enforcement officers to shield their eyes when passing by a home on public thoroughfares,’ it does forbid the intrusive, constant surveillance here,” Young wrote.

“Almost every other case in the country has been against requiring a warrant for a pole camera, especially federal cases,” Thompson says of Young’s ruling. “But ours was a successful motion to suppress. That may be one of the reasons that it may get the attention of the [U.S. Supreme] Court.”

Applying circuit precedent, a 1st Circuit panel reversed Young’s suppression order in June 2020. After a rehearing, the en banc court in a June 2022 decision likewise reversed the lower court. While agreeing in the result given existing 1st Circuit precedent, three judges in a concurring opinion expressed the view that the long-term pole camera surveillance of a home and curtilage does constitute a “search” within the meaning of the Fourth Amendment.

Three judges disagreed in a separate concurring opinion, concluding that Moore had no reasonable expectation of privacy against eight months of continuous, surreptitious video surveillance by the police given that the recording captured only what passersby could see.

“Chief Judge [David J.] Barron wrote a 99-page concurrence explaining why this was a search,” Thompson says. “And Judge [Sandra L.] Lynch wrote a 35-page concurrence explaining why it wasn’t a search. So this [issue] is laid out about as thoroughly as you could ever hope to get it laid out.”

In their petition for cert, Moore’s attorneys argue that the “deep divide” reflected in the 1st Circuit reflects a split among both the other circuit courts as well as state supreme courts.

“Three circuits have held that long-term pole-camera surveillance of a home is not a Fourth Amendment search,” the petitioner’s attorneys write. “Meanwhile, the Fifth Circuit and the supreme courts of Colorado and South Dakota have held that such surveillance violates reasonable expectations of privacy and is a search under the Fourth Amendment.”

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