Federal Court: Eight Months Of Utility Pole Camera Surveillance Is A Fourth Amendment Violation

from the warrants-are-the-wave-of-the-future dept

The Supreme Court's Carpenter decision continues to add warrant requirements to surveillance activities law enforcement routinely engages in with almost zero paperwork whatsoever. The Carpenter case dealt with the government's collection of historical cell site location info from third party telcos, but its influence has spread much farther than that.

The decision shook the foundation of the Third Party Doctrine, suggesting a new "reasonable expectation of privacy" standard that threatens warrantless access to a number of third party records. It also suggested long-term surveillance of citizens shouldn't be a warrant-free activity, even if much of what's surveilled occurs out in the open.

To date, courts have applied the Carpenter decision to cover things like car crash data from a vehicle's black box and GPS data pulled from third party services. In this case, via FourthAmendment.com, a Massachusetts federal court says the Carpenter decision covers long-term surveillance of someone's home.

The evidence being challenged in this case is actually unknown. But the defendants raising the challenge assume the government will be introducing evidence derived from video recordings of the front door and driveway of their home, captured by a camera mounted to a nearby utility pole. Law enforcement -- without a warrant or stated probable cause -- surveilled the home for over eight months.

As the court notes in its decision [PDF], surveillance of publicly-viewable areas generally isn't a Fourth Amendment issue.

Casual observations of a person's forays in and out of her home do not usually fall within the Fourth Amendment's protections. Here, the defendants ask the Court to consider whether a precise video log of the whole of their travels in and out of their home over the course of eight months, created by a camera affixed to a utility pole that could also read the license plates of their guests, raises Fourth Amendment concerns.

The court says the test for applying the Fourth Amendment to government surveillance efforts comes down to a "reasonable" expectation of privacy. Here, the court finds the defendants' privacy expectations are both subjectively and objectively reasonable.

The Court ALLOWS Moore-Bush and Moore's motion to suppress because they have exhibited an actual, subjective expectation of privacy that society recognizes as objectively reasonable. See Morel, 922 F.3d at 8. First, the Court infers from their choice of neighborhood that they subjectively expected that their and their houseguests' comings and goings over the course of eight months would not be surreptitiously surveilled. See Moore Mot. 7. Second, the Court rules that the Pole Cameras collected information that permitted the Government to peer into Moore-Bush and Moore's private lives and constitutionally protected associations in an objectively unreasonable manner. See United States v. Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring).

The government, of course, disagreed. It argued the defendants had no privacy interest in the front of their house, considering it was viewable by anyone passing by it. The court says if that were the extent of the privacy interest asserted by the defendants, the government would be correct.

Yet that is not the narrower privacy interest that Moore-Bush and Moore assert here. Instead, Moore-Bush and Moore claim that they expected privacy in the whole of their movements over the course of eight months from continuous video recording with magnification and logging features in the front of their house. The Court infers from Moore-Bush and Moore's choice of neighborhood and home within it that they did not subjectively expect to be surreptitiously surveilled with meticulous precision each and every time they or a visitor came or went from their home.

The government may have prevailed if it weren't for the Carpenter decision, though. The issue isn't a camera pointed at a publicly-viewable area. The problem is what that camera collected over the course of eight months.

In Bucci, the First Circuit reasoned that the "legal principle" that "[a]n individual does not have an expectation of privacy in items or places he exposes to the public" disposed of the matter… If that principle remains an accurate depiction of the law, Moore and Moore-Bush lack an objectively reasonable expectation of privacy in the activities just outside their home, regardless of the camera's unique capabilities.

The Court reads Carpenter, however, to cabin -- if not repudiate -- that principle. There, the Supreme Court stated that: "A person does not surrender all Fourth Amendment protection by venturing into the public sphere. To the contrary, 'what [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.'" [...] What's more, the Supreme Court recognized that long-term tracking of a person's movements "provides an intimate window into a person's life, revealing not only his particular movements, but through them his 'familial, political, professional, religious, and sexual associations.'"

The government argued the Carpenter decision was "narrow," applying only to cell-site location info. The court disagrees, saying the reasoning behind the Supreme Court's decision -- that people do have some reasonable expectations of privacy in public areas -- is the driving force here, not the method of surveillance.

Additionally, long-term surveillance tends to do damage to other rights as well. Tracking a person's movements over weeks and months allows the government to surveil a wealth of activities protected by the First Amendment. In addition, it allows the government to observe dozens of activities it has no business observing.

What's more, people use their homes for all sorts of liaisons. For example, the Government has no business knowing that someone other than the occupant's spouse visited the home late at night when the spouse was away and left early in the morning… Nor does the Government have any business tracking a homeowners' hobbies or regular trips for appointments. Perhaps people would hesitate to have supporters of opposition political parties visit if they knew that the Government might be monitoring their driveway. The continuous video taken by the Pole Camera thus threatens to chill these religious, political, and associational activities.

The court wraps up its decision by pointing out it is not declaring all surveillance camera use a search under the Fourth Amendment. Instead, it's saying that this set of circumstances makes it a search that interferes with the defendants' reasonable expectation of privacy. The camera setup used here could focus on multiple areas, zoom in close enough to read license plate numbers, and -- perhaps most importantly -- create a searchable set of recordings the government could browse at its leisure and use to reconstruct the lives of the home's occupants over the court of several months. That exceeds what the court -- and the defendants -- find reasonable. Under Carpenter's standard, this type of surveillance can no longer be executed without a warrant.

Filed Under: 3rd party doctrine, 4th amendment, carpenter, daphne moore, nia moore-bush, reasonable expectation of privacy, surveillance, utility pole


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  1. icon
    That One Guy (profile), 10 Jun 2019 @ 5:51pm

    'Turnabout is fair play' test

    If the government wants to argue that month long video surveillance of someone's house isn't invasive enough to require a warrant, I do have to wonder how many of them would be fine with someone setting up cameras pointing at their houses for months at a time, tracking who leaves and enters and when?

    Somehow I suspect that all of a sudden pointing a camera at someone's house and tracking everyone that enters and exits would be argued to be a serious violation of their privacy, and not an act that should be allowed.

    reply to this | link to this | view in thread ]

  2. icon
    Madd the Sane (profile), 10 Jun 2019 @ 7:48pm

    Re: 'Turnabout is fair play' test

    If the government wants to argue that month long video surveillance of someone's house isn't invasive enough to require a warrant, I do have to wonder how many of them would be fine with someone setting up cameras pointing at their houses for months at a time[…]

    I believe those are called paparazzi.

    reply to this | link to this | view in thread ]

  3. icon
    Richard M (profile), 10 Jun 2019 @ 8:28pm

    One step forward two steps back

    A good decision...

    I wish I could get more excited about the good ones but it seems for every good court decision I read about there are multiple bad ones.

    It is like a good percentage of the judges and the population for that matter have lost their minds and are doing all they can to destroy the Constitution.

    Between the growing anti-democracy and anti-science crowds we are swirling down the drain to someplace bad.

    reply to this | link to this | view in thread ]

  4. identicon
    Oliver, 11 Jun 2019 @ 12:56am

    all good, but...

    what about the recordings that were obtained illegally?
    When do they get destroyed?
    That is the meat of the whole argument. That this supposed "evidence" must be destroyed! Not just deleted, but irreversably destroyed.

    Cheers, oliver

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, 11 Jun 2019 @ 1:33am

    'Turnabout is fair play' test

    That is not what paparazzi do.

    They do not create 24/7 8 month long searchable video databases.

    And, they are not the government.

    Analogy fail.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, 11 Jun 2019 @ 6:38am

    Re: 'Turnabout is fair play' test

    The Not In My Backyard syndrome.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, 11 Jun 2019 @ 8:08am

    Re: 'Turnabout is fair play' test

    One also has to wonder what would happen if one climbed a pole or tree and sat there watching a private citizen, every day for 8 months. Likely they'd complain and the cops would find a law against it.

    reply to this | link to this | view in thread ]

  8. icon
    Coogan (profile), 11 Jun 2019 @ 8:22am

    Judge: "Sorry guys, you'll actually have to do some work to get your evidence."
    Govt: "damnit"

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 11 Jun 2019 @ 8:55am

    I know where I live there are Mics up on the poles to hear and figure out where a Gun Shot came from. They're always there.

    I have security cameras around my house and can see the front of a number of houses around me. Even more so as I'm on a corner of a bend in the road. So I have the front of my house and the side of my house. I can see people coming and going. Right now I have enough HDD space for about 2 weeks of recording 24/7.

    You have no expectation of privacy in public. I can be standing on the sidewalk and point my camera at your house and record away and there's nothing you can do about it. Close your curtains. So long as I'm on public property. Now if I step onto your property, that's a different matter.

    Your kids playing in the park, I can be right there recording away at them. it's creepy, but 100% LEGAL!!! Some people really go off when they are being recorded by someone, and yet everywhere you go you are being recorded. because once again, no expectation of privacy in public. Yes, you can be recorded without your permission.

    My Neighbors know I have cameras. Hell, my neighbor across the street told the police after their new Truck got hit on the side. Well, their Mirror broken off as it was sideswiped. The police officer told me what Truck of theirs and a time period, and I found when it happened. My cameras also record Audio so you could hear it as it was hit also. It made a lot of noise. Got that clip and emailed it off to the officer. So while my cameras can see them coming and going 24/7, ended up helping them to find out what happened on this hit and run. They hit and damaged the truck clearly and kept right on going, barely slowing down around the corner.

    The police spying on a house? I think they should have a court order because this is about some type of crime. They should have a higher standard.

    reply to this | link to this | view in thread ]

  10. identicon
    Anon, 11 Jun 2019 @ 9:12am

    Even Back in the 80's

    IIRC back in the 80's the Reagan government proposed a category of classified information that was basically - "yes, individual pieces of data might be publicly obtainable, but collecting an entire database of data through computer means makes the data classifiable as SECRET". This was for national security reasons, but the logic applies; if you can collect a snippet of data, that's reasonable. The ability to collect a nearly complete database, not good. I.e. I know X woks for the CIA, about how much he makes - ok, it happens. I get a list from every embassy or the government payroll system, and know almost every payroll data point - that's classified.

    Not sure the concept was ever implemented, but the idea is the same. the police can sit outside your house and watch - OK. For little to no expense, they mount motion-triggered video surveillance and build a comprehensive list - that's an invasion of privacy. Just as - the cops know they saw you at X in public - O. The cops download a comprehensive list of your position for the past 6 months - invasion of privacy, even if it was mostly out in public.

    The trouble is, as Orwell presciently pointed out, technology can raise surveillance capability to a much higher level with less effort. This requires privacy protection to be raised to a higher level.

    reply to this | link to this | view in thread ]

  11. icon
    Uriel-238 (profile), 11 Jun 2019 @ 1:22pm

    One small step... to regulating ALPRs

    Court rules that the Pole Cameras collected information that permitted the Government to peer into Moore-Bush and Moore's private lives and constitutionally protected associations in an objectively unreasonable manner

    It takes very little effort to infer from this that an array of ALPRs used to collect the movements of automobiles and create from that a pattern of life and activities would also be a violation of expectation of privacy, involving data collected in an objectively unreasonable manner.

    reply to this | link to this | view in thread ]


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