Mass. police surveillance case could go to Supreme Court

THE ACLU is asking the US Supreme Court to consider a Massachusetts case that could set limits on the police’s ability to conduct long-term camera surveillance without obtaining a search warrant. 

The case, Moore v. United States, stems from an investigation into a Springfield woman for drug and firearm crimes. According to facts laid out in court filings, the federal Bureau of Alcohol, Firearms, Tobacco, and Explosives in 2017 began investigating Nia Moore-Bush and her husband for illegal sales of firearms and drugs. A month later, Moore-Bush moved in with her mother, Daphne Moore, in a single-family home on a quiet, residential street in Springfield.  

In May 2017, ATF agents surreptitiously installed a camera atop a utility pole across the street from the house. They did not seek a warrant.  

The ATF could monitor and operate the camera remotely, including zooming in on features, such as license plates of cars parked in the driveway. They kept the camera in place for eight months, capturing a log of all activities going on in front of the house, including every time someone came or left. 

The mother and daughter filed a motion to suppress the evidence obtained from the pole cameras, arguing that they constituted an unconstitutional search. The government responded that using pole cameras mounted in a public place does not constitute a search under the Constitution. 

A US District Court judge found in favor of Moore-Bush and her mother, writing that by living in a quiet neighborhood, the two had no expectation that their comings and goings would be surreptitiously surveilled for eight months, and the government had peered into their lives in an unreasonable manner. 

A panel of judges on the 1st Circuit Court of Appeals reversed that decision, finding that an individual does not have an expectation of privacy in items or places she exposes to the public.  

The full Appeals Court then considered the case, in a process reserved for complex cases referred to as an “en banc” review, and affirmed the Appeals Court’s ruling with a terse two-sentence statement. But in a 129-page series of dueling concurrences, the justices deadlocked, three to three, on the question of whether long-term pole camera surveillance of a home constitutes a Fourth Amendment search.  

One group of three justices concluded that the type of surveillance available in the digital age, where the police can obtain a continuous livestream of the front of someone’s house, can provide information about someone’s familial, professional, religious, political, and sexual associations, and that violates someone’s expectation of privacy. 

The other three justices agreed with the government that because the front of someone’s home is exposed to public view, a person has no expectation of privacy there. 

The issue has divided the lower courts in other cases as well, with competing interpretations about whether long-term surveillance via pole camera constitutes a constitutional search.  

The national American Civil Liberties Union and the ACLU of Massachusetts are asking the US Supreme Court to take the case. They would like the court to decide that under the US Constitution, long-term pole camera surveillance constitutes a search and should require a warrant.  

Jessie Rossman, an attorney with the ACLU of Massachusetts who filed the case, said the US Supreme Court has held that government needs a warrant to access days or weeks of people’s location via cell phone data. The ACLU believes the kind of information exposed through continuous surveillance of someone’s home “is at least as invasive of our privacy as cell phone location information is.”