Legal Brief: Surveillance and the Fourth Amendment

This article originally appeared in the August 2020 issue of Security Business magazine. When sharing, don’t forget to mention @SecBusinessMag on Twitter and Security Business magazine on LinkedIn.Are you a homeowner? Do you value your privacy?

Do me a favor – stand inside your front door. Do you expect that your conduct is private in your home? Now, step immediately outside your front door, just a few feet from where you stood inside. How about now?

You may be surprised to learn that the law may treat these two spots very differently.

It could be that you have a reasonable expectation of privacy inside your home, but no such reasonable expectation immediately outside your home. This appears to be the ruling of the United States Court of Appeals for the First Circuit (an intermediate federal appeals court) in a case known as United States v. Moore-Bush, 2020 WL 3249060 (1st Cir. 2020).

In this recently decided case, the court considered whether the government’s warrantless use of a pole camera to continuously record the front of the defendants’ home infringed on the defendants’ reasonable expectation of privacy in and around their home and, thereby, violated the Fourth Amendment of the U.S. Constitution. The appellate court reversed the trial court and determined that the warrantless use of the camera was permissible and not a violation of the defendants’ fourth amendment rights.

As a former prosecutor, I agree with the decision, and I am glad that the drug and gun dealing defendants were caught and are subject to punishment; however, the decision is nevertheless thought-provoking and controversial.

Inside the Case

The principal defendant – an attorney and magistrate – operated a side business dealing in illegal drugs and guns. Not a good idea.

She and her boyfriend lived with her mother in a quiet residential neighborhood. After a confidential informant bought four guns illegally at the residence, officers installed a pole camera across the street that viewed one side of the house.

The pole camera took continuous video recording for approximately eight months; focused on the driveway and the front of the house; had the ability to zoom in so close that it can read license plate numbers; and created a digitally searchable log.

The police also conducted physical surveillance of the residence – seeing what anyone on the street could see.

Based, in part, on evidence gathered by the pole camera, the police obtained a series of other search warrants related to the investigation. Eventually, the principal defendant, her boyfriend and the principal defendant’s mother were charged with drug trafficking.

In advance of the presentation of evidence, the trial court ruled that the use of the pole camera for an extended period, coupled with the ability to zoom and to search the recordings, constituted an illegal search under the Fourth Amendment, leading to suppression of critical evidence in the case.

The government appealed the ruling of the trial court that the use of the pole camera violated the defendants’ rights. The appellate court reversed – holding that the pole camera revealed nothing more than could be lawfully viewed by officers on the street; and therefore, no warrant was required, and the evidence gathered by the camera and other warrant-based evidence gathered subsequently was admissible and could be used against the defendants in their criminal trial.

Among other things, the appellate court held that “what one knowingly exposes to public view does not invoke reasonable expectations of privacy protected by the Fourth Amendment.”

The majority opinion in the Moore-Bush case was accompanied by what is known as a concurring opinion – where one or more appellate judges agree with the conclusions of the majority of the court, but for different reasons. In this case, one of the appellate judges separately wrote a concurring opinion that began by acknowledging the logic of defendants’ arguments. In particular, the judge analogized the case to sign stealing in baseball, where it is acceptable that a base runner might steal a sign from the other team, but using a hidden camera to continuously record all signs throughout a game is not.

The concurring opinion also raised a concern “that, given the pace of innovation, law enforcement will have license to conduct a degree of unchecked criminal investigatory surveillance that the Fourth Amendment could not possibly have been intended to allow.” Nevertheless, the concurrence did not disagree with the result.

What is interesting is that the police officers investigating the defendants could have sought a warrant from a court at any time for the use of the camera – essentially mooting the issues ultimately raised in the appeal. For whatever reason, they did not. Maybe they did not want to risk being denied a warrant, maybe they were worried about bias because one of the defendants was a magistrate judge, maybe they deemed it totally unnecessary because, in their view, it did not rise to the level of an “unreasonable search and seizure” – otherwise prohibited by the Fourth Amendment.

We may never learn the motivation of these investigating officers, but, at a minimum, we can thank them for getting guns and drugs off the street. The issue, of course, is whether they violated the Constitution in the process. I believe not – and the United States Court of Appeals for the First Circuit agrees.

How about you? Do you agree? I suggest you think about it – maybe out on your front porch – and be sure to smile for the camera.

Timothy J. Pastore, Esq., is a Partner in the New York office of Montgomery McCracken Walker & Rhoads LLP (www.mmwr.com), where he is Vice-Chair of the Litigation Department. Before entering private practice, Mr. Pastore was an officer and Judge Advocate General (JAG) in the U.S. Air Force and a Special Assistant U.S. Attorney with the U.S. Department of Justice. Reach him at (212) 551-7707 or by e-mail at [email protected].