[co-author: Durva Trivedi]*
Last week, the First Circuit issued a decision that could be destined for Supreme Court review, but that nonetheless will immediately impact the course of criminal defendants' Fourth Amendment rights, particularly concerning government video camera surveillance. The split en banc decision centers on whether recordings obtained from a remotely controlled digital video camera mounted on a utility pole across from a private residence that was continuously recording the area immediately in front of that home should be suppressed, and whether the camera's installation was a "search" requiring a warrant. The panel of six judges unanimously agreed that evidence obtained from the camera should not be suppressed and was therefore admissible even though the camera was installed without a warrant. But they were divided three to three in two concurring opinions on whether a warrant should have been obtained to install the surveillance camera in the first instance, and whether prior First Circuit jurisprudence permitting warrantless video camera surveillance should be overruled.
Both opinions relied on the Supreme Court's 2018 Carpenter decision, but the first, 100-page opinion found the eight-month "intensive, long-term surveillance that could expose to a member of the observing public the whole of what visibly transpires in the front of one's home over many months in any practically likely scenario" constituted a search requiring a warrant under the Fourth Amendment. However, the concurrence also concluded that the government was entitled to rely on the "good faith" exception allowing evidence obtained in a warrantless search to be admissible because the existing precedent at the time of the camera's installation disclaimed the need for a warrant.
The second, 30-page opinion found that the surveillance did not constitute a search, and therefore concluded that the government was not required to seek a warrant prior to installing the camera such that the video evidence was admissible as to the defendants surveilled. The second opinion also relied on Carpenter, but cited Carpenter's endorsement of the warrantless use of "conventional surveillance techniques and tools, such as security cameras," and that "any purported expectation of privacy in observations of a house unshielded from view on a public street is not in the least like the expectation of privacy" that justified the warrant required by Carpenter for historic cell site location information.
The case centers on a criminal investigation into narcotics trafficking and the unlicensed sale of firearms. In January 2017, the ATF began investigating defendant Moore-Bush and "surreptitiously" installed a digital video camera atop a utility pole near where defendant was living at the time, which recorded the exterior of the home. "ATF agents were able to view a live-stream of what the camera recorded through a password-protected website. The agents also could, remotely, pan, tilt, and zoom the camera to better focus on individuals or objects of interest." The camera had within its view "roughly half of the front structure of the … residence, including its side entrance and a gardening plot near that entrance, the whole of the home's private driveway, the front of the home's garage, much of the home's front lawn, and the vast majority of the walkway leading from the home's private driveway up to the home's front door (although not the front door itself)." (references to this area are noted in the opinions as the home's "curtilage").
ATF did not seek a warrant prior to installing the camera, and the camera was ultimately in place and continuously recording for eight months. In January 2018, based in part on evidence from the pole camera, Moore-Bush was indicted and arrested for conspiracy to distribute and possess with intent to distribute heroin and cocaine.
In April 2019, Moore-Bush moved to suppress evidence collected by the pole camera, arguing that the continued surveillance of the house constituted an unreasonable search in violation of the Fourth Amendment. A Massachusetts federal district court granted that motion, finding that a warrantless search occurred, relying on the Supreme Court's Carpenter decision, which held that the government's acquisition of historic cell site location information providing a detailed record of a defendant's physical movements constituted a search under the Fourth Amendment (for further discussion of the Carpenter decision, see here).
The district court's suppression order was appealed and, in 2020, a three-judge panel of the First Circuit reversed, holding that surveillance of the exterior of a house did not constitute a search and consequently that the suppression motion should be denied. Then Circuit Judge Barron concurred, although finding that the installation of the pole camera did require a warrant. The appeal was then reheard en banc on the defendant's motion and while the en banc panel of six judges agreed that the suppression order should be reversed, the Judges disagreed significantly on whether a warrant was required to install the pole-mounted video camera in the first instance.
Analysis of the En Banc Concurring Opinions
The first concurring opinion, authored by now Chief Judge Barron and joined by two other judges on the en banc court, concluded that a warrantless search did occur, in violation of the Fourth Amendment. They found that Moore-Bush's legitimate expectation of privacy was violated when ATF agents collected eight months of aggregated information that no casual observer would see collectively. This concurring opinion relied on Carpenter and other recent Supreme Court cases concerning the application of various technologies to Fourth Amendment doctrine.
These decisions, according to the concurrence, support the conclusion that prolonged surveillance by the government that is streamlined and made possible by modern technology ("scooping up visual information about all that occurs in front of a residence over a long period of time") can constitute a search under the Fourth Amendment, even "when each discrete activity in that totality is itself exposed to public view." The Carpenter case, in particular, was relied on by the concurrence to suggest a need to overturn a prior First Circuit decision that held that eight months of video surveillance from a pole-mounted camera did not constitute a search under the Fourth Amendment.
Beyond concluding that eight months of video surveillance constituted a search, the concurrence did not provide guidance on a specific threshold or timeframe for determining when continuing video surveillance of curtilage amounts to a search, but quoting Carpenter noted that the Supreme Court's warning that "as '[s]ubtler and more far-reaching means of invading privacy have become available to the [g]overnment,' courts are ' obligated' . . . 'to ensure that the progress of science' does not erode Fourth Amendment protections." Nonetheless, the concurrence agreed that the original suppression order should be reversed because of the "good faith" exception, allowing evidence obtained by warrantless surveillance is admissible if conducted in accordance with the law in effect at the time.
In the separate concurrence, three circuit judges† concluded that the surveillance, regardless of whether it was "surreptitious," did not constitute a search, that "the Fourth Amendment does not guarantee that suspects have fair notice that an investigation is ongoing," and that Carpenter endorsed warrantless use of security cameras. Additionally, the separate concurrence argued that it should be left to the Supreme Court to decide whether and to what extent legitimate expectations of privacy are violated by government surveillance that uses modern technology to aggregate and capture what is plainly in the public view but only observable over a length of time with technology like remotely accessed and controlled digital video pole cameras.
The Road Ahead
Looking forward, it has been reported that the defendant in the case has again sought rehearing, based on her argument that the video evidence should nonetheless be suppressed because the government waived the "good faith" exception. However, this point had been argued in the prior briefing and the three judges who thought there should have been a warrant did not "consider the 'good faith' issue to have been waived," so that rehearing would appear unlikely on that point.
The en banc opinions demonstrate significant discord among federal judges on the application of the Fourth Amendment to lengthy remote surveillance enabled by modern technology. It is likely that the defendants will seek certiorari, as the second concurrence concludes that, "if new constitutional durational limits are to be set on the use of long-used, widely-available technology that detects only what is plainly in the public view, it is for the Supreme Court to set those limits."
† Judges Lynch, Howard, and Gelpí. Former Chief Judge Howard authored the original panel opinion that reversed the suppression order, and here was joined by Judge Lynch from that panel.
* Durva Trivedi, a rising 2nd-year law student at Georgetown University Law Center, is a 2022 Summer Associate at DWT.