Update: The First Circuit has granted en banc review of Moore-Bush. In doing so, the court has withdrawn the opinion detailed below. The full court will now consider whether the Fourth Amendment requires a warrant for placing a pole camera outside someone’s home. The court set the en banc hearing for March 23, 2021, which means we may not know its decision for quite some time.
In United States v. Moore-Bush,1 the First Circuit recently held that the government does not need a warrant to place a pole camera outside of a defendant’s home. The court considered whether the placement of that camera violated the defendant’s Fourth Amendment rights in light of the Supreme Court’s landmark decision in Carpenter v. United States.2
The breadth of the Fourth Amendment has been hotly debated in the justice system, especially with regard to the impact of advances in technology. The Supreme Court took up this question in 2018 in Carpenter, when it determined that the use of cell-site records maintained by third-party cell phone companies to trace individuals’ whereabouts constituted a search under the Fourth Amendment. The Court reached this decision because the records provided the Government with “near perfect surveillance and allow[ed] it to travel back in time to retrace a person’s whereabouts,” implicating serious privacy concerns.
The facts in Carpenter presented a tension in Fourth Amendment caselaw between an individual’s expectation of privacy in his or her physical location or movements on the one hand, which have generally been recognized as protected, and an individual’s expectation of privacy regarding information it has turned over to a third party on the other, which historically has not been protected. Since Carpenter, Courts have had to interpret the case’s holding while also considering the earlier Fourth Amendment caselaw that limit privacy protections for actions taken in public view.
In Moore-Bush, the First Circuit overturned the district court’s decision to suppress evidence obtained from a pole camera. The First Circuit stated in Moore-Bush that the Supreme Court in Carpenter “was concerned with the extent of the third-party exception to the Fourth Amendment law of reasonable expectation of privacy and not with the in-public-view doctrine spelled out in Katz v. United States3 and involved in this case.”
In Moore-Bush, the government put a pole camera in front of the home of co-defendants Daphne Moore and Nia Moore-Bush. The camera showed a front view of the house, driveway, and the street in front of the home but did not capture the house’s front door. The camera took images 24 hours a day, seven days a week, for eight months. Agents could zoom and tilt the camera. The government ultimately indicted Moore and Moore-Bush for drug trafficking and money laundering offenses.
The information obtained from the pole cameras was intended to be used at trial as evidence and served in part as the basis for warrants for additional surveillance, including tracking locations of individuals using cell phone location data and placing pen registers and trap and trace devices on several cell phones. The district court compared the pole camera surveillance to that of the cell-site records in Carpenter, indicating that the surveillance allowed the authorities to get an intimate view of a suspect’s daily life unlike information that could be obtained by simply being in the public view.
On appeal, the First Circuit indicated that the comparison drawn by the district court to Carpenter was inappropriate. The First Circuit noted that the Supreme Court in Carpenter acknowledged that its holding was “narrow” and did not “call into question conventional surveillance techniques and tools.” The Supreme Court specifically stated that one of these “conventional surveillance techniques and tools” is security cameras, which the First Circuit equated with pole cameras. In addition, the First Circuit drew a “sharp contrast” between the new technology being dealt with in Carpenter, data that is acquired from the use of modern cell phones, and the technology being used in Moore-Bush, which has been used as a form of surveillance since the 1980s. Thus, the First Circuit concluded that under Carpenter, the information obtained from the pole camera would not be considered an unconstitutional search.
Moreover, the First Circuit stated that the district court’s holding was in contravention with Fourth Amendment doctrine not implicated in Carpenter: that an individual does not have a reasonable expectation of privacy to information that one knowingly submits to public view. The Court argued that the pole cameras only captured information that a lay person passing on the street could have observed and therefore, Moore and Moore-Bush had no reasonable expectation of privacy regarding this information as established by foundational Fourth Amendment caselaw in Katz and Smith v. Maryland.4 Indeed, the First Circuit stated “Nowhere in the Carpenter opinion does the Court suggest that any of those cases, or any part of the Court’s existing Fourth Amendment framework . . . has been overruled or modified. Instead, the opinion was framed as ‘how to apply the Fourth amendment to a new phenomenon.’”
Though Carpenter’s impact on the Fourth Amendment landscape is undeniable, the First Circuit’s opinion in Moore-Bush suggests that perhaps it is limited. Couching the Supreme Court’s decision as focusing primarily on the use of new technology and expectations of privacy associated with providing information to a third party, the First Circuit attempted to protect prior precedent and narrow Carpenter’s scope. As more circuits are confronted with interpreting Carpenter, we will monitor whether they take a similar, limited view.
1 United States v. Moore-Bush, Nos. 19-1582, 19-1625, Nos. 19-1583, 19-1626, 2020 WL 3249060 (1st Cir. June 16, 2020).
2 Carpenter v. United States, 138 S. Ct. 2206 (2018).
3 Katz v. United States, 389 U.S. 347 (1967).
4 Smith v. Maryland, 442 U.S. 735 (1979).
