United States v. Moore-Bush, 2020 WL 3249060 (1st Cir. 2020)
Nia Moore-Bush, an attorney and magistrate, operated a side business dealing in illegal drugs and guns. She and her boyfriend lived with her mother in a quiet residential neighborhood. After a confidential informant bought four guns illegally at the Moore residence, officers installed a pole camera that viewed one side of the house. The pole camera actively monitored the Moore residence for approximately eight months.
The pole camera could be manually focused, panned and zoomed. In daylight hours, using the zoom, the camera could capture readable license plates on vehicles in the Moore driveway. Over the course of several months, officers also conducted physical surveillance of the Moore residence. The camera captured nothing the officers, or anyone else on the street, could not see by passing the residence.
Based in part on evidence gleaned from the pole camera, officers obtained warrants for GPS trackers on vehicles used by Moore and her boyfriend. Officers also obtained a warrant to search the private contents of the boyfriend’s Facebook account as well as warrants to install pen registers, to install trap-and-trace devices on several cell phones and to wiretap several phones.
Moore, her boyfriend and eventually Moore’s mother, were charged with drug trafficking. Moore and her mother challenged the evidence obtained from the pole camera. Though the majority rule provides that a pole camera revealing nothing more than can be lawfully viewed by officers on the street requires no warrant, Moore argued the Supreme Court decision in Carpenter v. United States (138 S. Ct. 2206 (2018)), should be interpreted to require a warrant to install one. In Carpenter, the Supreme Court held the government must obtain a warrant to access historical cell site location data (data collected for more than seven days).
The third-party doctrine provides that information voluntarily shared with a third party, such as a bank (checking account records) or landline telephone company (pen registers), may be shared with the government without the necessity of obtaining a search warrant.
The trial court agreed with Moore that the use of the pole camera for an extended period, coupled with the ability to zoom and to search the recordings, constituted a search under the Fourth Amendment, leading to suppression of critical evidence. The court of appeals reversed, focusing on the limited effect of Carpenter. Foremost, the Supreme Court stated its holding in Carpenter was “narrow” and does not “call into question conventional surveillance techniques and tools.” Such conventional technologies include “security cameras.” The Carpenter decision was founded on the Court’s interpretation of the third-party doctrine. The third-party doctrine provides that information voluntarily shared with a third party, such as a bank (checking account records) or landline telephone company (pen registers), may be shared with the government without the necessity of obtaining a search warrant.
The appellate court held that the trial court “transgressed a fundamental Fourth Amendment doctrine not revoked by Carpenter, that what one knowingly exposes to public view does not invoke reasonable expectations of privacy protected by the Fourth Amendment.” Because the Carpenter decision did not impact the use of surveillance cameras—even for an extended period of surveillance and recording—the trial court should have followed the established law holding that the use of a pole camera is not a search.
This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.