D.Mass. somewhat reluctantly concludes, after surveying many cases, that long term pole camera surveillance of defendant’s front door is constitutionally proper

D.Mass. somewhat reluctantly concludes, after surveying many cases, that long term pole camera surveillance of defendant’s front door is constitutionally proper. That surveillance led to a GPS warrant on a car. United States v. Garcia-Gonzalez, 2015 U.S. Dist. LEXIS 116312 (D.Mass. September 1, 2015):

Considering all these principles, and facing contentions decidedly similar to those advanced by Garcia-Gonzalez, another court suppressed evidence obtained from a pole camera.

In United States v. Vargas, law enforcement officers surveilled the defendant’s rural eastern Washington home with a pole camera which continuously recorded activity in the front yard of the defendant’s property for more than six weeks. The camera had panning and zooming capabilities which could be used on the live feed, the live feed could be viewed remotely, and images could be transmitted to law enforcement computers. Invoking Jones and Jardines, and analyzing under the “reasonable-expectation-of-privacy approach,” the Court ruled that such continuous use of a concealed camera, installed off of the defendant’s property, required a search warrant to pass constitutional muster. Order Granting Defendant’s Motion to Suppress at 1-2, 12-13, United States v. Vargas, No. CR-13-6025-EFS, 2014 U.S. Dist. LEXIS 184672 (E D. Wash. Dec. 15, 2014), ….

Vargas set forth a persuasive approach and analysis. And Vargas is not alone in finding Fourth Amendment problems with extended pole camera surveillance. In United States v. Houston, 965 F. Supp. 2d 855, 871 (E.D. Tenn. 2013), the Court, relying on Anderson-Bagshaw, concluded that ten weeks (an amount, at most, slightly less than half of the duration of the surveillance in the instant case), “crosses into the unreasonable.” Lengthy, sustained surveillance of a person’s home during which the police observe (and record) every coming and going to the home raises substantial privacy concerns. Several Courts, even when not suppressing, have expressed substantial Fourth Amendment concern regarding continuous intrusive video surveillance. See, e.g., Anderson-Bagshaw, 509 F. App’x at 405 (“[W]e confess some misgivings about a rule that would allow the government to conduct long-term video surveillance of a person’s backyard without a warrant. Few people, it seems, would expect that the government can constantly film their backyard for over three weeks using a secret camera that can pan and zoom and stream a live image to government agents.”); United States v. Nerber, 222 F.3d 597, 603 (9th Cir. 2000) (“Hidden video surveillance is one of the most intrusive investigative mechanisms available to law enforcement. The sweeping, indiscriminate manner in which video surveillance can intrude upon us, regardless of where we are, dictates that its use be approved only in limited circumstances.”); United States v. Cuevas-Sanchez, 821 F.2d 248, 251 (5th Cir. 1987) (“This type of surveillance provokes an immediate negative visceral reaction: indiscriminate video surveillance raises the spectre of the Orwellian state.”). And five Supreme Court Justices, in the two concurrences in Jones, emphasized that “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” 132 S. Ct. at 955 (Sotomayor, J., concurring). Justice Sotomayor remarked that “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associates.” Id. (Sotomayor, J., concurring). At that, GPS data provides only the “where” and “how long” of a person’s public movements insofar as the person remains close to the monitored vehicle. Long-term around-the-clock monitoring of a residence chronicles and informs the “who, what, when, why, where from, and how long” of a person’s activities and associations unfolding at the threshold adjoining one’s private and public lives.

Nonetheless, I must deny defendant’s Motion under First Circuit precedent. In Bucci, the First Circuit found no Fourth Amendment violation where law enforcement conducted eight months of surveillance on the front of the defendant’s home from a video camera installed without a warrant on a utility pole across the street. 582 F.3d at 116. Unlike the instant case, the agents in Bucci had a basis for probable cause (though, they did not obtain a warrant)—they had been “advised by a confidential informant (“CI”) that Bucci was trafficking marijuana from his residence . . . . The CI advised agents that (a) during the CI’s ten year acquaintance with Bucci, s/he had sold narcotics to Bucci on numerous occasions, including several pounds of marijuana; (b) s/he had delivered marijuana to Bucci’s residence, … The CI also provided information on Bucci’s age, address, telephone numbers, and positively identified Bucci from a physical sighting with agents.” Order Denying Motion to Suppress at 1-2, United States v. Bucci, No. 03-CR-10220-MEL, 2004 U.S. Dist. LEXIS 32452 (D. Mass. Dec. 22, 2004) (Lasker, J.), ECF No. 114, available at https://www.pacer.gov . Nevertheless, as the government acknowledged below, the video surveillance revealed no suspicious activity for the first five months in operation. Order Denying Motion to Suppress at 9-10.

With the camera, agents could view the defendant’s driveway, a portion of his front yard, his garage door, and the inside of the garage when the door was open. Bucci, 582 F.3d at 116; Order Denying Motion to Suppress at 10. Agents could not change the view or magnification of the camera without being physically present. Bucci, 582 F.3d at 116. Bucci had erected no fences, gates, or shrubbery to obstruct the view of the front of his home as seen by the camera. Id. at 116-17. Noting that what was in view of the camera was “plainly visible,” the First Circuit concluded, “Bucci has failed to establish either a subjective or an objective expectation of privacy in the front of his home, as viewed by the camera. We focus here only on the lack of a reasonable objective expectation of privacy because this failure is so clear.” Id. at 116-17 (citing Katz, 389 U.S. at 351). Although the Court did not elaborate or analyze potential Fourth Amendment concerns of long-term surveillance aided by ever-advancing technology, it nonetheless held that such surveillance did not constitute a Fourth Amendment violation. This holding binds this Court.

The Opinion of the Court in Jones did not overrule Bucci, and, unlike the concurrences in Jones, it did not undermine Bucci’s legal or analytic foundations. Rather, it identified an additional (inapplicable in this case) mode of analysis and reserved on considering whether electronic surveillance of extensive duration violates the Fourth Amendment in the absence of a warrant. See Jones, 132 S.Ct. at 953-54 (“[U]nlike the concurrence, which would make Katz the exclusive test, we do not make trespass the exclusive test. Situations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis. … It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.”) (emphasis in original). In these circumstances, Bucci remains circuit precedent that I am bound to follow.

Accordingly, Defendant’s Motion to Suppress (Doc. No. 49) is DENIED.

Just put on Lexis is the more interesting United States v. Vargas, 2014 U.S. Dist. LEXIS 184672 (E.D.Wash. December 15, 2014):

Because the invasive and continuous manner in which the video camera was used for six weeks to surreptitiously record Mr. Vargas’ front yard clearly violates Mr. Vargas’ Fourth Amendment right to be free from unreasonable search, whether the video camera is or is not “in general public use” is immaterial to the Court’s Fourth Amendment analysis. Cf. Kyllo v. United States, 533 U.S. 27, 34, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001) (obtaining information regarding conduct inside a home through the use of technology that is not in general public use is a search); Dow Chem. Co. v. United States, 476 U.S. 227, 238, 106 S. Ct. 1819, 90 L. Ed. 2d 226 (1986) (recognizing that “surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant”). Further, given the continued advancement of technology and reduction of cost in “old technology,” the “in general public use” doctrine may lose viability: but this is a question for a different day. Colin Shaff, Is the Court Allergic to Katz? Problems Posed by New Methods of Electronic Surveillance to the “Reasonable-Expectation-of-Privacy” Test, 23 S. Cal. Interdisc. L.J. 409, 448 (Winter 2014) (questioning the Katz test and suggesting that “although new surveillance technologies may be superficially similar to preceding technologies, modern technology can produce a detailed and broad picture of an individual, entailing a very different violation of privacy than did the earlier technology”).

In summary, the severe governmental intrusion into Mr. Vargas’ privacy was an unreasonable search.12 See Nerber, 222 F.3d at 600 (encouraging courts to consider the severity of the governmental intrusion when assessing whether an individual has a reasonable expectation of privacy). Because a warrant was not obtained to install and operate the video camera, and the USAO has not proffered any exception to the warrant requirement, the evidence obtained from the video surveillance is suppressed as the Fourth Amendment “requires adherence to judicial processes and … searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz, 389 U.S. at 357 (internal citations and quotations omitted); see also Riley, 134 S. Ct. at 2482 (“Such a warrant ensures that the inferences to support a search are ‘drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.'” (internal citation removed)); Payton v. New York, 445 U.S. 573, 585, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1979) (“Unreasonable searches or seizures conducted without any warrant at all are condemned by the plain language of the” Fourth Amendment.). In addition, because the search warrant subsequently obtained on May 14, 2013, to search Mr. Vargas’ home and property was based on the information obtained from the video surveillance, the evidence discovered pursuant to the execution of the search warrant is suppressed.13 See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963) (“fruit of the poisonous tree”).

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