D.Mass.: Eight months of constant pole camera digital recording of all comings and goings from defendants’ house violated their reasonable expectation of privacy under Carpenter

The government intends to use at trial parts of eight months of constant pole camera digital recording of all comings and goings from defendants’ house. Such recording and preserving it violated their reasonable expectation of privacy under Carpenter and chilled freedom of association. United States v. Moore-Bush, 2019 U.S. Dist. LEXIS 92631 (D. Mass. June 3, 2019):

Casual observations of a person’s forays in and out of her home do not usually fall within the Fourth Amendment’s protections. Here, the defendants ask the Court to consider whether a precise video log of the whole of their travels in and out of their home over the course of eight months, created by a camera affixed to a utility pole that could also read the license plates of their guests, raises Fourth Amendment concerns. After a thorough analysis of the parties’ arguments and recent Supreme Court authority, the Court rules that it does. Accordingly, the Court ALLOWS the defendants’ motions to suppress, ECF Nos. 326, 358.

. . .

2. The Use of the Pole Camera Invaded Moore-Bush and Moore’s Objectively Reasonable Expectations of Privacy

In light of the principles that the Supreme Court elucidated in Carpenter, this Court holds that Moore-Bush and Moore had an objectively reasonable expectation of privacy in their and their guests’ activities around the front of the house for a continuous eight-month period. See 132 S. Ct. at 2213-14, 2217-18.

In Garcia-Gonzalez, Judge Sorokin came close to suppressing video from a pole camera similar to the one here on the basis of Jones but ultimately pulled back. 2015 U.S. Dist. LEXIS 116312, 2015 WL 5145537, at *9. Jones addressed whether the Government could surreptitiously attach a location tracking device to a car. 565 U.S. at 402. Although the opinion of the Court invalidated the tracking under the common law trespassory test, Justices Alito and Sotomayor filed concurrences that applied the reasonable expectations test, which, combined, obtained the support of a majority of the justices. 565 U.S. at 413-31. Judge Sorokin noted this apparent Supreme Court majority and observed that extended pole camera surveillance raised more serious concerns than the location tracking in Jones:

[T]he two concurrences in Jones, emphasized that “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” 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.” … 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.

Garcia-Gonzalez, 2015 U.S. Dist. LEXIS 116312, 2015 WL 5145537, at *8 (quoting Jones, 565 U.S. at 414 (Sotomayor, J., concurring)). Nevertheless, Judge Sorokin viewed himself bound to apply Bucci’s reasoning because neither Justice Alito nor Justice Sotomayor spoke for the Supreme Court in Jones. Garcia-Gonzalez, 2015 U.S. Dist. LEXIS 116312, 2015 WL 5145537, at *9.

The Supreme Court’s Carpenter decision, however, incorporates the Jones concurrences. See, e.g., Carpenter, 138 S. Ct. at 2215 (quoting with approval Justices Alito and Sotomayor’s conclusion that “‘longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy’ — regardless whether those movements were disclosed to the public at large”); id. at 2217 (quoting Justice Alito’s concurrence stating that “[p]rior to the digital age, law enforcement officers might have pursued a suspect for a brief stretch, but doing so ‘for any extended period of time was difficult and costly and therefore rarely undertaken'”); id. at 2220 (citing Justices Alito and Sotomayor’s Jones concurrences that a search occurs when the Government subjects a vehicle to “pervasive tracking” on public roads). As a consequence, this Court interprets Carpenter to apply the Jones concurrences. This Court thus applies the principles from Carpenter and the Jones concurrences to the Pole Camera here.

In the Court’s view, three principles from the Jones concurrences and Carpenter dictate the resolution of this motion. First, as Justice Sotomayor points out in Jones, “[a]wareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse.” 565 U.S. at 416.7 Second, as Chief Justice Roberts observes in Carpenter, technologies that permit law enforcement officers to access and search vast amounts of passively collected data may “give police access to a category of information otherwise unknowable.” See 138 S. Ct. at 2218. Third, as Justice Alito reasons in Jones, “relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. But the use of longer-term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” 565 U.S. at 430 (citing United States v. Knotts, 460 U.S. 276, 281-82, 103 S. Ct. 1081, 75 L. Ed. 2d 55 (1983)).

The surveillance here risks chilling core First Amendment activities. Consider religious dissenters. Surely the public at the time of the Fourth Amendment’s framing would be familiar with the dissenting religious groups that objected to the Church of England’s practices, such as the Methodists, Pilgrims, Puritans, and Quakers. After Parliament enacted the Act of Uniformity, which compelled all Englishmen to attend Church of England services and criminalized “conduct[ing] or attend[ing] religious gatherings of any other kind,” religious dissenters continued to hold their worship gatherings in secret. See Engel v. Vitale, 370 U.S. 421, 432-33, 82 S. Ct. 1261, 8 L. Ed. 2d 601 (1962). Many of those gatherings took place in private homes to avoid prosecution — often unsuccessfully. See id.; John C. English, John Wesley and the Rights of Conscience, 37 J. Church & St. 349, 350, 360 (1995) (noting that early Methodist ministers preached in private houses notwithstanding the risk that magistrates would fine them for violating the Conventicle Act); see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 530-31, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993) (striking down city ordinance outlawing religious practice that took place in secret); Congregation Jeshuat Israel v. Congregation Shearith Israel, 186 F. Supp. 3d 158, 169 (D.R.I. 2016) (recounting that the first Jewish families to emigrate to the colonies “met to worship at private dwelling houses”), rev’d, 866 F.3d 53 (1st Cir. 2017) (not disturbing this finding of fact). It stands to reason that the public at the time of the amendment’s framing would have understood the King’s constables to violate their understanding of privacy if they discovered that constables had managed to collect a detailed log of when a home’s occupants were inside and when visitors arrived and whom they were.

What’s more, people use their homes for all sorts of liaisons. For example, the Government has no business knowing that someone other than the occupant’s spouse visited the home late at night when the spouse was away and left early in the morning. See Lawrence v. Texas, 539 U.S. 558, 574, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003) (reconfirming that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” (citing Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992)). Nor does the Government have any business tracking a homeowners’ hobbies or regular trips for appointments. Perhaps people would hesitate to have supporters of opposition political parties visit if they knew that the Government might be monitoring their driveway. The continuous video taken by the Pole Camera thus threatens to chill these religious, political, and associational activities. See U.S. Const. amend. I; Jones, 565 U.S. at 416 (Sotomayor, J., concurring) (“Awareness that the Government may be watching chills associational and expressive freedoms.”).

Moreover, the video from the Pole Camera was not only continuous, but also recorded and digitized. Thus, even if the Government were to show no contemporaneous interest in these intimate personal details, the Government can go back on a whim and determine a home occupant’s routines with to-the-second specificity. See Carpenter, 138 S. Ct. at 2218. This capability distinguishes this surveillance from human surveillance. Humans are imperfect note-takers and not all blessed with photographic memory. See id. The Pole Camera, however, captured every single second that passed over eight months in a digitally searchable form. Information that a law enforcement officer might have ignored at the time as irrelevant to the investigation or mis-recorded no longer prevents the Government’s prying eyes from wandering. See id. This power also sets the Pole Camera apart from neighbors; even — or perhaps especially — on a residential street, neighbors notice each other’s peculiar habits. Yet they would not notice all of their neighbors’ habits, especially those activities occurring during traditional working hours or in the dark.

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