MA: Review of old body cam recording in unrelated investigation was a separate invasion of privacy requiring SW

The use of a body camera in the home responding to a domestic disturbance was reasonable. However, reviewing the body cam recording for the purposes of a later and unrelated investigation without a search warrant was unreasonable. The second look was a separate invasion of privacy. Commonwealth v. Yusuf, SJC-12989 (Mass. Sept. 10, 2021):

Responding to a call about a domestic disturbance at the defendant’s home, a Boston police department (BPD) officer, who was equipped with a body-worn camera, created a digital recording of the encounter; the recording captured the intimate details of the parts of the home through which the officer traveled as he provided the requested assistance. The resulting video footage was stored by the BPD and then retrieved and reviewed, without a search warrant, in connection with an independent investigation to confirm a suspicion that the defendant was engaged in criminal activity.

On the basis of that review, a BPD detective obtained a search warrant to search the defendant’s home; the subsequent search yielded, inter alia, a firearm and ammunition. The defendant’s motion to suppress the fruits of the search was denied by a Superior Court judge (motion judge). Following a jury-waived trial before a different Superior Court judge (trial judge), the defendant was convicted of unlawful possession of a firearm and possession of ammunition without a firearm identification card.

This case presents two issues of first impression in Massachusetts: first, whether the warrantless use of the body worn camera that recorded the interior of the home, the most sacred, constitutionally protected area, comprised a violation of the Fourth Amendment to the United States Constitution or art. 14 of the Massachusetts Declaration of Rights; and, second, whether the subsequent review of the footage obtained, for investigative purposes unrelated to the incident giving rise to its creation, constituted a warrantless search.

We conclude that the use of the body-worn camera within the home was not a search in the constitutional sense, because it documented the officer’s plain view observations during his lawful presence in the home. The later, warrantless, investigatory review of the video footage, however, unrelated to the domestic disturbance call, was unconstitutional. That review resulted in an additional invasion of privacy, untethered to the original authorized intrusion into the defendant’s home; absent a warrant, it violated the defendant’s right to be protected from unreasonable searches guaranteed by the Fourth Amendment and art. 14.

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