Long term surveillance of defendant’s homes with pole cameras wasn’t a Fourth Amendment violation but it could violate the Massachusetts Constitution. Two defendants show a reasonable expectation of privacy under a “mosaic theory” which has been recognized in Massachusetts. Remanded for further consideration. Commonwealth v. Mora, 2020 Mass. LEXIS 471 (Aug. 6, 2020):
Most courts to have addressed pole camera surveillance have concluded that it does not infringe on any reasonable expectation of privacy. The recent decision in United States v. Moore-Bush, 963 F.3d 29 (1st Cir. 2020), typifies these courts’ approach. There, the United States Court of Appeals for the First Circuit determined that pole camera surveillance is not a search because it falls under the “public view” principle that an individual does not have an expectation of privacy in items or places he exposes to the public. See id. at 32. See id. at 42, quoting California v. Ciraolo, 476 U.S. 207, 213, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986) (“[a]ny home located on a busy public street is subject to the unrelenting gaze of passersby, yet ‘[t]he Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares’”). See also United States v. Bucci, 582 F.3d 108, 116-117 (1st Cir. 2009); United States v. Jackson, 213 F.3d 1269, 1280-1281 (10th Cir.), judgment vacated on other grounds, 531 U.S. 1033, 121 S. Ct. 621, 148 L. Ed. 2d 531 (2000); United States vs. Aguilera, U.S. Dist. Ct., No. 06-CR-336 (E.D. Wis. Feb. 11, 2008).
Following the United States Supreme Court’s decisions in United States v. Jones, 565 U.S. 400, 404, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012), and Carpenter v. United States, 138 S. Ct. 2206, 2217, 201 L. Ed. 2d 507 (2018), which discussed how extended GPS vehicle tracking and CSLI surveillance can intrude on reasonable expectations of privacy, several courts have reassessed prolonged pole camera surveillance. See, e.g. United States vs. Vargas, U.S. Dist. Ct., No. CR-13-6025, slip op. at 27 (E.D. Wash. Dec. 15, 2014) (six weeks of pole camera surveillance was search); State v. Jones, 2017 SD 59, ¶ 43, 903 N.W.2d 101 (two months of pole camera surveillance was search); People v. Tafoya, 2019COA176 ¶ 51 (three months of pole camera surveillance constituted search). The defendants urge us to follow in the footsteps of these courts, and to apply the “mosaic theory,” which we adopted in Commonwealth v. McCarthy, 484 Mass. 493, 504-505, 142 N.E.3d 1090 (2020), to conclude that the extended and targeted pole camera surveillance of the defendants violated their reasonable expectations of privacy. Neither we, nor the United States Supreme Court, have considered the constitutional implications of the long-term and targeted video surveillance at issue in this case. Because the status of pole camera surveillance “remains an open question as a matter of Fourth Amendment jurisprudence,” we will not “wade into these Fourth Amendment waters.” See Almonor, 482 Mass. at 42 n.9. “Instead we decide the issue based on our State Constitution, bearing in mind that art. 14 … does, or may, afford more substantive protection to individuals than that which prevails under the Constitution of the United States” (quotations and citation omitted). Id.
To show that the use of pole cameras in this case was a “search” under art. 14, the defendants bear the burden of establishing that (1) they “manifested a subjective expectation of privacy in the object of the search,” and (2) “society is willing to recognize that expectation as reasonable.” Augustine, 467 Mass. at 242, quoting Commonwealth v. Montanez, 410 Mass. 290, 301, 571 N.E.2d 1372 (1991).
i. Subjective expectation of privacy. For the reasons to be discussed, we conclude that Mora and Suarez have established that they manifested a subjective expectation of privacy in the aggregate of their activities captured by the security cameras. Guerrero, however, has not.
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Both Mora and Suarez, however, filed affidavits in which they stated that they did not expect to be surveilled coming and going from their homes over an extended period. Cf. Augustine, 467 Mass. at 255 n.38 (“In support of his motion to suppress, the defendant submitted an affidavit stating that he acquired his cellular telephone for his own personal use, never permitting the police or other law enforcement officials access to his telephone records”). Considering the two months and five months for which Suarez and Mora’s residences, respectively, were the targets of video surveillance, these affidavits are sufficient.
We reject the Commonwealth’s contention that the absence of fencing or other efforts to shield Mora’s and Suarez’s residences from view shows that they lacked any subjective expectation of privacy in those areas. The traditional barriers to long term surveillance of spaces visible to the public have not been walls or hedges — they have been time and police resources. See Jones, 565 U.S. at 429 (Alito, J. concurring). While people subjectively may lack an expectation of privacy in some discrete actions they undertake in unshielded areas around their homes, they do not expect that every such action will be observed and perfectly preserved for the future. See, e.g., United States v. Anderson-Bagshaw, 509 Fed. Appx. 396, 405 (6th Cir. 2012) (“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”).
Moreover, requiring defendants to erect physical barriers around their residences before invoking the protections of the Fourth Amendment and art. 14 would make those protections too dependent on the defendants’ resources. In Commonwealth v. Leslie, 477 Mass. 48, 54, 76 N.E.3d 978 (2017), we noted that affording different levels of protection to different kinds of residences “is troubling because it would apportion Fourth Amendment protections on grounds that correlate with income, race, and ethnicity” (quotation and citation omitted). Similarly, the capacity to build privacy fences and other similar structures likely would correlate closely with land ownership and wealth.
A resource-dependent approach thus would be contrary to the history and spirit of art. 14. As Eighteenth Century British Prime Minister William Pitt said when opposing warrantless searches,
“The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement.”
Donohue, The Original Fourth Amendment, 83 U. Chi. L. Rev. 1181, 1238 (2016) (Donohue).
We will not undermine these long-held egalitarian principles by making the protections of art. 14 contingent upon an individual’s ability to afford to install fortifications and a moat around his or her castle.9Link to the text of the note
ii. Reasonable expectation of privacy. Whether Mora and Suarez’s expectation of privacy is one that society would regard as “‘reasonable,’ ‘justifiable,’ or ‘legitimate’” is a more difficult question (citation omitted). See Commonwealth v. One 1985 Ford Thunderbird Auto., 416 Mass. 603, 607, 624 N.E.2d 547 (1993). “The inquiry is one highly dependent on the particular facts and circumstances of the case.” Id. Among the factors this court has considered are “whether the public had access to, or might be expected to be in, the area from which the surveillance was undertaken; the character of the area (or object) that was the subject of the surveillance; and whether the defendant has taken normal precautions to protect his or her privacy.” Almonor, 482 Mass. at 42 n.10.
In Commonwealth v. Rousseau, 465 Mass. 372, 382, 990 N.E.2d 543 (2013), this court considered whether “contemporaneous electronic monitoring of one’s comings and goings in public places invades one’s reasonable expectation of privacy.” For the first time, we recognized that “under art. 14, a person may reasonably expect not to be subjected to extended GPS electronic surveillance by the government, targeted at his [or her] movements, without judicial oversight and a showing of probable cause.” Id.
Recently, we adapted the reasonable expectation of privacy analysis of Rousseau to automatic license plate reader (ALPR) cameras by adopting the “mosaic theory.” McCarthy, 484 Mass. at 503-504. As we explained, “[a] detailed account of a person’s movements, drawn from electronic surveillance, encroaches upon a person’s reasonable expectation of privacy because the whole reveals far more than the sum of the parts.” Id. at 504. Extended surveillance “reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble” (citation omitted). Id. We ultimately held, on the limited record before us, that the “four cameras at fixed locations on the ends of two bridges” did not reveal this kind of constitutionally-sensitive information, and, thus, the automatic ALPR surveillance employed in McCarthy did not rise to the level of a search. Id. at 509.
In this case, as in McCarthy, we are considering the import of a relatively small number of cameras, here, five. Only two of these cameras were targeted at Mora’s and Suarez’s residences. The defendants nonetheless argue that all footage from any of the five cameras that captures their comings and goings must be suppressed under the mosaic theory. We do not agree. Rather, we conclude that the cameras installed to surveil the defendants’ homes were of greater constitutional significance than those, as in McCarthy, that were directed at a public highway.