Federal Court’s Suppression of Pole Camera Evidence in U.S. v. Moore-Bush Signals Crucial Advancement in Fourth Amendment Protections

June 3, 2019.

In U.S. v. Moore-Bush, 381 F. Supp. 3d 139 (D. Mass. 2019), a federal judge granted a motion to suppress evidence obtained from an eight-month-long pole camera surveillance, finding that it constituted an unconstitutional search under the Fourth Amendment. He determined that the continuous video recording, combined with the ability to zoom in and create a digitally searchable log, violated the defendants’ reasonable expectation of privacy.

Our Take:

In, Moore-Bush, the judge expanded on the logic underlying Supreme Court’s decision in US v. Jones, an encouraging development in Fourth Amendment jurisprudence.  In determining whether one’s expectation of privacy is objectively reasonable, it is disingenuous to argue that as long as an activity is exposed to the public, surveillance of that activity cannot constitute an unreasonable invasion of privacy. The technology at issue in Moore-Bush allows for a level of access and harvests a level and quantity of information not available to even the nosiest neighbor.  And if an individual ever discovered that their neighbor surreptitiously installed the same type of camera, the reasonable response would be to call the police.

A nosy neighbor, though, lacks the resources of the government, and thus, any abuses a neighbor commits with this type of technology would pale in comparison to what the government could accomplish.  This technology allows police create a searchable catalog of evidence pertaining any citizen that police can store until a crime occurs, and then they can mine their data for evidence.  It would be folly to allow police to target a random individual for this type of data collection – or worse, select their targets on the basis of race, religion, or association – in the absence of probable cause and judicial oversight.

The court’s decision is not mere paranoia, jumping at the specter of Big Brother hiding in the shadows.  Instead, it recognizes, as did the Jones court, that the law must keep pace with a rapidly changing world.  Given the advances in technology in recent years, the capabilities of this pole camera are only a harbinger of things to come.  Technology for face and gait recognition already exists.  If a pole camera were so equipped, the government could create a searchable database of the identity of every visitor to your house. Affix the camera to drone or satellite and it does not stretch the imagination to envision the level of personal information police could access.

Of course, if the public knew that police could secretly record the intimate details of their lives, perhaps they would be less likely to engage in criminal activity, a positive development for the government’s interminable war on drugs.  But this must be balanced against the risk that others will be discouraged from engaging in non-criminal but unpopular activities. Faced with creating a permanent record of practicing a religion, joining a group, or consorting with an individual unpopular in the community, one might decline from engaging in any such activity at all.  But these activities are at the heart of the First Amendment, and consequently, at the core of a free society, the existence of which is more valuable than the investigation of Moore-Bush’s alleged drug crime.