United States v. Moore-Bush ( 2022 )

United States Court of Appeals
For the First Circuit
Nos. 19-1582
19-1625
UNITED STATES,
Appellant,
v.
NIA MOORE-BUSH, a/k/a Nia Dinzey,
Defendant, Appellee.
Nos. 19-1583
19-1626
UNITED STATES,
Appellant,
v.
DAPHNE MOORE,
Defendant, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Barron, Chief Judge,
Lynch, Howard, Thompson, Kayatta, and Gelpí, Circuit Judges.
Randall E. Kromm, Assistant United States Attorney, with whom
Andrew E. Lelling, United States Attorney, was on brief, for
appellant.
Judith H. Mizner, Assistant Federal Public Defender, for
appellee Nia Moore-Bush, a/k/a Nia Dinzey.
Linda J. Thompson, with whom John M. Thompson and Thompson &
Thompson, P.C. were on brief, for appellee Daphne Moore.
Matthew R. Segal, with whom Jessie J. Rossman, Nathan Freed
Wessler, Brett Max Kaufman, Andrew Crocker, Samir Jain, Gregory T.
Nojeim, and Mana Azarmi were on brief, for amici curiae American
Civil Liberties Union, American Civil Liberties Union of
Massachussetts, Center for Democracy & Technology, and Electronic
Frontier Foundation in support of defendant-appellees.
Bruce D. Brown, with whom Katie Townsend, Gabriel Rottman,
and Mailyn Fidler were on brief, for amici curiae Reporters
Committee for Freedom of the Press and Eight Media Organizations
in support of defendant-appellees.
____________________
Opinion En Banc
June 9, 2022
AMENDED OPINION
 The full version of this opinion was filed on May 27,
2022,and remains on file, under seal, in the Clerk's Office.
Per curiam. The district court order granting Daphne
Moore and Nia Moore-Bush's motions to suppress is unanimously
reversed by the en banc court. We remand with instructions to
deny the motions to suppress.
- Concurring Opinions Follow -
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BARRON, Chief Judge, THOMPSON and KAYATTA, Circuit
Judges, concurring. The Fourth Amendment to the U.S. Constitution
"seeks to secure 'the privacies of life' against 'arbitrary
power,'" Carpenter v. United States, 138 S. Ct. 2206, 2214 (2018)
(quoting Boyd v. United States, 116 U.S. 616, 630 (1886)), by
"plac[ing] obstacles in the way of a too permeating police
surveillance," id. (quoting United States v. Di Re, 332 U.S. 581,
595 (1948)). It is with that "Founding-era understanding[] in
mind," id., that we must determine in these consolidated appeals
whether the Fourth Amendment places any limits on the use by law
enforcement of the kind of surveillance -- unimagined in 1789 --
that it engaged in here: the continuous and surreptitious
recording, day and night for eight months, of all the activities
in the front curtilage of a private residence visible to a
remotely-controlled digital video camera affixed to a utility pole
across the street from that residence.
The Fourth Amendment issue concerning the use of such
surveillance arises here in connection with the criminal cases
that the federal government brought in the United States District
Court for the District of Massachusetts against Nia Moore-Bush and
her mother, Daphne Moore, on federal drug- and gun-related charges.
Each defendant moved in the District Court to suppress on Fourth
Amendment grounds all evidence derived from the digital compendium
created through the long-term use of the video pole-camera
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surveillance of the front curtilage of the defendants' residence.
The government opposed the motions on the ground that no Fourth
Amendment "search" had been conducted. The District Court then
granted the defendants' motions to suppress.
As we will explain, we conclude -- unlike our colleagues
-- that the government did conduct a Fourth Amendment "search"
when it accessed the digital video record that law enforcement had
created over the course of the eight months in question,
notwithstanding the government's contention that the record itself
is merely a compendium of images of what had been exposed to public
view. As we also will explain, however, we agree with our
colleagues that the District Court's order granting the
defendants' motions to suppress must be reversed.
We come to that latter conclusion because the relevant
controlling precedent from our circuit that was in place at the
time that the government drew upon the pole-camera surveillance
was United States v. Bucci, 582 F.3d 108 (1st Cir. 2009). And,
there, a panel of this court had held that the use by law
enforcement of uncannily similar pole-camera surveillance did not
constitute a search within the meaning of the Fourth Amendment and
so raised no Fourth Amendment concerns. Id. at 116-17. Thus,
while we conclude -- unlike our colleagues -- that subsequent
developments in Fourth Amendment jurisprudence support the
overruling of Bucci and the conclusion that the government
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conducted a search here, we also conclude that, under the "good
faith" exception to the Fourth Amendment's warrant requirement,
see Davis v. United States, 564 U.S. 229, 238-41 (2011), the
government was entitled to rely on Bucci in acting as it did,
Bucci, 582 F.3d at 116. Cf. United States v. Campbell, 26 F.4th
860, 873, 887-88 (11th Cir. 2022) (en banc) (applying the good-
faith exception even though it had not been raised by the parties
in their initial briefings).
The result is that our court is unanimous in holding
that the District Court's order granting the motions to suppress
must be reversed. Our court's rationale for that holding, however,
is most decidedly not.
The three of us who join this separate opinion would
reverse the District Court's order granting the defendants'
motions to suppress based solely on the "good faith" exception to
the Fourth Amendment's warrant requirement. We reject, however,
our colleagues' view that the accessing by law enforcement in a
criminal case of the record created by the kind of suspicionless,
long-term digital video surveillance at issue here does not
constitute a Fourth Amendment search.
Mindful of the brave new world that the routine use of
such all-encompassing, long-term video surveillance of the front
curtilage of a home could bring about, we are convinced that the
government does conduct a search within the meaning of the Fourth
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Amendment when it accesses the record that it creates through
surveillance of that kind and thus that law enforcement, in doing
so, must comply with that Amendment's limitations. For, in accord
with post-Bucci precedents from the Supreme Court of the United
States that recognize the effect that the pace of technological
change can have on long assumed expectations of privacy, we are
convinced that no other conclusion would be faithful to the balance
that the Fourth Amendment strikes between the right to be "secure"
in one's home and the need for public order.1
I.
A.
The following facts -- including the characteristics of
the pole camera and the recording that it produced -- are
undisputed on appeal. The federal Bureau of Alcohol, Tobacco,
Firearms and Explosives ("ATF") began investigating Moore-Bush in
January 2017, for the unlicensed sale of firearms.2 ATF began to
1Although we conclude that the motions to suppress must be
denied pursuant to the good-faith exception to the warrant
requirement, we conclude that it would not be appropriate to rely
solely on that ground to resolve this case. The question of
Bucci's status in this circuit going forward is an important one.
Cf. Pearson v. Callahan, 555 U.S. 223, 236 (2009) (allowing "courts
of appeals . . . to exercise their sound discretion in deciding
which of the two prongs of the qualified immunity analysis should
be addressed first," including whether the constitutionality of
the officer's conduct should be analyzed first).
Our colleagues discuss in some detail the circumstances that
2
caused law enforcement to begin to investigate Moore-Bush. Those
details are not pertinent to this analysis, however, because the
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have concerns during the investigation that Moore-Bush was
trafficking in narcotics.
About a month into the ATF investigation, Moore-Bush
moved in with her mother, Moore, who lived at 120 Hadley Street in
Springfield, Massachusetts. ATF agents claimed that they came to
suspect that Moore-Bush -- though not, at that point, her mother
-- was using the Hadley Street residence as the site for illegal
firearms and narcotics transactions.
The location of the home made it difficult for law
enforcement to undertake the physical surveillance of it. So, on
or around May 17, 2017, ATF agents, without seeking a warrant,
surreptitiously installed a digital video camera near the top of
a utility pole across the public street from the residence.
The District Court found -- based on the defendants'
undisputed contentions -- that the digital, video pole camera was
"hid[den] . . . out of sight of its targets." It further found
that law enforcement used the camera to "surreptitiously
surveil[]" the Hadley Street residence.
government does not assert that its use of the pole camera to
create the compendium at issue was supported by any quantum of
suspicion. We thus must assess the constitutionality of the
government's use of this surveillance on the understanding that it
had no reasonable basis to suspect wrongdoing by the defendants at
the relevant time.
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ATF agents were able to view a live-stream of what the
camera recorded through a password-protected website. The agents
also could, remotely, pan, tilt, and zoom3 the camera to better
focus on individuals or objects of interest.
When not zoomed, the camera had within its view roughly
half of the front structure of the 120 Hadley Street residence,
including its side entrance and a gardening plot near that
entrance, the whole of the home's private driveway, the front of
the home's garage, much of the home's front lawn, and the vast
majority of the walkway leading from the home's private driveway
up to the home's front door (although not the front door itself).4
The camera also had within its view a portion of the public street
3 The camera's zoom feature enabled a significant level of
magnification. Although the record does not disclose the camera's
precise capability on that dimension, the government in filings
below "analogized [that] feature to a law enforcement agent using
binoculars." Images in the record reflect that, by zooming, the
camera was able to accurately capture facial expressions, details
on clothing, small objects in a person's hands (such as keys or a
cigarette), and the license plate numbers of cars parked in the
residence's private driveway.
4 The government represented to the District Court at the
suppression hearing on May 13, 2019, that the pole camera did not
have "a full clear view of the entire exterior of the home" as
there was "one tree that partially obfuscate[d] the view of the
pole camera." The government then explained in a subsequent filing
that, at least during the winter, "there was no obstruction -- the
leaves had fallen and the view was clear." In this respect, we
note that the pole camera was in place surveilling the home from
May 2017 until January 2018.
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that ran parallel to the front of the house and perpendicular to
the private driveway.
Because of the positioning of the camera, it was not
able to peer into the home's interior. However, images in the
record taken from the footage captured by the camera indicate that
the camera could discern the presence of a person looking out the
front windows of the house and see inside the front of the garage
when its door was up.
The camera recorded in color, but it did not record
audio. The camera's footage was digitally stored and could be
retrieved and re-watched at any time.
The camera could and did operate at night, but the
resulting footage was lower in quality. For example, when the
camera recorded in the dark, it became more difficult -- although
not impossible -- for the camera accurately to depict license plate
numbers.
The camera recorded the Hadley Street residence for
approximately eight months without interruption. It captured
numerous comings, goings, and occurrences in the front curtilage
of the residence -- from the mundane (such as persons going to and
from the residence, parking, smoking cigarettes, or taking out the
trash) to the potentially incriminating. The resulting record
included all these movements and interactions. The government
does not represent that law enforcement officers were continuously
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watching the livestream of the video while the camera was
recording.
B.
A federal grand jury indicted Moore-Bush on January 11,
2018, for conspiracy to distribute and possess with intent to
distribute heroin and cocaine base in violation of 21 U.S.C.
§§ 841(a)(1), 846. Moore-Bush was also subject to a drug
forfeiture allegation under 21 U.S.C. § 853. Four other defendants
(but not Moore) were named in that indictment.
Moore-Bush was arrested the following day. The pole
camera was removed soon after Moore-Bush's arrest, which occurred
about eight months after the camera began recording.
Nearly a year after Moore-Bush's arrest, on December 20,
2018, a grand jury returned a superseding indictment that charged
Moore-Bush and, for the first time, her mother, Moore. The
superseding indictment charged Moore-Bush with, among other
crimes, conspiracy to distribute and possess with intent to
distribute heroin, cocaine, and cocaine base in violation of 21
U.S.C. §§ 841(a)(1), 846 (Count One); distribution and/or
possession with intent to distribute various narcotics in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Counts Two
through Six); conspiracy to deal firearms without a license in
violation of 18 U.S.C. § 371 (Count Twenty); and dealing firearms
without a license in violation of 18 U.S.C. § 922(a)(1)(A) (Counts
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Twenty-One and Twenty-Two).5 The superseding indictment also
charged Moore with, among other crimes, conspiracy to distribute
and possess with intent to distribute heroin, cocaine, and cocaine
base in violation of 21 U.S.C. §§ 841(a)(1), 846 (Count One); and
distribution and possession with intent to distribute heroin,
cocaine, and cocaine base in violation of 21 U.S.C. § 841(a)(1)
(Count Three).6
On April 22, 2019, Moore moved to suppress the record
created by the pole camera and all "fruits" of it. Moore-Bush
filed a similar suppression motion on May 2, 2019. Each motion
argued that law enforcement had engaged in a warrantless search
within the meaning of the Fourth Amendment that was unreasonable
based on "the prolonged, covert use of a hidden pole camera to
. . . record the activities associated with" the Hadley Street
residence for a period of eight months.
5 Moore-Bush was also charged with conspiracy to launder money
in violation of 18 U.S.C. § 1956(h) (Counts Seven and Eight); money
laundering in violation of 18 U.S.C. §§ 2, 1956(a)(1) (Counts
Eleven and Fourteen through Nineteen); and aiding and abetting the
possession of a firearm by a felon, in violation of 18 U.S.C. §§ 2,
922(g)(1) (Count Twenty-Three). She faced a drug forfeiture charge
as well.
6 Moore was also charged with money laundering and money
laundering conspiracy in violation of 18 U.S.C. § 1956(a)(1), (h)
(Counts Eight and Fourteen through Nineteen); and making false
statements to federal agents in violation of 18 U.S.C. § 1001(Count Twenty-Four). She also faced a drug forfeiture charge.
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The government did not contend that this surveillance
was supported by either probable cause or reasonable suspicion to
believe that a crime had been committed, let alone that it was
authorized by a warrant. Rather, the government contended that
the defendants' suppression motions must be rejected because,
under this circuit's decision in Bucci, which applied Katz v.
United States, 389 U.S. 345 (1967), the "images captured by the
pole camera [did not] violate[] the [d]efendant[s'] objectively
reasonable expectation of privacy in the view of" the curtilage of
their home and so no Fourth Amendment search had occurred. The
government thus contended that it could use, in the defendants'
criminal cases, any digital video footage or still images captured
by the pole camera over the eight-month span in which it was in
operation, including any images that the camera had captured "from
November 2017 through January 2018."
In Bucci, a panel of this court addressed a motion to
suppress that concerned evidence produced by a government-
installed digital video pole camera that had been pointed for eight
months at the front of the defendant's home as part of a criminal
investigation. 582 F.3d at 116. Bucci in a brief paragraph of
analysis rejected the defendant's motion to suppress. It held
that the surveillance conducted via the pole camera did not
interfere with any subjective expectation of privacy on the part
of the defendant because the defendant had taken no measures to
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hide the activities that occurred in his home's curtilage from
public view. Id. at 116. Bucci also observed that the
surveillance did not interfere with any objectively reasonable
expectation of privacy on the part of the defendant, because the
images captured by the camera were solely of conduct that had
occurred in public view. Id. at 117.
Notwithstanding Bucci, the District Court on June 3,
2019, granted both defendants' motions to suppress the digital
record created by the pole camera and any of the record's fruits.7
The District Court concluded in so ruling that Bucci was no longer
binding precedent because it conflicted with a subsequent Supreme
Court precedent, Carpenter v. United States, 138 S. Ct. 2206(2018). See United States v. Moore-Bush, 381 F. Supp. 3d 139,
144-45 (D. Mass. 2019).
Carpenter followed United States v. Jones, 565 U.S. 400(2012), which was itself decided three years after Bucci. The
Supreme Court determined in Jones that the "installation of a GPS
tracking device on a target's vehicle" to "monitor the vehicle's
movements" for twenty-eight days "constitut[ed] a search . . .
within the meaning of the Fourth Amendment." Jones, 565 U.S. at
404-05. The majority opinion in Jones based that conclusion on
the common-law trespassory test for determining whether a Fourth
7 The order was amended the following day in ways that are
not relevant to the issues before us.
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Amendment search had occurred because the GPS-tracking device had
been affixed by law enforcement to the target's vehicle without
the vehicle owner's knowledge or permission. Id. at 405-06, 409,
411. Five Justices across two concurrences, however, also found
in that case that a Fourth Amendment search had occurred under the
"reasonable expectation of privacy" test from Katz because "longer
term GPS monitoring . . . impinges on expectations of privacy"
that one reasonably has in the entirety of one's movements -- even
when made in public -- over a substantial period. Id. at 430(Alito, J., concurring in the judgment joined by three Justices);
see also id. at 415 (Sotomayor, J., concurring).
Carpenter presented the Court with a somewhat similar
question to the one presented in Jones, as it, too, raised a
question about whether the use of warrantless, long-term
electronic surveillance comported with the Fourth Amendment.
Specifically, the issue in Carpenter concerned whether the
government had conducted a search within the meaning of the Fourth
Amendment when it "accessed" -- without a warrant -- seven days'
worth of historical cell-site location information ("CSLI") from
a wireless carrier by requesting that the wireless carrier provide
that information. See Carpenter, 138 S. Ct. at 2212, 2217 n.3,
2219.
The Court concluded in Carpenter that, under Katz, the
government had conducted a search by "access[ing]" through the
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request to the wireless carrier that amount of CSLI both because
"an individual maintains a legitimate expectation of privacy in
the record of his physical movements as captured through CSLI" --
even if those movements take place in public -- and because the
"access[ing]" of that amount of the defendant's historical CSLI
from the wireless carrier "contravene[d] that expectation." Id.
at 2217, 2219. The Court reached that conclusion even though the
government had received from the wireless carrier only two days'
worth of the total of the seven days' worth of the historical CSLI
that the government had requested from the wireless carrier. See
id. at 2212.
The District Court "read[] Carpenter . . . to cabin --
if not repudiate -- th[e] principle" that Bucci's reasoning had
rested on: that, as a categorical matter, "[a]n individual does
not have an expectation of privacy in items or places he exposes
to the public." Moore-Bush, 381 F. Supp. 3d at 144 (third
alteration in original) (quoting Bucci, 582 F.3d at 116-17).
Having concluded that, after Carpenter, Bucci was not binding on
that point, the District Court then held that a Fourth Amendment
search had occurred here. Id. at 148-49.
The District Court explained that the defendants had
"exhibited an actual, subjective expectation of privacy that
society recognizes as objectively reasonable" in the "aggregate"
of what was visible to the pole camera over the eight months that
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the camera was recording. Moore-Bush, 381 F. Supp. 3d at 143.
The District Court also analogized the digital record accessed by
the government here to the twenty-eight days' worth of GPS data
that the government in Jones had obtained from the GPS tracker
that the government had installed on the defendant's vehicle in
that case and the seven days' worth of the historical CSLI that
the government had accessed from the wireless carrier in Carpenter.
Id. Moreover, as the government did not argue that it had complied
with the Fourth Amendment insofar as a search within the meaning
of that Amendment had occurred, the District Court granted the
defendants' motions to suppress the digital record that had been
created from the pole-camera surveillance and any evidence derived
from it. Id. at 149-50.
The government filed a motion for reconsideration on
June 5, 2019. The government argued in that motion for the first
time that even if a search had occurred the good-faith exception
recognized in Davis "applies here and precludes suppression of the
government's pole camera evidence" due to Bucci having been on the
books at the relevant time. The District Court denied the motion.
The government, relying on 18 U.S.C. § 3731, timely
appealed the District Court's order that granted the defendants'
motions to suppress, as well as the District Court's order that
denied the motion for reconsideration. The government's appeals
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of those orders were consolidated for purposes of briefing and
argument.
A panel of this court reversed the order of the District
Court that granted the defendants' motions to suppress. The panel
concluded that the District Court transgressed both Bucci -- which
the panel concluded remained binding on the "search" point in this
circuit even after Jones and Carpenter -- and Carpenter, given the
limitations on that ruling that the panel determined that the
Supreme Court had placed on it. United States v. Moore-Bush, 963
F.3d 29, 31 (1st Cir. 2020), reh'g en banc granted, vacated, 982
F.3d 50 (1st Cir. 2020).
The opinion concurring in the result agreed that Bucci
was binding on the panel and the District Court under the law-of-
the-circuit doctrine. See id. at 48-49 (Barron, J., concurring in
the result). The opinion concurring in the result expressed doubt,
however, as to whether Bucci had correctly applied the Supreme
Court's Fourth Amendment precedents tracing back to Katz,
especially given the recent guidance that Carpenter had provided.
See id. at 53-56. The concurring opinion thus concluded that "the
proper course for our Court is to use this case to give Bucci fresh
consideration en banc, so that we may determine for ourselves
whether the result that it requires [the panel to reach] is one
the Supreme Court's decisions . . . prohibit." Id. at 58.
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The defendants filed petitions for rehearing en banc,
which were granted, and the panel's ruling reversing the District
Court's order granting the defendants' suppression motions was
vacated. United States v. Moore-Bush, 982 F.3d 50 (1st Cir. 2020).
We consider in what follows both the District Court's order
granting the defendants' motions to suppress, reviewing "findings
of fact for clear error and the application of the law to those
facts de novo," United States v. Crespo-Ríos, 645 F.3d 37, 41 (1st
Cir. 2011) (quoting United States v. Siciliano, 578 F.3d 61, 67
(1st Cir. 2009)); see also United States v. Orth, 873 F.3d 349,
353 (1st Cir. 2017), and the District Court's order denying the
government's motion to reconsider, reviewing for an abuse of
discretion, see United States v. Siciliano, 578 F.3d 61, 72 (1st
Cir. 2009).
II.
The Fourth Amendment provides for "[t]he right of the
people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures." U.S. Const.
amend. IV. That Amendment further provides that a search is
"presumptively unreasonable" in the absence of a warrant supported
by probable cause. See United States v. Karo, 468 U.S. 705, 715
(1984).
The Supreme Court has, as we have indicated, set forth
two tests to assess whether government conduct constitutes a
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"search" within the meaning of the Fourth Amendment. The parties
agree that the first test -- "the common-law trespassory test,"
Jones, 565 U.S. at 409 -- is not relevant here because it applies
only when the government "obtains information by physically
intruding on a constitutionally protected area." Id. at 405, 406
n.3. Our focus, therefore, is on the second test, which is derived
from Katz. Under that test, as explicated in Carpenter, "[w]hen
an individual 'seeks' to preserve something as 'private,' and his
expectation of privacy is 'one' that society is prepared to
recognize as 'reasonable,'" a government action that "contravenes
that expectation" "generally qualifies as a search." Carpenter,
138 S. Ct. at 2213, 2217 (quoting Smith v. Maryland, 442 U.S. 735,
740 (1979)).
Thus, we first must determine whether Moore-Bush and
Moore each manifested an expectation of privacy in what each seeks
to preserve as private -- namely, "the totality of [their]
movements and activities and associations with family members and
visitors in the front [curtilage] of" their home that was visible
to the pole camera during the eight-month-long period that it
recorded. As we will explain, we conclude that the District Court
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supportably found that the defendants did manifest such an
expectation of privacy.8
Having so concluded, we next must determine whether such
an expectation is one that society is prepared to accept as
reasonable. As we will explain, we conclude that the District
Court correctly held that it is.
Because we conclude that the defendants have shown what
they must with respect to the "expectation of privacy" portion of
the Katz inquiry, we then must address whether the government's
"accessing" of the record at issue -- to use Carpenter's
terminology -- "contravened" that expectation. As we will explain,
we conclude that the accessing of that record did.
We emphasize that the government advances no argument to
the en banc court -- nor, for that matter, did it advance any
argument below -- that, even though it had not obtained a warrant
that authorized its use of this surveillance, its use of such
surveillance still comported with the Fourth Amendment because
8 We note neither party disputes that the quantum of
information at issue in this case is inclusive of not only each
defendant's own visible activity in the defendants' front
curtilage but also of what is effectively a live-action log of all
visitors to their home during the eight-month period in which the
pole camera operated. We note, too, that the government does not
dispute that if the defendants are fairly deemed to have a
subjective expectation of privacy in such information that society
is prepared to accept as reasonable, then it is an expectation of
privacy that the Fourth Amendment -- given its protection of
"houses" -- protects, insofar as that expectation is contravened
by the government.
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some quantum of suspicion supported the surveillance and an
exception to the warrant requirement applied. Rather, the
government relies solely on the contention that its use of the
pole camera -- and, implicitly, the accessing of the record created
by it -- was not a "search" because the camera captured only what
was already exposed to public view, such that the government did
not need any level of suspicion whatsoever, let alone a warrant,
to undertake such surveillance and access the record created by
it. Thus, because we conclude that a search did occur, we conclude
-- unlike our colleagues -- that the Fourth Amendment was
violated.9
Nevertheless, as we will explain in the concluding part
of this opinion, we still conclude that the District Court's order
granting the defendants' suppression motions must be reversed.
And, that is because we conclude that the good-faith exception to
the warrant requirement that is set forth in Davis requires that
result, given that Bucci was the law of this circuit at the
relevant time.
We note that although our colleagues contend that either
9
probable cause or reasonable suspicion supported the use of the
pole-camera surveillance at issue, Concur. Op. at 105, they do not
explain why the presence of reasonable suspicion or probable cause
would on its own render the use of pole-camera surveillance of the
kind that was used here constitutional, given that the Fourth
Amendment ordinarily requires there to be both probable cause and
a warrant before law enforcement can conduct a search
constitutionally.
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III.
We start with the "expectation of privacy" portion of
the Katz inquiry. That portion requires us to determine -- at
least arguably -- two distinct things: whether Moore-Bush and
Moore can show that they "exhibited an actual, subjective,
expectation of privacy" in the aggregate of what the pole camera
captured, and whether they can show that "society is prepared to
recognize [that subjective expectation] as objectively
reasonable." United States v. Rheault, 561 F.3d 55, 59 (1st Cir.
2009) (citing Smith, 442 U.S. at 740). We address each component
of this portion of the Katz inquiry in turn.
A.
The District Court found with respect to the subjective
expectation of privacy portion of the Katz inquiry that Moore-Bush
and Moore did show that they had "manifested a subjective
expectation of privacy through the relevant actions that they
took." Moore-Bush, 381 F. Supp. 3d at 143. The District Court
explained that it inferred "from [Moore-Bush and Moore's] choice
of neighborhood and home within it that they did not subjectively
expect to be surreptitiously surveilled with meticulous precision
each and every time they or a visitor came or went from their home"
and that a digital and easily searchable video record of eight
months of those movements would be compiled. Id. at 144.
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The government does not challenge the District Court's
findings regarding the characteristics of the defendants'
neighborhood and home, see id. at 143. The government also does
not contend that the record suggests that the occupants of
120 Hadley Street invited, in any affirmative way, long-term
surveillance of the home by a digital video camera. The government
does not even suggest that the defendants were aware that video
cameras of any kind were trained on the Hadley Street property for
any period of time and yet took no steps to shield the curtilage
of the residence from that form of surveillance. Cf. Shafer v.
City of Boulder, 896 F. Supp. 2d 915, 930 (D. Nev. 2012).
The government focuses solely on what the defendants
failed to do despite their lack of awareness that any digital
surveillance was being conducted: "erect[] fences or plant[]
hedges to obscure the view from the street." The government relies
heavily in doing so on Bucci, which observed that the defendant in
that case had "failed to establish . . . a subjective . . .
expectation of privacy in the front of his home" because there
were "no fences, gates or shrubbery located [out] front . . . that
obstruct[ed] the view of the driveway or the garage from the
street." Bucci, 582 F.3d at 116-17.
Bucci did not grapple, however, with the contention that
is front and center here -- that the claimed expectation of privacy
is only in the totality of what transpired within the area of the
- 24 -
property at issue over the months in question and not in any
discrete occurrences that, one by one, happened to take place there
during that time. Instead, Bucci appeared to treat the defendant's
claimed expectation of privacy in that case as if it were no
different from a defendant's claimed expectation of privacy in a
discrete activity that occurs in the curtilage of a residence and
may be seen from the street by any passerby at the moment of its
occurrence. See id.The government is right that Bucci relied in this part
of its analysis on the Supreme Court's decision in California v.
Ciraolo. See Bucci, 582 F.3d at 117-18. So, we must consider
whether that precedent itself compels us to credit the government's
contention regarding the subjective expectation of privacy portion
of the Katz inquiry even though Bucci does not. But, Ciraolo,
too, is distinguishable from this case.
In Ciraolo, the Supreme Court did point to the fact that
the defendant there had erected a fence in finding that he had
established that he had a subjective expectation in keeping private
what he sought to hide from view -- his backyard agriculture
activity, or, more pointedly, his marijuana plants. Ciraolo, 476
U.S. at 211. The Court did so, moreover, even though such "normal
precautions" against "casual, accidental observation" would have
provided little protection to the defendant from the type of
surveillance that the government used there: photography from a
- 25 -
low-flying plane. Id. at 211-12 (quoting Rawlings v. Kentucky,
448 U.S. 98, 105 (1980)).
Ciraolo thus does suggest, by negative implication, that
because a casual observer could have noticed an unobstructed plot
of marijuana plants by just walking by the defendant's home, a
defendant's failure to erect a fence or hedges to protect such a
plot from being casually observed in that manner would signal a
willingness on the part of that defendant to permit any passerby
to observe it. And, that is so, Ciraolo indicates, even if a mere
passerby happened to have a vantage point -- whether from a utility
truck or a double-decker bus, id. at 211 -- that was high enough
to permit a view of the plot that no fence or hedges would be high
enough to block.
We have not yet encountered, however, the "casual,
accidental observ[er]," id. at 212 -- whether viewing from on the
ground or on high -- who could take in all that occurs in a home's
curtilage over the course of eight months and recall it perfectly
and at a moment's notice. Thus, we see little sense in inferring
that the defendants here lacked, as a subjective matter, their
claimed expectation of privacy simply because they failed to take
measures that would at most protect against casual observation of
the curtilage of their residence when casual observation of the
curtilage -- from whatever vantage -- would in no way undermine
that claimed expectation, given that the expectation inheres in
- 26 -
the aggregate of activity in question.10 The government thus errs
in arguing that Ciraolo shows that the failure of the defendants
in this case to put up a fence or similar barrier around the front
of the Hadley Street home necessarily precludes them from
establishing that they had the subjective expectation of privacy
that they claim.
We do note, moreover, that it is possible that the
inquiry into a defendant's subjective expectation of privacy in
the whole of what transpires over a very long time in the front of
one's home, when each discrete activity in that totality is itself
exposed to public view, is a corollary of whether that claimed
expectation of privacy in the aggregate of what transpires there
10Our colleagues contend that even if no "casual" observer
witnesses and records the whole of what occurs in the curtilage of
a home, a nosy neighbor might. Concur. Op. at 118, 122. Our
colleagues go on to contend, for that reason, that the failure of
Moore-Bush and Moore to take precautions to avoid being seen by
neighbors suggests that they lacked a subjective expectation of
privacy with respect to the aggregate of those movements. Concur.
Op. at 112-13.
Perhaps a nosy neighbor could become familiar with some of
the daily rituals of those who live nearby. And, perhaps -- if
particularly dedicated -- that neighbor could even log those
observations as our colleagues suggest. But, it dramatically
undersells the hypothesized neighbor's distinctive character to
describe that neighbor as merely "nosy," given the unrelenting and
all-encompassing kind of surveillance that is at issue. Thus, we
do not see how the awareness of neighbors -- including even of
those neighbors one might wish would move to a different block --
suffices to undermine the District Court's finding that these
defendants manifested their subjective expectation of privacy in
what they claim to wish to keep from public view.
- 27 -
is objectively reasonable. We can see how the objective
reasonableness of an expectation that such activities are not being
catalogued in a manner that would make the compendium of them
accessible to an observer upon command might bear on whether a
defendant's failure to protect against a casual observer's viewing
each activity one by one supports an inference that the defendant
is in fact, as a subjective matter, willing to permit such an
easily searchable catalogue of the activities in the aggregate to
be compiled. Cf. Hudson v. Palmer, 468 U.S. 517, 525 n.7 (1984)
(characterizing the Katz test as primarily being about the
objective inquiry and stating that "[t]he Court[] [has] refus[ed]
to adopt a test of 'subjective expectation'" because
"constitutional rights are generally not defined by the subjective
intent of those asserting the rights" (quoting Smith, 442 U.S. at740-41 n.5)); Smith, 442 U.S. at 741 n.5 (explaining that
"[s]ituations can be imagined, of course," such as those in which
"an individual's subjective expectations ha[ve] been 'conditioned'
by influences alien to well-recognized Fourth Amendment freedoms,"
"in which Katz['s] two-pronged inquiry would provide an inadequate
index of Fourth Amendment protection" and that in those
"circumstances[,] . . . subjective expectations obviously could
play no meaningful role in ascertaining what the scope of Fourth
Amendment protection was" and instead when "determining whether a
'legitimate expectation of privacy' existed in such cases, a
- 28 -
normative inquiry would be proper"). We can especially see the
sense in so concluding to the extent that combining the subjective
and objective components of the "expectation of privacy" inquiry
would help to avoid the Fourth Amendment being held to mean one
thing for those living in a quiet neighborhood of single-family
homes and another for those living in a neighborhood of apartments
or attached houses.
To that same point, there is no Supreme Court precedent
of which we are aware that clearly indicates that the subjective
and objective inquiries in this context are properly understood to
be wholly distinct. The only cases from the Court to address an
even arguably analogous claimed expectation of privacy are Jones
and Carpenter. And, neither case addresses the subjective
expectation of privacy component of the Katz inquiry, as Jones did
not rely on the Katz test, Jones, 565 U.S. at 407-08, and Carpenter
addressed only the objective component of the "expectation of
privacy" portion of the Katz inquiry, Carpenter, 138 S. Ct. at
2217-19.
But, insofar as an independent inquiry into the
subjective expectation of privacy is required, we conclude, for
reasons that we have explained, the District Court did not err in
finding that the defendants here have made the requisite showing.
And, we emphasize, this conclusion accords with Carpenter, even if
it is not, strictly speaking, compelled by it.
- 29 -
True, Carpenter did not address the subjective
expectation of privacy component of the Katz inquiry. But, we
decline to conclude that, after Carpenter, a court could find in
a case involving the same facts as were involved there that no
search had occurred simply based on the defendant's failure to
have taken countermeasures that at most would have protected his
public movements from being subjected to casual observation.11
Nor, we note, does the government suggest that Carpenter may be
read to permit such an outcome.
B.
We move on, then, to the defendants' contention that
their subjective expectation of privacy in what they seek to shield
from the view of others is also an "expectation . . . that society
is prepared to accept as reasonable." Carpenter, 138 S. Ct. at
2213 (quoting Smith, 442 U.S. at 740). Our focus in undertaking
this portion of the Katz inquiry, we emphasize, is not on whether
these defendants have a reasonable expectation of privacy in each
discrete activity -- considered on its own and at the time that it
occurred -- that was visible to the pole camera over the course of
11 We thus disagree with our colleagues that the defendants
here were required to build a fence or otherwise "take . . . steps
to prevent observation" of "many" but "not all" of the activities
in the front curtilage of their home. To require as much of the
defendants here would be analogous to requiring the defendant in
Carpenter to have manifested a subjective expectation of privacy
by traveling around town in a disguise, and we do not understand
Carpenter to permit that requirement to be imposed.
- 30 -
the many months that it was up and running. The expectation of
privacy that Moore-Bush and Moore each claims inheres solely in
what they characterize as "the totality of [their] movements and
activities and associations with family members and visitors in
the front [curtilage] of [their] home" that was recorded by the
pole camera. In other words, they assert an expectation of privacy
in the whole of the activities in that locale -- taken as a whole
-- that were visible to the pole camera during the lengthy period
of time in question, just as the expectation of privacy that the
defendant in Carpenter -- and the defendant in Jones, for that
matter -- claimed was in an aggregate of the movements taken in
public over a relatively long period of time and not in each of
those movements individually at the moment of its occurrence.
Moreover, Moore-Bush and Moore acknowledge, as they must
-- and as both Bucci and our colleagues emphasize -- that the Court
has made clear that, in general, "[w]hat a person knowingly exposes
to the public . . . is not a subject of Fourth Amendment
protection." Katz, 389 U.S. at 351. They rightly point out,
however, that Katz itself noted -- in a passage from that case
that neither Bucci nor our colleagues invoke -- that "what [a
person] seeks to preserve as private, even in an area accessible
to the public, may be constitutionally protected." Id. The
defendants also rightly emphasize that Carpenter invoked just that
passage in Katz both to explain that "[a] person does not surrender
- 31 -
all Fourth Amendment protection by venturing into the public
sphere," Carpenter, 138 S. Ct. at 2217, and to support the
conclusion that "individuals have a reasonable expectation of
privacy in the whole of their physical movements," even if those
movements take place in public view, id.Thus, a critical question here -- though an affirmative
answer to it is not itself dispositive of whether a search occurred
-- concerns whether Carpenter's reasons for concluding that the
claimed expectation of privacy in the whole of the movements that
was at issue in that case was objectively reasonable justify our
reaching the same conclusion with respect to the similar, but still
distinct, claimed expectation of privacy that we confront in this
case. As we will next explain, we conclude that those reasons do.
1.
Carpenter acknowledged that a person generally "has no
reasonable expectation of privacy in his movements from one place
to another" because such movements are "voluntarily conveyed to
anyone who want[s] to look." Id. at 2215 (quoting United States
v. Knotts, 460 U.S. 276, 281 (1983)). But, the Court then
explained, this general point does not dictate whether society is
prepared to accept as reasonable a claimed expectation of privacy
in the whole of "every single movement of an individual[] . . .
for a very long period." Id. at 2217 (quoting Jones, 565 U.S. at
430 (Alito, J., concurring in the judgment)). In fact, Carpenter
- 32 -
explained, based on the concurring opinions in Jones, "[a] majority
of this Court has already recognized that individuals have a
reasonable expectation in the whole of their public movements."
Id. (citing Jones, 565 U.S. at 430 (Alito, J., concurring in the
judgment joined by three Justices) and Jones, 565 U.S. at 415(Sotomayor, J., concurring)).
Carpenter elaborated that its recognition of the
reasonableness of this expectation of privacy reflected the
limited state of surveillance technology for most of our history.
"Prior to the digital age," the Court observed, "law enforcement
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. (emphasis added) (quoting
Jones, 565 U.S. at 429 (Alito, J., concurring in the judgment)).
Carpenter noted in this regard that it was almost inconceivable
until relatively recently that the government would, other than at
most rarely, have the resources to "tail[] [a suspect] every moment
of every day for five years," which was a reference to the amount
of time that the wireless carrier for the defendant in Carpenter
stored the CSLI that it collected from its customers. Id. at 2218.
Thus, Carpenter concluded, expressly drawing on the
similar reasoning of the concurring Justices in Jones, "society's
expectation has been that law enforcement agents and others would
not -- and, indeed, in the main, simply could not -- secretly
- 33 -
monitor and catalogue every single movement of an individual's car
for a very long period." Id. at 2217 (quoting Jones, 565 U.S. at
430 (Alito, J., concurring in the judgment)). That being so, the
Court concluded in Carpenter, it was reasonable for a person to
expect that no such tracking was occurring as he moved about in
public over a lengthy period and thus to expect that those public
movements were, taken as a whole, private in consequence of the
practical anonymity with respect to the whole of them that follows
from the reality that virtually no one has a feasible means of
piercing it. Id.
2.
In arguing that neither Carpenter nor Jones supports the
defendants here with respect to this portion of the Katz inquiry,
the government contends that neither of those two precedents is
analogous to this case because each addresses a claimed expectation
of privacy in the whole of a person's physical movements over a
long stretch of time while that person is moving about from one
place to another. See id. at 2214; Jones, 565 U.S. at 402. By
contrast, the government emphasizes, as do our colleagues, Concur.
Op. at 114, that the claimed expectation of privacy here is only
in what occurred over a lengthy stretch of time at a single locale
-- the defendants' Hadley Street home. The government contends
that while society may be prepared to accept as reasonable one's
expectation of privacy in the whole of one's public movements from
- 34 -
place to place over a substantial stretch of time, society is not
prepared to accept as reasonable one's expectation of privacy in
the whole of what one exposes to public view during such a period
in a single place. We cannot agree -- at least given the place
that we are talking about here.
a.
The government attempts to support its contention about
what society is prepared to accept as reasonable in part by
pointing to documented instances in which teams of law enforcement
officers have diligently watched a single place of interest for a
period of time that has ranged from three weeks12 to three months.13
That recent history fails to show, though, that one reasonably
would expect such lengthy stakeouts of the home to be undertaken
more than "rarely." Carpenter, 138 S. Ct. at 2217 (quoting Jones,
565 U.S. at 429 (Alito, J., concurring in the judgment)). And,
under Carpenter, evidence of such infrequent surveillance does
nothing to undermine the reasonableness of a claimed expectation
of privacy in the whole of what transpires in a publicly visible
manner over a sustained expanse of time in a single place, at least
insofar as what does transpire there over that expanse of time
12See, e.g., United States v. Gramlich, 551 F.2d 1359, 1362
(5th Cir. 1977) (surveilling the property for three weeks).
13See, e.g., United States v. Jimenez, 5 F.3d 1494, No. 92-
1997, 1993 WL 391395, at *1 (5th Cir. Sept. 21, 1993) (unpublished
table decision) (surveilling the property for three months).
- 35 -
reveals the "privacies of life" when considered in the aggregate.
Id. (quoting Riley v. California, 573 U.S. 373, 403 (2014)).
Consistent with this understanding, Carpenter concluded
that one reasonably leaves one's home without expecting a perfect
form of surveillance to be conducted over a long period of time,
even though "tailing" for non-trivial periods of time has always
been possible. See id. at 2218; see also Jones, 565 U.S. at 416(Sotomayor, J., concurring) (explaining that the Court should "not
regard as dispositive the fact that the government might obtain
the fruits of GPS monitoring through lawful conventional
surveillances techniques"). That is so, Carpenter explained,
because the time, labor, and expense of carrying out such
surveillance in a pre-digital age rendered it at most a rare
practice, such that one could not reasonably be expected by our
society (given that it is a free one) to govern one's actions in
traveling about town as if a tail were always already underway.
138 S. Ct. at 2217; cf. United States v. Tuggle, 4 F.4th 505, 526
(7th Cir. 2021), cert. denied, 142 S. Ct. 1107 (2022) ("We . . .
close the door on the notion that surveillance accomplished through
technological means is constitutional simply because the
government could theoretically accomplish the same surveillance
-- no matter how laborious -- through some nontechnological
means.").
- 36 -
True, no tailing need be conducted here to capture what
these defendants seek to keep private; a single-point stakeout
would suffice. But, the government provides us with no reason to
conclude that "[p]rior to the digital age," Carpenter, 138 S. Ct.
at 2215, it would have been appreciably less difficult to conduct
a stakeout that could effectively and perfectly capture all that
visibly occurs in front of a person's home over the course of
months -- and in a manner that makes all of the information
collected readily retrievable at a moment's notice -- than it would
have been to conduct roving surveillance of perfect precision of
all of one's movements outside the home over the course of a week
(using Carpenter's own measure) or a month (using the measure of
the majority of the Justices in Jones).14 Indeed, we must take
account of not merely the practical limits of manpower and expense
that -- in the pre-digital era -- would have made such lengthy,
24/7 surveillance of anyone in any place a most rare occurrence.
See Tuggle, 4 F.4th at 526 ("To assume that the government would,
or even could, allocate thousands of hours of labor and thousands
of dollars to station agents atop three telephone poles to
constantly monitor [the defendant]'s home for eighteen months
defies the reasonable limits of human nature and finite
We recognize that Carpenter did also refer to the fact that
14
wireless carriers retain CSLI for five years. But, we do not see
any material difference for purposes of the inquiry that Katz
requires between that period and the eight-month period before us.
- 37 -
resources."). We also must take account of the practical limits
in that earlier era of conducting such an enduring, undetected
watch of a home.
Accordingly, we conclude that the same real-world
constraints that contributed to the sense of privacy that the Court
has recognized one reasonably had for most of our nation's history
in the totality of the picture -- though not in each brushstroke
-- painted by the whole of one's movements while traveling in
public also contributed to that same sense in the full portrait of
all that visibly occurs for many months in the curtilage of one's
own home. Cf. Jones, 565 U.S. at 415-16 (Sotomayor, J.,
concurring) ("[B]ecause GPS monitoring is cheap in comparison to
conventional surveillance techniques, . . . it evades the ordinary
checks that constrain abusive law enforcement practices: 'limited
police resources and community hostility.'" (quoting Illinois v.
Lidster, 540 U.S. 419, 426 (2004))); id. at 429 (Alito, J.,
concurring in the judgment) ("Devices like the [GPS device] . . .
make long-term monitoring relatively easy and cheap."). This
understanding, we further note, comports with the protection
afforded by the common law in response to developments in
surveillance technology through the tort of intrusion upon
seclusion. See, e.g., Nader v. Gen. Motors Corp., 255 N.E.2d 765,
771 (N.Y. 1970) (explaining that the mere fact that something
occurs in public does not necessarily indicate a willingness to
- 38 -
reveal that action to others and distinguishing between what could
be seen by a "casual observer" and what could be seen by a person
conducting "overzealous" surveillance); cf. Restatement (Second)
of Torts § 652B (1977) (explaining that the tort of intrusion upon
seclusion protects against intrusion "upon the solitude or
seclusion of another or his private affairs or concerns"); Samuel
D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L.
Rev. 193, 195, 206 (1890) (arguing that "existing law affords a
principle which may be invoked to protect the privacy of the
individual from invasion by" then-"[r]ecent innovations" such as
a "modern device for recording or reproducing scenes or sounds").
b.
The government also suggests that Carpenter and Jones,
with respect to this portion of the Katz inquiry, may be
distinguished from this case on the ground that the depth of
information revealed by one's movements in a single place over a
long period pales in comparison to the depth of information
revealed over such an expansive period by "a person's movements
from one location to another." But, although what the defendants
seek to keep private may have occurred in only one place, it did
not occur in just any place.
As Moore-Bush and Moore point out, "[a]t the very core'
of the Fourth Amendment 'stands the right of man to retreat into
his own home and there be free from governmental intrusion.'"
- 39 -
Kyllo v. United States, 533 U.S. 27, 31 (2001) (quoting Silverman
v. United States, 365 U.S. 505, 511 (1961)). The curtilage is
"intimately linked to the home, both physically and
psychologically," which matters precisely because the home is
"where privacy expectations are most heightened." Ciraolo, 476
U.S. at 213. The importance of the home to the Fourth Amendment
is reflected in the text of the Amendment itself, which guarantees
the "right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,"
U.S. Const. amend. IV (emphasis added), and the curtilage of a
residence has long been understood to "harbor[] the 'intimate
activity associated with the sanctity of a man's home and the
privacies of life,'" United States v. Dunn, 480 U.S. 294, 300
(1987) (quoting Oliver v. United States, 466 U.S. 170, 180
(1984)).15
15Our colleagues suggest that the home only carries special
importance under the Fourth Amendment when courts apply the common-
law trespass test to determine if a search occurred. Concur. Op.
at 120-21. But, in Kyllo v. United States, 533 U.S. 27 (2001),
the Court held -- relying on the Katz test -- that the use of a
device that drew upon heat radiating from a home constituted a
search, even though no physical trespass occurred, in part because
of what the use of the device revealed about what was occurring
inside the home and because "the interior of homes . . . [is] the
prototypical . . . area of protected privacy . . . with roots deep
in the common law," id. at 34. In so concluding, the Court did
the very thing our colleagues accuse us of doing -- "hybridiz[ing]
two threads of Fourth Amendment doctrine," the Katz reasonable
expectation of privacy test and the common-law trespass test.
Concur. Op. at 120-21. We thus see no reason why we may not take
- 40 -
Not surprisingly, then, the government concedes that the
whole of what was visible to the pole camera here, precisely
because of where the camera was pointed, reveals "information about
a person's life, including, potentially, 'familial, political,
professional, religious, and sexual associations.'" See
Carpenter, 138 S. Ct. at 2217. And, while it is true that one has
no reasonable expectation of privacy in the discrete moments of
intimacy that may occur in the front of one's home -- from a
parting kiss to a teary reunion to those moments most likely to
cause shame -- because of what a passerby may see through casual
observation, it does not follow that the same is true with respect
to an aggregation of those moments over many months.
No casual observer who is merely passing by can observe
(let alone instantly recall and present for others to observe) the
aggregate of the months of moments between relatives, spouses,
partners, and friends that uniquely occur in front of one's home.
Thus, we do not see why the rarity (at least in the pre-digital
world) of sustained surveillance and the "frailties of
recollection," id. at 2218, cannot combine to give one a reasonable
sense of security that such intimate moments -- as a whole -- will
be lost to time in the same way that Carpenter recognized one can
account of the special status that the home has under the Fourth
Amendment in determining whether the defendants here had a
reasonable expectation of privacy in the whole of the activities
that occurred in the curtilage of their home.
- 41 -
have that one's less intimate movements from place to place beyond
the home will be, see id. at 2217 ("[S]ociety's expectation [is]
that law enforcement agents and others would not . . . secretly
monitor and catalogue every single movement of an individual's car
for a very long period." (quoting Jones, 565 U.S. 430 (Alito, J.,
concurring in the judgment))). That being so, it follows that the
sum total of all visible activities that take place in a location
that by its nature is "associated with the sanctity of a man's
home and the privacies of life," Ciraolo, 476 U.S. at 212 (quoting
Oliver, 466 U.S. at 180), can be even more revealing than the sum
total of one's movements while out and about, given the nature of
what transpires in front of the home.
Moreover, the exposure of the aggregate of all visible
activities occurring over a substantial period in front of one's
home may disclose -- by revealing patterns of movements and visits
over time -- what the exposure of each discrete activity in and of
itself cannot. See Commonwealth v. Mora, 150 N.E.3d 297, 311
(Mass. 2020) ("Prolonged and targeted video surveillance of a
home . . . reveals how a person looks and behaves, with whom the
residents of the home meet, and how they interact with others.").
True, a nosy neighbor, as our colleagues emphasize, Concur. Op. at
116-18, 122, could also observe the patterns of the goings-on in
front of a nearby home over a prolonged period. But, again it is
worth emphasizing, as we did in our discussion of the defendants'
- 42 -
subjective expectation of privacy, that it is the rarest of nosy
neighbors -- if any there be -- who would be able to observe all
the visible activity in the curtilage of the home across the
street, including the license plate of every car that stopped by,
the face of every visitor, and any other activity that occurred at
all times of the day for a period of eight months. After all, the
claimed expectation of privacy here is not in a discrete activity
or even discrete pattern of activities -- it is in the whole of
the movements, visible to the pole camera, that occur in the
curtilage of a home.16
16 Our colleagues suggest that the nosy neighbor could augment
his observational abilities by recording the goings on with a video
camera. Concur. Op. at 122. But, courts have long found such
video recording of neighbors to be patently unreasonable -- so
much so that such activity can be tortious. See, e.g., Wolfson v.
Lewis, 924 F. Supp. 1413 (E.D. Pa. 1996) (explaining that the
nonstop "videotaping and recording" of the plaintiffs' home made
them "prisoners" in their own home and amounted to "hounding" that
constituted an "invasion of privacy" sufficient to support finding
that the filming was a tort); Gianoli v. Pfleiderer, 563 N.W.2d
562, 568 (Wis. App. 1997) (finding that near constant surveillance
of the plaintiffs' residence constituted "extreme and outrageous
conduct" giving rise to the tort of intrusion upon seclusion);
Jones v. Hirschberger, No. B135112, 2002 WL 853858 (Cal App. May
6, 2002) (finding that a trier of fact could conclude that
neighbors' videotaping of the plaintiffs' backyard was tortious);
Mangelluzzi v. Morley, 40 N.E.3d 588 (Ohio Ct. App. 2015) (same);
see also Polay v. McMahon, 10 N.E.3d 1122, 1127 (Mass. 2014)
("[E]ven where an individual's conduct is observable by the public,
the individual still may possess a reasonable expectation of
privacy against the use of electronic surveillance that monitors
and records such conduct for a continuous and extended duration.").
To the extent that our colleagues suggest that a person cannot
have an objective expectation of privacy in the whole of the
activities that occur in the front curtilage of the person's home
- 43 -
Thus, for this reason, too, the claimed expectation of
privacy here is not fairly characterized as inhering in a mere
"sliver" of a person's publicly visible life, Tuggle, 4 F.4th at
524, any more than the sum total of one's movements beyond the
home may be deemed to be. Indeed, it is not evident that our
public movements from place to place could reveal that the place
where we live is the site where a disfavored political group is
holding weekly meetings or where a cleric is holding a worship
service. But, that type of information is at risk of being
disclosed when the "aggregate" of our publicly visible activity
consists of all that transpires over months in the front curtilage
of our home.
3.
The government does nonetheless insist that pre-
Carpenter rulings -- none of which Carpenter purported to overrule,
see Carpenter, 138 S. Ct. at 2220 ("Our decision today is a narrow
one. We do not express a view on matters not before us.") --
require the conclusion that there is no reasonable expectation of
because "many of those movements, even if not all, can and will be
observed by the same people," Concur. Op. at 119, we do not see
how that assertion can be squared with Carpenter itself. A
person's movements in public may be observed by others, and the
same person may even observe many of them. But, the fact that
others may have a window into some -- but not all -- of a person's
movements in public does not, as Carpenter explained, render a
person's expectation of privacy in the whole of their movements in
public objectively unreasonable.
- 44 -
privacy in what the defendants claim. Once again, we are not
persuaded.
The government points here, for example, to Ciraolo, in
which the Court rejected the defendant's argument that "because
his yard was in the curtilage of his home, no government aerial
observation [was] permissible under the Fourth Amendment." 476
U.S. at 212. But, Ciraolo did not dispute that the "home is, for
most purposes, a place where he expects privacy." Id. at 215
(quoting Katz, 389 U.S. at 361 (Harlan, J., concurring)). Rather,
it explained that the owner of the curtilage was reasonably on
notice of the possible exposure to the "casual, accidental
observ[er]" of what was sought to be kept private there --
especially "[i]n an age where private and commercial flight in
public airways is routine." Id. at 212, 215; see also id. at 213
("The 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." (emphasis added)).
Ciraolo thus did not in any way suggest that the owner was
similarly on notice of the possible exposure of all that was
visible in the curtilage of the home over a substantial period --
recorded in a perfect visual compendium that is both endlessly re-
playable and easily sifted through for the telling detail.
The same is true of Florida v. Riley, 488 U.S. 445(1989), which concerned an officer who "circled twice over
- 45 -
respondent's property in a helicopter" and used his "naked eye" to
look through a greenhouse to discover illicit substances. Id. at
448 (plurality opinion). There, in determining that no Fourth
Amendment search occurred, the Court observed merely that "[a]s a
general proposition, the police may see what may be seen 'from a
public vantage point where [they have] a right to be.'" Id. at
449 (emphasis added and second alteration in original) (quoting
Ciraolo, 476 U.S. at 213); see also id. at 451 ("Any member of the
public could legally have been flying over [the defendant]'s
property in a helicopter . . . and could have observed [his]
greenhouse."). Thus, again, the Court did not suggest that the
same conclusion would follow if the question concerned one's
expectation of privacy in all that visibly occurred in one's front
curtilage over a long period of time.
The government also points us to the Court's pre-Jones
precedent, United States v. Knotts, 460 U.S. 276 (1983), which
concerned the use of an electronic beeper to monitor the movement
of a car on a public roadway. The Court unanimously held in that
case that the electronic "monitoring of [a] beeper" to track a
vehicle as it traveled from a store in Minnesota to a cabin in
Wisconsin "was [not] a 'search' . . . within the contemplation of
the Fourth Amendment," id. at 279, 285, because "[a] person
traveling in an automobile on public thoroughfares has no
reasonable expectation of privacy in his movements from one place
- 46 -
to another," id. at 281. But, Knotts expressly cautioned that the
Court was not "determin[ing] whether" technological advances that
enabled longer-term tracking of those movements would similarly be
permissible: If "twenty-four hour surveillance of any citizen of
this country will be possible, without judicial knowledge or
supervision," "there will be time enough then to determine whether
different constitutional principles may be applicable." Id. at
283-84. So, Knotts, too, fails to support the government's
contention.
Finally, the government points to Kyllo. There, the
Court explained that, since the advent of the Katz test, it had
yet to call into question the "lawfulness of warrantless visual
surveillance of a home," Kyllo, 533 U.S. at 32, noted that
traditionally "our Fourth Amendment jurisprudence was tied to
common-law trespass," id. at 31, and pointed out that, under that
trespass-based test, "[v]isual surveillance was unquestionably
lawful because 'the eye cannot by the laws of England be guilty of
a trespass,'" id. at 31-32 (quoting Boyd, 116 U.S. at 628)). But,
while the government argues that Kyllo reflects a determination
that all "warrantless visual surveillance of a home" is lawful,
id. at 32, the Court in the passages quoted above was explaining
only that it had yet to confront a form of "visual surveillance"
that was a search under the Fourth Amendment, id. at 32, while
- 47 -
appearing to contemplate that there may be a need for future
"refine[ments]" to the Katz test down the road, id. at 34.
Nor did Kyllo have reason to address long-term
electronic visual surveillance of a home's curtilage. Its focus
was on the capacity of technology to enhance visual surveillance
in the short term: a policeman in that case had used a thermal-
imaging device for "a few minutes" from outside the home to
determine the heat levels within the defendant's home. Id. at 30.
In fact, when discussing the lack of judicial questioning of the
constitutional propriety of "warrantless visual surveillance of a
home," id. at 32, Kyllo referred only to Ciraolo, which, as we
have seen, involved only short-term police surveillance of a home
(which there was unenhanced by digital technology), and Dow
Chemical Co. v. United States, 476 U.S. 227 (1986), which also
concerned only short-term observation of a "commercial property,"
id. at 237; see also id. at 237-38, 238 n.5 (holding that no search
occurred when government regulators engaged in one days' worth of
aerial surveillance "of a 2,000-acre outdoor manufacturing
facility" using camera technology by which "human vision [wa]s
enhanced somewhat" although not to the point that "any identifiable
human faces or secret documents [were] captured in such a fashion
as to implicate more serious privacy concerns").
Moreover, the subject of the surveillance in Kyllo --
"heat radiating from the external surface of the house," 533 U.S.
- 48 -
at 35 -- was itself exposed to public "view" in a sense. Indeed,
that was how a thermal imaging device operating outside the home
could enable such heat to be "seen." But, that fact did not
preclude the Court from concluding in Kyllo that a resident of a
heat-emitting home has a reasonable expectation of privacy in the
record of the thermal radiation -- at least when the source of the
heat is a home. See id. at 34. Kyllo's holding thus in some
respects lends support to -- though we do not suggest that it
requires -- the conclusion that a person can have a reasonable
expectation of privacy in what visibly occurs in the curtilage of
his home even though it is exposed to the public.
In sum, none of the pre-Carpenter decisions of the Court
that the government relies on rejected claims to privacy in the
aggregate of the activities that occur in front of one's home over
a long period of time. Nor did any of those precedents purport to
suggest that one reasonably expects to be subjected to the kind of
intensive, long-term surveillance that could expose to a member of
the observing public the whole of what visibly transpires in the
front of one's home over many months in any practically likely
scenario.17 Accordingly, we reject the government's contention
17The remaining Supreme Court cases cited by the government
to support its contention that "law enforcement may observe what
a person exposes to public view" are similarly inapposite. These
cases all involve discrete incidents in which a person revealed
information to the public rather than the compendium of activity
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that the Supreme Court's pre-Carpenter caselaw requires us to find
that the defendants here assert no objectively reasonable
expectation of privacy.
In so doing, we part ways with our colleagues who,
persuaded by the government's canvassing of the pre-Carpenter
caselaw, would conclude that there is no reasonable expectation of
privacy in what the defendants here seek to shield simply because
each discrete activity that took place in the front curtilage of
the Hadley Street home was exposed to public view. It is worth
emphasizing, though, before moving to the next part of the
analysis, how sweeping a conclusion that appears to be.
By seeming to hold that a person can have no reasonable
expectation of privacy in the whole of the activities in the front
curtilage of a home simply because each activity is exposed to
public view, our colleagues appear to be willing to close the door
to a Fourth Amendment claim that could stem from the government
accessing a database containing continuous video footage of every
home in a neighborhood, or for that matter, in the United States
as a whole. In light of the Supreme Court's warning that "as
'[s]ubtler and more far-reaching means of invading privacy have
become available to the [g]overnment,'" courts are "obligated
at issue here. See, e.g., California v. Greenwood, 486 U.S. 35,
37, 41 (1988); New York v. Class, 475 U.S. 106, 107, 114 (1986);
United States v. Dionisio, 410 U.S. 1, 3, 14 (1973); United States
v. Mara, 410 U.S. 19, 21 (1973).
- 50 -
. . . to ensure that the 'progress of science' does not erode
Fourth Amendment protections," Carpenter, 138 U.S. at 2220
(quoting Olmstead v. United States, 277 U.S. 438, 473-74 (1928)
(Brandeis, J., dissenting)), we are not as willing as our
colleagues to preclude categorically such Fourth Amendment claims.
IV.
Our conclusions to this point do not, however, suffice
to support the conclusion that the surveillance at issue
constituted a search. We still must address whether the government
"contravene[d]" the objectively reasonable expectation of privacy
that the defendants possessed, such that the government engaged in
a search by accessing a record of that surveillance. Carpenter,
138 S. Ct. at 2217. The portion of the Katz inquiry that concerns
what contravenes a reasonable expectation of privacy is a necessary
one for us to undertake because "[t]he obtaining of information is
not alone a search unless it is achieved by . . . a trespass or
invasion of privacy." Jones, 565 U.S. at 408 n.5 (emphasis added).
In opposing the defendants' motions to suppress in the
District Court, the government did not distinguish between the
portions of the Katz inquiry that concern the expectation of
privacy and the portions that concern contravention. It was only
in the motion to reconsider that the government filed after the
District Court's ruling finding that a search had occurred that
the government developed an argument that focused on the means of
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the surveillance rather than the public exposure of what was
subject to that surveillance. The government contended in that
motion that "[t]here was no unique or new technology used in the
investigation that implicated the concerns of Carpenter,"
(capitalization altered), because the surveillance at issue merely
involved the use of a digital camera. Then, both in its briefing
to the panel on appeal and in its briefing to our full court in
connection with the rehearing en banc, the government augmented
that contention by emphasizing other attributes of the means of
surveillance to support the contention that the defendants could
not satisfy the contravention portion of the Katz test.
In addressing the assertions about contravention that
the government now makes, we must keep in mind a point related to
the one that we made in connection with our discussion of the
antecedent portions of the Katz test -- that the means of
surveillance that the government used here did not permit merely
the observation from afar of the curtilage of the Hadley Street
residence. Nor did those means involve merely the use of a digital
camera such that they permitted what transpired there simply to be
recorded digitally. Rather, those means involved the long term,
remote use of a digital video camera affixed to a utility pole and
thus permitted the government to acquire an instantly searchable,
perfectly accurate, and thus irrefutable digital compendium of the
whole of what visibly occurred over a period of the government's
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choosing (and thus seemingly without limit as to duration) that
ended up lasting eight months. Moreover, those means enabled the
government to access that record for a criminal investigatory
purpose in a manner that was not only cheap and remarkably
efficient but also impossible for the target of the surveillance
to evade through precautions that one may be expected to take in
response to the possibility of "casual, accidental observation,"
Ciraolo, 476 U.S. at 212.
Notably, the government makes no contention otherwise in
arguing that, even still, this means of surveillance did not
contravene the defendants' claimed expectation of privacy in the
aggregate of what transpired in the curtilage of the Hadley Street
residence that was visible to the camera over the course of many
months or, at least, did not do so in any way that would render
this means of surveillance a search. And, we note, the government
presses for us to credit this means-of-surveillance-based ground
for ruling that no search occurred even if we were to accept what
the government vigorously disputes: that the defendants' claimed
expectation of privacy in that aggregate is one that society is
prepared to accept as reasonable. We decline to do so.
A.
To get our bearings, it helps to start our analysis of
the "contravention" portion of the inquiry by reviewing what
Carpenter had to say about why "the [g]overnment's acquisition of
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the cell-site records" contravened the defendant's reasonable
expectation in the whole of his movements in that case and
therefore constituted a search. Carpenter, 138 S. Ct. at 2223.
Carpenter, after all, is the only case in which the Court has
addressed the contravention portion of the Katz inquiry in
connection with a contention that the long-term, electronic
surveillance of an individual's publicly visible movements is not
a search. It is thus a singularly instructive guide to us here,
despite the distinct factual context in which the issue arose
there.
It is also worth noting in this regard that the Court,
in considering whether the surveillance at issue in Carpenter
"contravened" the defendant's reasonable expectation of privacy,
conducted that inquiry at the point at which the government
"accessed" the CSLI. Carpenter, 138 S. Ct. at 2219. Thus, the
Court did not consider whether or how the government ultimately
utilized the seven days' worth of CSLI that it "accessed." Id. at
2217 n.3.
Carpenter recognized that it was confronting a "new
phenomenon" brought on by the advent of once unimagined
surveillance technology. Id. at 2216. It recognized, too, that
it needed to "tread carefully . . . to ensure that [it] d[id] not
'embarrass the future.'" Id. at 2220 (quoting Nw. Airlines,
Inc. v. Minnesota, 322 U.S. 292, 300 (1944)). But, it also noted
- 54 -
that, as we have already mentioned, it was "obligated -- as
'[s]ubtler and more far-reaching means of invading privacy have
become available to the [g]overnment' -- to ensure that the
'progress of science' does not erode Fourth Amendment
protections." Id. at 2223 (first alteration in original) (quoting
Olmstead, 277 U.S. at 473-74 (Brandeis, J., dissenting)).
Applying those principles, Carpenter concluded that "the
progress of science has afforded law enforcement a powerful new
tool to carry out its important responsibilities [but which also]
risk[s] [g]overnment encroachment of the sort the Framers, 'after
consulting the lessons of history,' drafted the Fourth Amendment
to prevent." Id. (quoting Di Re, 332 U.S. at 595). And, in coming
to that conclusion, we note, the Court carefully examined the
precise new surveillance tool before it in combination with the
way in which that tool was employed in the case at hand, "tak[ing]
account of more sophisticated" versions of that tool "already in
use or in development." Id. at 2218 (quoting Kyllo, 533 U.S. at
36). Moreover, the Court pointed to various aspects of that tool's
features that, at least in combination, demonstrated that the tool
posed a concerning risk to the constitutional balance, at least
when used to acquire the quantum of information covering the
expanse of time that was there at issue.
Carpenter emphasized, in this connection, "the deeply
revealing nature of CSLI." Id. at 2223. Here, the Court drew
- 55 -
upon its own explanation of why the movements tracked by the CSLI
that the government accessed from the defendant's wireless carrier
over the period in question revealed in the aggregate the
"privacies of life." Id. at 2217 (quoting Riley, 573 U.S. at 403).
The Court pointed out in this regard that the CSLI that the
government accessed provided an "intimate window into a person's
life," id. at 2217, due to the "depth, breadth, and comprehensive
reach" of such CSLI, id. at 2223. As the Court explained,
"[m]apping a cell phone's location over the course of [several
months] provides [the government with] an all-encompassing record
of the holder's whereabouts" that is akin to "achiev[ing] near
perfect surveillance, as if [the government] had attached an ankle
monitor to the phone's user." Id. at 2217-18 (quoting Jones, 565
U.S. at 415 (Sotomayor, J., concurring)).
Notably, the Court also drew support for this aspect of
its analysis from the reasoning of the five concurring Justices in
Jones, as they had emphasized the comprehensive nature of the
information that the GPS device at issue there had permitted the
government to acquire in finding that the government's decision to
use that device to collect twenty-eight days' worth of GPS data
regarding the defendant "impinge[d] on" the defendant's reasonable
expectation of privacy. id. (quoting Jones, 565 U.S. at 430(Alito, J., concurring in the judgment)); see also Jones, 565 U.S.
at 415 (Sotomayor, J., concurring) ("GPS monitoring generates a
- 56 -
precise, comprehensive record of a person's public movements that
reflects a wealth of detail about [a person's] . . .
associations. . . . The government can store such records and
efficiently mine them for information years into the future.");
Jones, 565 U.S. at 428-29 (Alito, J., concurring in the judgment
joined by three Justices) (describing various new technologies
that engage in "constant monitoring" and are thus able to track a
person's "daily movements"). Indeed, the Court in Carpenter
pointed out that the tracking effectuated by the collection of the
CSLI "partakes of many of the qualities of the GPS monitoring we
considered in Jones," as the Court explained that "cell phone
location information," too, is "detailed" and "encyclopedic."
Carpenter, 138 S. Ct. at 2216.
Carpenter emphasized, as well, the relative ease with
which this new surveillance tool afforded the government access to
an intimate and comprehensive window into a target's life. By
requesting CSLI from a wireless carrier, the Court explained, "the
[g]overnment can access [a] deep repository of historical location
information at practically no expense." Id. at 2218. The Court
further noted that the "repository" of CSLI, once accessed by the
government from a wireless carrier, is not "limited by . . . the
frailties of recollection" and that, as a result, it "gives police
access to a category of information otherwise unknowable." Id.In addition, the Court noted that CSLI is "effortlessly compiled."
- 57 -
Id. at 2216. And, in doing so, the Court once again mirrored the
language from the Jones concurrences. Id. at 2218.
Finally, in determining that the government's accessing
of the seven days' worth of CSLI from the defendant's wireless
carrier contravened the defendant's reasonable expectation of
privacy and so constituted a search, Carpenter emphasized a feature
of that CSLI that arguably differentiated it from the GPS-tracker
information that the government had acquired through its own real-
time tracking of the defendant's movements in Jones: the
information had a "retrospective quality." Id. The Court pointed
out that "because location information is continually logged for
all of the 400 million devices in the United States -- not just
those belonging to persons who might happen to come under
investigation -- this newfound tracking capacity runs against
everyone." Id. Thus, the Court noted, "[w]hoever the suspect
turns out to be, he has effectively been tailed every moment of
every day for five years" with no reasonable ability to take
countermeasures to avoid that surveillance as a "cell phone [is]
'almost a feature of human anatomy.'" Id. at 2218, 2219 (quoting
Riley, 573 U.S. at 386). In other words, this surveillance
technology was especially threatening to the reasonable
expectation of privacy in the whole of one's movements in public
because of "the inescapable and automatic nature of its
collection." Id. at 2217.
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Consistent with the Court's stated concern about
ensuring that new technological enhancements to law enforcement's
surveillance capacity do not "erode" the basic protection that the
Fourth Amendment guarantees, the Court also made a point of
comparing these features of this means of pursuing a criminal
investigation with less souped-up ones. Id. at 2223. In this
regard, the Court, again mirroring the language of the five
concurring Justices in Jones, explained that the accessing of
historical CSLI by the government is "remarkably easy, cheap, and
efficient compared to traditional investigative tools" because the
government by doing so acquires a capacity to easily mine "the
exhaustive chronicle of location information" that is not
comparable to the capacity it has when relying on "traditional,
investigative tools." Id. at 2217-18 ("[L]ike GPS monitoring,
cell phone tracking is remarkably easy, cheap, and efficient
compared to traditional investigative tools."); see also Jones,
565 U.S. at 415-16 (Sotomayor, J., concurring) ("[B]ecause GPS
monitoring is cheap in comparison to conventional surveillance
techniques, . . . it evades the ordinary checks that constrain
abusive law enforcement practices."); Jones, 565 U.S. at 429(Alito, J., concurring in the judgment) ("Devices like the [GPS
device] . . . make long-term monitoring relatively easy and
cheap.").
- 59 -
The Court was careful, moreover, to caveat that the
concerns presented by unconventional, aggregative electronic
surveillance -- like the accessing of the historical CSLI at issue
in Carpenter -- did not apply to "conventional surveillance
techniques and tools, such as security cameras." Id. at 2220.
And, the Court similarly explained that it was withholding judgment
about how "business records," other than CSLI, "that might
incidentally reveal location information" fit into the
conventional-discrete/unconventional-aggregative dichotomy that
it described. Id.18
B.
There is no doubt, as our colleagues point out, that the
factual context presented here differs in certain respects from
the one that the Court confronted in Carpenter and that it does so
in ways that have some bearing on the contravention portion of the
Katz inquiry. Most notably, the Court had to address there whether
the so-called third-party doctrine provided a reason to conclude
that the government's accessing of the seven days' worth of the
defendant's historical CSLI did not contravene the expectation of
privacy that the Court had recognized that the defendant had in
18It is possible that it is not useful to disentangle the
"contravention" and the "objective" portions of the "expectation
of privacy" component of the Katz inquiry from one another. But,
we read Carpenter to suggest that it is useful to consider the
contravention portion of the inquiry separately, and so do so. As
far as we can tell, nothing of substance turns on that choice here.
- 60 -
what that tranche of CSLI contained. See id. at 2216-17. After
all, in Carpenter, the government had accessed information that it
had not created through its own surveillance; it had accessed
information that it had requested from a third-party to which that
collection of information had already been disclosed. Thus, the
disclosure to that third-party could be thought to have destroyed
whatever privacy expectation the defendant might otherwise have
possessed. Id. The Court thus identified the various features of
the surveillance canvassed above at least in part to justify not
extending the third-party doctrine to the case at hand, despite
the fact that the doctrine had been held to apply to, for example,
bank records, which are themselves quite revealing, see United
States v. Miller, 425 U.S. 435, 443 (1976).
We, of course, have no such issue regarding the third-
party doctrine to address. The government here accessed a digital
compendium that it created on its own and that was not disclosed
in advance to any other party. In that respect, the case for
concluding that the government contravened the defendants'
reasonable expectation of privacy is seemingly more
straightforward than it was for concluding similarly with the
respect to the reasonable expectation of privacy of the defendant
in Carpenter itself.
At the same time, Carpenter, by its own terms, is not
limited to situations in which the third-party doctrine is in play,
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despite what our colleagues suggest. Carpenter, 138 S. Ct. at
2217. Concur. Op. at 113-14. Indeed, in the paragraph of
Carpenter that describes how the decision is a "limited one," the
Court expressly does not limit its decision to only those
situations in which the third-party doctrine is implicated. Id.
at 2220; see also id. at 2217 ("Whether the [g]overnment employs
its own surveillance technology as in Jones or leverages the
technology of a wireless carrier, we hold that . . . [t]he
location information obtained from Carpenter's wireless carriers
was the product of a search.").
It follows, then, that Carpenter's analysis of the
contravention issue also bears on whether a means of electronic
surveillance utilized by the government itself is a means that
"contravenes" a reasonable expectation of privacy. The question
for us here, therefore, is how Carpenter's analysis of the
contravention question bears on our analysis of that question,
even though the third-party doctrine is not at issue.
In addressing that question, we must be cautious about
responding to this means of surveillance in a manner that would
"embarrass the future," id. at 2220 (quoting Nw. Airlines, 322
U.S. at 300), by needlessly stripping government of a potentially
useful surveillance tool insofar as that tool -- even if newfangled
-- does not threaten to erode the vital protections that the Fourth
Amendment provides any more than longstanding but somewhat-updated
- 62 -
versions of more pedestrian, surveillance techniques would. At
the same time, though, we must not lose sight of the fact that the
Fourth Amendment was drafted with the "central aim of . . .
'plac[ing] obstacles in the way of a too permeating police
surveillance,'" id. at 2214 (quoting Di Re, 332 U.S. at 595), and
that courts must "assure [] preservation of that degree of privacy
against government that existed when the Fourth Amendment was
adopted" in assessing evolving technologies that threaten that
degree of privacy, id. (alteration in original) (quoting Kyllo,
533 U.S. at 34).
Moreover, we must attend to the fact that Carpenter, as
we have pointed out, explained that it was a "narrow ruling" that
did not apply to "conventional surveillance techniques." Id. at
2220. And, we must also take account of the fact that Carpenter's
caveat on that score accords with Carpenter's observation that
government conduct that "contravenes" a reasonable expectation of
privacy "generally" -- and thus not necessarily always --
constitutes a search. Id. at 2213 (emphasis added).
With those considerations in mind, we conclude, as we
will next explain, that many of the same reasons that Carpenter
relied on to find that the government had contravened the
reasonable expectation of privacy at issue there -- and so
conducted a search -- equally support the conclusion that the
government did the same in this case. For, while the databases
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that the government accessed in the two cases are not identical,
the differences between them are not of a kind that warrants an
outcome here opposite to Carpenter's with respect to the
contravention issue.
1.
For starters, there is little doubt that the record
generated over the months-long expanse of time by the digital pole
camera in this case is "deeply revealing" of the "privacies of
life." Carpenter, 138 S. Ct. at 2217, 2223 (quoting Riley, 573
U.S. at 403). Like the seven days' worth of the historical CSLI
accessed by the government in Carpenter, the digital videologue
that was created here provides an "intimate window into [the
defendants'] li[ves]." Id. at 2217.
That is so, in part, due to the "depth, breadth, and
comprehensive" reach of the pole camera's gaze, id. at 2223,
trained as it was on the front curtilage of the Hadley Street
property over eight months and capable as it was of retaining in
full -- and in readily searchable form -- all that it espied for
as long as it looked. Indeed, while the camera at issue here
records live images, the CSLI at issue in Carpenter merely reveals
a dot on a map for a single person.
That is also so, because, as we explained in connection
with the reasonable expectation of privacy portion of the inquiry,
the focus of the pole camera's recording -- the front curtilage of
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the defendants' residence -- implicates the home, which is "[a]t
the very core of the Fourth Amendment." Kyllo, 533 U.S. at 31(internal quotation marks omitted). Every person has the right to
"retreat into [and enjoy] his own home and there be free from
unreasonable governmental intrusion." Jardines, 569 U.S. at 6
(quoting Silverman, 365 U.S. at 511). And, for good reason, as
our home (curtilage included) is often the center of our lives: it
is where we always return to, where our friends, family, and
associates visit, where we receive packages and mail, and where we
spend a good deal of time. Observing the movements in front of a
home for months, therefore, can reveal quite a lot about a person
-- at the very least "familial, political, professional,
religious, and sexual associations," Carpenter, 138 S. Ct. at 2217(quoting Jones, 565 U.S. at 415 (Sotomayor, J., concurring)) --
and perhaps to a greater extent than even a substantial swath of
one's historical CSLI.
There is similarly little doubt that, like the type of
surveillance at issue in Carpenter, the type of surveillance at
issue here is "easy, cheap, and efficient" relative to its pre-
digital substitute. Id. at 2217-18. The government can initiate
the surveillance -- and then carry it through to completion -- for
a pittance relative to what a traditional stakeout would cost in
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terms of time and expense, to say nothing of the reduction in the
risk of detection that this means of surveillance makes possible.19
The digital pole camera recording here, given the
substantial expanse of time that the digital record encompasses,
is also an unusually efficient tool of surveillance in another
19 Our colleagues suggest that the long-term use of a pole
camera is not "easy, cheap, and efficient" because such
surveillance is "not cost-free." Concur. Op. at 113. True, the
use of a pole camera comes with a cost (as does the use of a GPS
tracker and the receipt and review of CSLI). But, there is no
basis on this record for concluding that the cost is a great one,
as our colleagues themselves also point out by emphasizing how
inexpensive cameras are for the everyday consumer.
Our colleagues do suggest that while it may be inexpensive to
use a single pole camera to create a searchable record, replicating
that surveillance by "[p]lacing and maintaining . . . millions of
pole cameras" to compile a database of "years of video" is not.
Concur. Op. at 113 n.39. But, our colleagues do not explain why
the ease with which the government can replicate the surveillance
is the relevant comparator for purposes of determining whether a
surveillance technique is cheap. Indeed, Carpenter's reliance on
the Jones concurrences in explaining why CSLI is "easy, cheap, and
efficient" relative to past, conventional technologies suggests
the opposite. Carpenter, 138 S. Ct. at 2217-18. As we have
described, in Jones, the concurrences were concerned with the
resource constraints that make tailing a single individual for a
long period impractical -- at no point did the concurrences in
Jones consider whether it would be "easy, cheap, and efficient" to
use a GPS tracker tail every person in the United States for every
hour of every day. See Jones, 565 U.S. at 415-16 (Sotomayor, J.,
concurring); id. at 429 (Alito, J., concurring in the judgment).
In any event, the relevant question after Carpenter is not
whether a technology is cost-free. It is whether the efficiencies
afforded by the surveillance tool give rise to the substantial
risk that what had been at best a most rare prospect of
surveillance will become more routine and thereby upend the balance
between security in the private realm and order that the Fourth
Amendment strikes. We see no reason to doubt that the efficiencies
of this tool are of that sort.
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way: it is easily searchable -- especially when, considering the
"more sophisticated [versions of this technology] that are already
in use or in development," id. at 2218-19 (quoting Kyllo, 533 U.S.
at 36), the ability to utilize facial recognition and other forms
of visual search technologies is factored into the searchability
of this record. See also Riley, 573 U.S. at 381, 385 (considering
the appropriateness of extending the search-incident-to-arrest
doctrine to "modern cell phones" with "smart" features even though
the phone at issue in one of the two cases on appeal was a "flip
phone" with none of those "smart" features). The ease with which
a voluminous digital record may be mined to yield otherwise hidden
information, when combined with the capacity for that record to be
stored (given cloud-based computing), makes it distinct from its
analog analogues. One need only imagine the officer tasked with
reviewing month three of a collection of eight months of VHS tapes
-- assuming that she could retrieve them in a timely fashion from
the warehouse -- to see how distinct the digital repository before
us is.
Finally, the accessing by the government of the pole
camera-generated, digital video record here is also similar to the
accessing by the government of the CSLI in Carpenter in the third
way that Carpenter identified as salient to the contravention
inquiry: the means of evading the creation of the record are not
feasible. As the Court recognized in Carpenter, CSLI is generated
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"several times a minute" "[e]ach time the phone connects to a cells
site" -- "even if the owner is not using one of the phone's
features." Carpenter, 138 S. Ct. at 2211. The only way to avoid
generating CSLI is to not use a cell phone, which the Court
recognized was simply not a feasible precaution for a person
functioning in today's society. Id. at 2218.
Evading the pole-camera surveillance here -- contrary to
our colleagues' suggestion -- demands no less unreasonable efforts
to thwart it. Nor is a homeowner likely to be placed on notice
that the government is surveilling the property via pole camera,
because, by definition, such surveillance is clandestine. In fact,
a homeowner need not be on notice of even his own illegal activity
to be subjected to this type of watch. By the government's own
theory, no level of suspicion is needed to utilize a pole camera.
To be sure, a well-constructed fence or craftily planted
hedgerows may enable the homeowner to block the gaze of a hidden
camera placed at street level, to the extent financial and
regulatory constraints make either countermeasure realistic. But,
the saying, "show me a wall and I'll show you a ladder" comes to
mind. We must assume that the government would choose to place
the camera at a height sufficient to surmount whatever vertical
barrier would obstruct its view. Thus, the only countermeasures
certain to work -- never leaving the house or enclosing the
curtilage to make it effectively part of the inside of the house
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-- are at least as unreasonable to expect a person to take as
leaving home without a cell phone.
That said, the comparison to the government's accessing
of the CSLI in Carpenter is not a perfect one. CSLI is created by
wireless carriers as part of the provision of cell-phone service.
As a result, any law-enforcement accessing of historical CSLI from
a wireless carrier has a "retrospective quality." For this reason,
in accessing the CSLI at issue in Carpenter, the Court emphasized,
the government was able to overcome the "dearth of records and the
frailties of recollection" and was limited instead only by "the
retention policies of the wireless carriers." Id.The accessing of that trove of historical data was in
that respect more concerning than even the government's use of
CSLI to track a person's movements in real time. Id. at 2220.
The accessing of the historical CSLI gave the government,
instantly, information that the government did not even know that
it needed and so would never have collected on its own.
By contrast, because the government set up the pole
camera in this case, it follows, as our colleagues emphasize, that
the government must have had some reason to have done so. Concur.
Op. at 113-14. In that sense, the accessing of the record of the
"privacies of life," id. at 2214 (quoting Boyd, 116 U.S. at 630),
follows a decision by the government to make the record in real
time in a way that the accessing of the historical CSLI from the
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wireless carrier in Carpenter did not. See also Tuggle, 4 F.4th
at 525 ("The government had to decide ex ante to collect the video
footage by installing the cameras.").
But, we do not understand Carpenter to suggest that the
creation of a searchable digital record that perfectly accounts
for the whole of the movements of a person over a long period of
time contravenes a reasonable expectation of privacy -- and thereby
effects a search -- only when that record was created before the
government wished to have it. Cf. Carpenter, 138 S. Ct. at 2217("Whether the [g]overnment employs its own surveillance technology
. . . or leverages the technology of a wireless carrier, we hold
that an individual maintains a legitimate expectation of privacy
in the record of his physical movements."). Indeed, it is hard to
understand why it would be less destructive of the "degree of
privacy" that existed at the time of the Founding, id. at 2214, to
have the government directly engage in scooping up visual
information about all that occurs in front of a residence over a
long period of time than to have the government selectively request
that information from a private actor who had undertaken its own
collection effort to amass a wealth of data, id. at 2218.
We recognize that democratic pressures may, of their own
force, constrain the widespread use of this means of surveillance.
But, the risk that this form of surveillance, given how cheap,
easy, and efficient it is, would upset the Framers' balance if
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permitted to be deployed unrestrained by the Fourth Amendment is
clear enough. There appears to be little in the nature of the
technology itself that would stop the government from choosing to
replicate the form of surveillance at issue here widely. Nor does
the government give us reason to have confidence that limits either
practical or legal are sure to restrain its use. Indeed, it
asserts that it need not have even a modicum of suspicion to engage
in the surveillance at issue here.20
The concern, then, is real that, in time, this form of
surveillance could become a means by which the "society" to which
we look for guidance in determining what "expectations of privacy"
are worthy of constitutional concern would become a society that
would no longer afford privacy the kind of protection that the
Fourth Amendment has long been understood to provide it. See
Tuggle, 4 F.4th at 527-28 (explaining that "if current technologies
are any indication, . . . technological growth will predictably
have an inverse and inimical relationship with individual privacy
from government intrusion, presenting serious concerns for Fourth
20 Our colleagues propose a constraint of their own: They
suggest that "creat[ing] anything approaching cellular service
providers' databases" for pole-camera footage "would entail such
an enormous expenditure of scarce resources as to ensure that would
never happen." Concur. Op. at 113 n.39. But, we are hesitant to
so casually dismiss as impossible the notion that the government
may not be surgical in the use of pole-camera surveillance in the
future, as the government has collected and analyzed immense
amounts of information in the recent past, see, e.g., Am. C.L.
Union v. Clapper, 785 F.3d 787, 796-97 (2d Cir. 2015).
- 71 -
Amendment protections" because "once society sparks the promethean
fire -- shifting its expectations in response to technological
development -- the government receives license . . . to act with
greater constitutional impunity"). For, while pole cameras are
not currently in use today by law enforcement to monitor the front
of every home, or even every home in a neighborhood, see, e.g.,
Paul Mozur & Aaron Krolik, A Surveillance Net Blankets China's
Cities, Giving Police Vast Powers, N.Y. Times (Dec. 17, 2019),
https://www.nytimes.com/2019/12/17/technology/
china-surveillance.html, Carpenter emphasized that courts are
"obligated -- as '[s]ubtler and more far-reaching means of invading
privacy have become available to the [g]overnment' -- to ensure
that the 'progress of science' does not erode Fourth Amendment
protections," Carpenter, 138 S. Ct. at 2223 (first alteration in
original) (quoting Olmstead, 277 U.S. at 473-74 (Brandeis, J.,
dissenting)).
Moreover, even though the government created the digital
record at issue in this case, the accessing of it by the government
still shares many of the features that Carpenter pointed to in
expressing concern about the "retrospective quality" of the
government's accessing of historical CSLI. Id. at 2218. The
government claims that it can set up an unmanned digital video
pole camera for law enforcement purposes without a warrant or even
any constitutionally required showing of a predicate in front of
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any -- and by extension all -- homes and let the camera
continuously record for eight months. And, Carpenter indicates
that the point at which we consider whether the pole-camera
surveillance "contravened" a reasonable expectation of privacy is
the point at which the government "accesses" -- rather than
produces -- the record. Id. at 2219. Therefore, the resulting
pole-camera-generated record, if of sufficient duration, is like
historical CSLI in that it also can give the government the ability
both to "travel back in time" with little expense to witness with
perfect precision activities that turn out to be of any focused
interest to law enforcement only upon reflection and to do so
"effortlessly" in a way that precursor methods of home surveillance
practically could not. Id. at 2216, 2218.
C.
Notwithstanding these similarities between the
surveillance means used in this case and the means at issue in
Carpenter, the government contends that Carpenter's statement that
it was not "call[ing] into question conventional surveillance
techniques and tools, such as security cameras" precludes us from
extending its reasoning to find the kind of contravention of a
reasonable expectation of privacy that would show a search to have
occurred here. Id. at 2220. But, we are not persuaded by this
contention either.
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1.
The government contends that the use of the pole camera
constituted a "conventional surveillance technique[]" and that
Carpenter was careful to exclude all such techniques from the ambit
of its decision. Id. The government explains that "cameras with
comparable capabilities [have been] employed by law enforcement"
since around 1970. As a result, the government argues, a pole
camera is merely a specific manifestation of a familiar policing
tactic and so is not akin to the CSLI at issue in Carpenter.
We first must note that a video camera from 1970 -- or
even 1987 as our colleagues suggest -- is by no means equivalent
to the digital pole camera utilized here and the searchable,
electronic record that it produced.21 But, even to the extent that
the government's argument rests on relatively contemporary
versions of the pole camera -- like the digital video pole camera
utilized in Bucci, for example, 582 F.3d at 116 -- we are not
convinced. We do not read Carpenter to state that any technology
utilized in the decade before that decision is automatically a
"conventional surveillance technique." Such a conclusion would
21To highlight one significant difference, the cameras then
could not have streamed the video footage to a website; a law
enforcement officer would have had to physically change the tapes.
For another, the footage produced was not "searchable": an officer
would have to view personally the footage to glean anything from
it -- a significant undertaking that would diminish the usefulness
of the surveillance and make it much more akin to a stakeout.
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conflict with the reality of the technology in Carpenter itself:
cell-phone towers, after all, had been erected decades before
Carpenter itself was decided, see, e.g., Jon Van, Chicago goes
cellular, Chi. Trib. (June 3, 2008),
http://www.chicagotribune.com/nation-world/chi-chicagodays-
cellular-story-story.html, and the location records from those
towers were utilized by law enforcement as early as 2001, see
United States v. Forest, 355 F.3d 942, 947 (6th Cir. 2004), vacated
sub nom. Garner v. United States, 543 U.S. 1100 (2005). (Bucci,
a careful reader may recall, was decided nearly a decade later.)22
In addition, the government points to nothing that
indicates that it is a relatively common occurrence to have all
the activities in front of one's residence surveilled and
permanently recorded by digital video cameras.23 In fact, the
To that same point, we disagree with our colleagues that
22
the Court aimed to include any form of surveillance of which it
was aware, assuming that the Court was aware of the warrantless
use of pole cameras to conduct long-term 24/7 surveillance of
homes, within its reference to "conventional surveillance
techniques and tools," Carpenter, 138 S. Ct. at 2220. Concur. Op.
at 107-08.
Many of the decisions that the government and our colleagues
23
cite that involve the use of a video pole camera, nearly all of
which were decided in the last decade, do not mention whether the
pole camera in question was surveilling a residence or, if so, for
how long. See, e.g., United States v. Pardo, No. 2:18-CR-00063-
GZS, 2019 WL 4723751, at *1 (D. Me. Sept. 26, 2019) ("On February
23, 2018, by way of a pole camera, agents observed a gray Toyota
Tundra with a Massachusetts license plate arrive at one of
Bellmore's places of business in Lewiston."). And, the few cases
that are analogous hardly establish that the use of a pole camera
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government acknowledges -- as it must -- that "there appears to be
little published information concerning the prevalence of case-
specific pole cameras like the one here."
We also are not persuaded by the government's various
examples regarding the deployment of video camera technology in
other contexts. Notably, none references government-installed
hidden video cameras recording homes on residential streets and
permanently storing the ensuing video footage, let alone for the
purpose of carrying out a targeted criminal investigation rather
than incidentally for some other purpose.24
to monitor all of the activities visible in the front curtilage of
a home for a prolonged period was a routine or "conventional"
technique. See United States v. Bregu, 948 F.3d 408, 411 (1st
Cir. 2020) (describing seven months of pole-camera surveillance of
a residence); United States v. Moore, 281 F.3d 1279, 2001 WL
1692476, at *1 (5th Cir. Nov. 27, 2001) (unpublished table
decision) (describing one year of pole-camera surveillance in
front of a home); United States v. Carraway, 108 F.3d 745, 748
(7th Cir. 1997) (using a pole camera to surveil for 45 days a
trailer that the defendant resided in). Moreover, the many civil
cases that find the long-term recording of a neighbor's activities
in the curtilage of the neighbor's home tortious only seem to
reinforce the conclusion that long-term video surveillance of the
front curtilage of a home is not a typical occurrence. See, e.g.,
Wolfson, 924 F. Supp. at 1413; Gianoli, 563 N.W.2d at 568; Jones,
No. B135112, 2002 WL 853858; Mangelluzzi, 40 N.E.3d at 588.
24 For example, to support its contention that this
"traditional type of surveillance camera . . . has been in use for
nearly five decades," (capitalization altered), the government
identifies news articles that indicate that government-operated
cameras were "installed in the center of Olean, New York, as a
demonstration project" to guard "the main street" there in 1968,
and "three fixed cameras . . . [were] placed in Times Square" in
1973. No reference is made to cameras that surreptitiously collect
- 76 -
Finally, the government asserts that "camera systems
also are employed in residential areas, parking lots, and on public
transportation systems." But, it cites to a single source that,
in discussing the surveillance of "residential areas," appears to
be discussing private, prominent surveillance cameras employed by
either private property owners to keep watch over their own
property in order to deter crime or neighborhood groups that use
"CCTV schemes [to] cover all public areas, such as streets," for
the same purpose.25 Again, no mention is made of the use, let
months of footage of the curtilage of homes for criminal
investigatory purposes.
Similarly, to support the contention that there are numerous
"public surveillance cameras serving law enforcement
purposes . . . in municipalities around the United States," the
government points us to "the approximately 2,000 cameras operated
by the Chicago Police department," which the government notes are
"highly visible and typically accompanied by both signage and blue
flashing lights." But, the government does not undertake to
explain whether (or, if so, to what extent) the Chicago cameras -
- or those in any other jurisdiction -- are used surreptitiously
to surveil private residences and the curtilage of them. In fact,
the report cited by the government in this discussion describes
Chicago's cameras as a "public surveillance system" that utilizes
"highly visible" cameras that provide "real-time footage from
[areas] located throughout the city," including in "the Humboldt
Park neighborhood" and "the West Garfield Park neighborhood."
Nancy G. La Vigne et al., Urban Institute Justice Policy Ctr.,
Evaluating the Use of Public Surveillance Cameras for Crime Control
and Prevention, at ix (2011).
25 See Eric L. Piza et al., CCTV Surveillance for Crime
Prevention: A 40-Year Systemic Review with Meta-Analysis, 18
Criminology & Pub. Pol'y 135 (2019) (discussing study's conclusion
that "CCTV schemes in residential areas were associated with
significant crime reductions" but also explaining that "flashing
- 77 -
alone widespread use, of surveillance camera technology to
surreptitiously surveil the front curtilage of the homes of others
over a long period for a criminal investigatory purpose.
We thus are unpersuaded by the government's argument
that Carpenter's analysis does not apply to the pole-camera
recording here because it is a form of conventional surveillance.
Even if a given piece of technological equipment is familiar, what
matters for purposes of the contravention inquiry is the context
of its deployment. Compare Katz, 389 U.S. 347, 353 (finding that
a person has a reasonable expectation that their conversation will
not be recorded when they use a phone booth), with United States v.
White, 401 U.S. 745, 751-53 (1971) (concluding that a person does
not have a reasonable expectation of privacy that their
conversation will not be recorded by the person to whom they are
speaking even when the recording device is hidden). Compare also
Jardines, 569 U.S. 1, 11-12 (holding that a dog sniff for drugs in
the front curtilage of the home is a search), with United States v.
Place, 462 U.S. 696, 707 (1983) (concluding that a drug sniff in
an airport was not a search). For, "[a]s technology has enhanced
the government's capacity to encroach upon areas normally guarded
from inquisitive eyes," we must apply the Fourth Amendment to those
technologies to "assure [] preservation of that degree of privacy
lights on top of CCTV cameras" or "signage w[ere] . . . frequently
deployed" to make the presence of such cameras apparent).
- 78 -
against government that existed when [that] Amendment was
adopted." Carpenter, 138 S. Ct. at 2214 (second alteration in the
original) (quoting Kyllo, 533 U.S. at 34).
Thus, accepting that the age-old, manned stakeout --
even if enhanced by the latest in digital cameras -- qualifies as
a conventional surveillance technique, see Knotts, 460 U.S. at
283-85, we cannot agree that the months-long, digital-pole-camera
variant does as well. The word "conventional" simply does not
readily call to mind as unusual a technique as that. We thus
disagree with our colleagues that our reasoning would somehow
deprive the government of the use of an ordinary law enforcement
tool.26
2.
The government also argues that even if the pole-camera
surveillance at issue here was not necessarily "conventional
surveillance," a pole camera is a species of "security camera[]."
The government then argues that, for that reason alone, the use of
the pole-camera surveillance at issue here is necessarily a
"conventional surveillance technique[]" by Carpenter's lights.
Carpenter, 138 S. Ct. at 2220. We, however, agree with the
And, we note, to the extent that our opinion would limit
26
law enforcement use of the surveillance at issue here, it would
only deprive the government of the ability to utilize that
surveillance technique without the protections that the Fourth
Amendment provides.
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defendants that the pole camera trained by law enforcement on their
home for eight months, generating a searchable digital video
database of the activities visible to that camera, is not like the
"security cameras" left unquestioned in Carpenter.
In describing "security cameras" as a "conventional
surveillance technique[]" akin to "other business records that
might incidentally reveal location information," id. at 2220, the
Court is most naturally understood to have been referring to the
familiar "tactic[]" under which police have sought footage from
third parties that had been collected by their security cameras in
the area of a crime. Carpenter made its one reference to "security
cameras" in the very same sentence that clarifies that the Court
"do[es] not disturb" the caselaw that addresses a person's
expectation of privacy in information voluntarily handed over to
third parties, id. (citing Miller, 425 U.S. 435, and Smith, 442
U.S. 735), and just prior to a sentence that clarifies that the
Court is not addressing "other business records," id. (emphasis
added). In this way, the Court intimated that the "security
cameras" were private security cameras guarding private property.27
27We also note that the Carpenter petitioner emphasized that,
although the police have long "sought security camera footage" as
an investigatory "tactic[]" employed "prior to the widespread
proliferation of cell phones," that "tactic[]" cannot be compared
to police seeking long-term CSLI -- as this "security camera"
"tactic[]" enabled "law enforcement agents [to] retrieve[] at best
only fragmentary historical location records." Br. for Pet'r at
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We note, too, that the government's briefing to us
highlights the fact that conventional security cameras are
typically placed so that they are overt -- not hidden or hard-to-
spot, as the camera here was.28 By contrast, cameras utilized for
criminal investigatory (rather than "security") purposes are -- by
definition -- covertly placed; otherwise, as our colleagues
emphasize, Concur. Op. at 110 n.37, that investigatory tactic would
hardly be effective.
Finally, the Carpenter opinion's passage referencing
"security cameras" is immediately followed by a sentence that
11, 18, Carpenter, 138 S. Ct. 2206 (No. 16-402) (emphasis added);
see also Amicus Curiae Br. for Natl' Dist. Att'ys Ass'n at 26 &
n.17, Carpenter, 138 S. Ct. 2206 (No. 16-402) (explaining that
"police frequently contact multiple third parties with
surveillance capabilities to piece together an individual's
movements," and that under "the third-party doctrine . . . a
defendant would ordinarily have no standing to preclude a third
party from releasing" footage by which an "individual's location
[is] captured on a third party's private security camera, or even
network of cameras").
28By highlighting this difference, we do not mean to suggest
that a search cannot occur if the pole camera conducting the
surveillance is clearly and obviously placed. After all, the
government may not circumvent the Fourth Amendment by merely
running ads letting the population know that it is collecting CSLI
for criminal investigations. See Smith, 442 U.S. at 741 n.5
("Situations can be imagined, of course, in which Katz's two-
pronged inquiry would provide an inadequate index of Fourth
Amendment protection. For example, if the Government were suddenly
to announce on nationwide television that all homes henceforth
would be subject to warrantless entry."). But, we do not rule out
the possibility that, in some circumstances, the obviousness of
the surveillance could play a role in assessing whether the
defendant had a subjective expectation of privacy.
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explains that the decision is also not disturbing the authority of
law enforcement to access "other business records that might
incidentally reveal location information." Carpenter, 138 S. Ct.
at 2220 (emphasis added). This reference, too, suggests that even
if the pole camera in question here could, in some scenarios, be
viewed as a "security camera" or a "business record," the camera,
as here used, is not of that kind. This camera was specifically
placed so as to "reveal location information" pertaining to
specific individuals for law enforcement's investigative purposes
-- namely the movements of the defendants in the front curtilage
of the Hadley Street home. There is nothing "incidental" about
the "location information" regarding the home on which the camera
was trained that the camera revealed. Id. at 2220.
In that sense, the pole camera here appears in stark
contrast to other types of cameras commonly operated by both
private individuals and the government in which the camera fulfills
a purpose distinct from tracking a person's movements at a
particular residence and may only record where a particular
individual is on a certain occasion as an incident of the camera's
more general security-related function.29 Thus, we reject the
It is for this reason that we disagree with our colleagues
29
that our conclusion as to what constitutes a "security camera[]"
under Carpenter "would subject the less affluent who live on public
streets . . . to lesser law enforcement than those in wealthy
neighborhoods." Concur. Op. at 110-11. Video cameras, assuming
- 82 -
government's suggestion that Carpenter establishes -- by virtue of
its cursory reference to "security cameras" -- that the accessing
by the government of the record of the whole of the activities
occurring in the curtilage of a home for eight months that the
hidden pole camera here generated does not contravene a reasonable
expectation of privacy in a manner that effects a Fourth Amendment
search.
D.
Shifting focus, the government suggests that even if
everything that we have said in applying Carpenter to this case so
far is correct, Carpenter is not the Supreme Court precedent that
should control our analysis of the contravention portion of the
Katz inquiry. The government contends that Carpenter concerned
technology that tracks one's movements in public, while here we
are faced with technology that allows for the ability to view one's
home. Thus, the government contends, Kyllo, which concerned the
use of advanced heat sensory technology to surveil a private
that they are government operated, could have a purpose
"incidental[]" to "reval[ing] location information," Carpenter,
138 S. Ct. at 2220, such as public safety, that is unrelated to
the monitoring of a particular home for criminal investigatory
purposes. And, that is true of any neighborhood in which such
cameras are so used. Moreover, to the extent our colleagues'
concern about excluding this type of surveillance from that
conducted by "security cameras" -- as Carpenter understood that
category -- stems from a worry that bias may infect the targets of
such surveillance, the concern is hard to understand. It would
seem to us that more rather than less constitutional protection
would be -- well -- warranted if that were the concern.
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residence, is the most relevant Supreme Court precedent for present
purposes. See Kyllo, 544 U.S. at 40.
The government argues in this regard that Kyllo created
a bright line rule that only technologies that "explore details
that would previously have been unknowable without a physical
intrusion" into a suspect's home raise Fourth Amendment concerns.
Because the pole camera captured only what was exposed to public
view and involved no such "physical intrusion," the government
suggests, we must find that the government here did not contravene
a reasonable expectation of privacy. But, Kyllo's holding that
"surveillance is a 'search'" if "the [g]overnment uses a device
that is not in general public use[] to explore details of the home
that would previously have been unknowable without physical
intrusion" states a sufficient rather than a necessary condition
for determining that a search has occurred.30 Id.
Furthermore, the "bright line" the government points to was
30
drawn by the Court to respond to the suggestion by the dissent in
that case that technologically-revealed details about a home can
be subject to Fourth Amendment protection only if the "homeowner
would even care if anybody noticed." Id. at 50 (Stevens, J.,
dissenting). In rejecting that suggestion by the dissent, the
Kyllo majority observed that "the Fourth Amendment draws 'a firm
line at the entrance to the house'" that is "not only firm but
also bright." Id. at 40 (quoting Payton v. United States, 445
U.S. 573, 590 (1980)). Kyllo's observations in this regard were
thus a way of explaining why "[l]imiting the prohibition . . . to
[technology that reveals] 'intimate details' would . . . be wrong
in principle," id. at 38, for the Fourth Amendment protects what
occurs inside the home irrespective of how sensitive that activity
is. Kyllo thus cannot fairly be read to sanction the government's
- 84 -
Moreover, Kyllo, after framing the question presented
there as "how much technological enhancement of ordinary
perception . . . is too much," Kyllo, 533 U.S. at 33, found that
the use of an infrared camera to see wavelengths, radiating from
the exterior of the target's home, that no human eye could see
increased human perception to such a degree that the use by law
enforcement of the infrared camera did not merely augment an
officer's ordinary observational abilities. Likewise, here, the
pole camera created a searchable, digital record of moving images
of all that transpired in front of the defendants' residence for
eight months that is not only infallible but also shareable with
others. We thus reject our colleagues' conclusion that the
government's use of the pole camera here merely "augment[ed] their
investigation," Concur. Op. at 122.
Finally, Kyllo emphasized that it was "reject[ing] a
mechanical interpretation of the Fourth Amendment" that would
sanction all technological observation of information gleaned from
a home's exterior, no matter how revealing those observations may
be. See id. at 35 (explaining that the exterior/interior approach
would "leave the homeowner at the mercy of advancing technology").
Indeed, Kyllo, like Carpenter, is premised on the understanding
that, in assessing Fourth Amendment questions with respect to
use of any and all surveillance technology to explore details about
the curtilage.
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evolving technologies, it is important to "take account of" not
just the technology at issue but also "more sophisticated systems
that are already in use or in development." Carpenter, 138 S. Ct.
at 2218 (quoting Kyllo, 533 U.S. at 36).
Thus, in determining whether the government's accessing
of the pole-camera record at issue here constitutes a search, we
-- like the Court in Carpenter, Kyllo, and Riley -- must keep in
mind the potential of the surveillance technology before us, given
the advent of smaller and cheaper cameras with expansive memories
and the emergence of facial recognition technology. See Riley,
573 U.S. at 393 (noting that "[t]he term 'cell phone' is itself
misleading" because modern cell phones "are in fact minicomputers
that also happen to have the capacity to be used as a telephone"
and thus "in both a quantitative and a qualitative sense from other
objects that might be kept on an arrestee's person"). It follows
that Kyllo provides no basis for ignoring Carpenter in assessing
the contravention issue here.
E.
For these reasons, we conclude that the contravention
portion of the Katz test is met in this case just as the other
portions of that test are met as well. We thus conclude that the
government's accessing of the record that the government itself
generated by the pole camera in this case of the whole of what
visibly occurred in the front of the Hadley Street residence during
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the eight months in question constituted a "search" within the
meaning of the Fourth Amendment.31
That said, beyond answering the question before us, we
do not purport to decide what (if anything) the Fourth Amendment
might require when the government deploys digital technology in
other circumstances, just as Carpenter did not.32 And, that is so
even as to duration -- a criterion that Carpenter itself did not
purport to define with precision, see 138 S. Ct. at 2217 n.3 --
given that the record here encompasses a period more than eight
times as long as the nearly month-long period of GPS tracking
thought long enough to ground the reasonable expectation of privacy
recognized in the Jones concurrences and on which Carpenter itself
expressly relied. See id. at 2217 (citing Jones, 565 U.S. at 415
31Our colleagues suggest that we are "violat[ing] principles
of stare decisis" by concluding as we do. But, given that we are
hearing this case en banc for the express purpose of reconsidering
our Court's prior decision in Bucci, we do not see how that is so.
Most crucially, for the reasons we have explained, the Supreme
Court's decision in Carpenter, relying on Jones, provides new
support for concluding that the earlier reasoning in Bucci is no
longer correct. Moreover, to the extent that our colleagues are
concerned that the government has a reliance interest that would
be infringed if we were to overrule Bucci, we do not see how that
is the case, as we conclude that the good-faith exception to the
warrant requirement would enable the government to utilize
evidence that it acquired in reliance on Bucci prior to this
decision.
32 We emphasize that the government does not argue in
challenging the District Court's granting of the motions to
suppress before us that those motions concern only the fruits of
pole-camera surveillance that occurred -- and were observed in
real time -- in the early stages of the recording, such that the
compendium itself provided no assistance.
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(Sotomayor, J., concurring) and Jones, 565 U.S. at 430 (Alito, J.,
concurring in the judgment)).
V.
We recognize that, as the government emphasizes, other
courts that have considered the use of pole-camera surveillance
-- even over a long duration -- have found no search to have
occurred. But, we do not find in that body of precedent a reason
to conclude other than as we do.
Many of these cases were decided before Carpenter. See,
e.g., United States v. Houston, 813 F.3d 282, 289 (6th Cir. 2016);
United States v. Jackson, 213 F.3d 1269, 1280-81 (10th Cir. 2000),
vacated on other grounds, 538 U.S. 1033 (2000). But see, e.g.,
United States v. Cuevas-Sanchez, 821 F.2d 248, 251 (5th Cir. 1987);
United States v. Vargas, No. CR-13-6025, 2014 U.S. Dist. LEXIS
184672, at *28-30 (E.D. Wash. Dec. 15, 2014). Indeed, since
Carpenter, only a few circuit courts have been squarely faced with
the issue.
Notably, some of these post-Carpenter rulings, in
finding no search to have occurred, have not engaged in a fulsome
way with the Supreme Court's reasoning in Carpenter. They have
merely applied prior in-circuit precedent. See United States v.
May-Shaw, 955 F.3d 563, 567 (6th Cir. 2020) (explaining that
"[a]lthough this argument may be compelling in theory, . . . it
[was] foreclosed by th[e] [Sixth Circuit]'s case law").
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In addition, the highest courts of two states have
understood Carpenter to have altered the landscape. See People v.
Tafoya, 494 P.3d 613, 623 (Colo. 2021); Mora, 150 N.E.3d at 311.
In fact, one of them squarely holds that such pole-camera
surveillance constitutes a search under the Fourth Amendment. See
Tafoya, 494 P.3d at 623 (holding that the use of a pole camera to
surveil the backyard of the defendant every day for three months
presented the same concerns that the government's use of CSLI
presented in Carpenter and thus "involved a degree of intrusion
that a reasonable person would not have anticipated" such that the
camera's three-month recording activity constituted a search
(quoting Jones, 565 U.S. at 430 (Alito, J., concurring in the
judgment))).
An exception is the Seventh Circuit's decision in United
States v. Tuggle, 4 F.4th 505 (7th Cir. 2021), cert. denied, 142
S. Ct. 1107 (2022). It squarely grappled with whether Carpenter
and other Supreme Court precedents require a court to conclude
that the government conducts a search if it uses a pole camera to
surveil a defendant's home for a period of many months, and it
holds that they do not. Id. at 517.
Tuggle relied in part on its skepticism towards what it
describes as "mosaic theory" -- namely, the notion that the
aggregate of discrete activities each of which is visible to the
public can be the predicate for a reasonable expectation of
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privacy, even though the discrete activities on their own could
not, because the whole is sometimes greater than the sum of its
parts. Id. at 517, 520. Tuggle acknowledged that mosaic theory
has "garner[ed] passing endorsement from some -- if not most -- of
the Justices in the various opinions in Jones, Riley, and
Carpenter." Id. at 519. It expressed the specific concern,
however, that a recognition of a reasonable expectation of privacy
in such an aggregate of otherwise publicly exposed activities would
present "an obvious line-drawing problem: How much pole[-]camera
surveillance is too much?" Id. at 526.
We do not find this concern to loom as large. By
concluding that the duration of the digital surveillance at issue
here bears on whether it constitutes a search, we do not inject a
type of line-drawing problem into Fourth Amendment jurisprudence
that, as a matter of kind, is unknown. See, e.g., United States v.
Sharpe, 470 U.S. 675, 685 (1985) (explaining that while an
investigative Terry stop only requires reasonable suspicion, said
stop could become a full-blown seizure requiring probable cause
over time, but noting that there is "no rigid time limitation"
that "distinguish[es] an investigative stop from a de facto
arrest"); Knotts, 460 U.S. at 283-85 (finding no Fourth Amendment
issue with the government's use of a device to track a car for a
single car trip but noting that there could be a constitutional
issue if such surveillance continued for upwards of a day). Nor
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is it a type of line-drawing in which it is improper for courts to
engage. See, e.g., Maryland v. Shatzer, 559 U.S. 98, 110 (2010)
(holding that an individual can be subject to interrogation after
invoking the right to counsel if there is a break in custody of
fourteen days or longer); Zadvydas v. Davis, 533 U.S. 678, 701,
(2001) (permitting the government to detain a removable individual
for up to six months before the government, upon a showing by that
individual that there is "good reason to believe that there is no
significant likelihood of removal in the reasonably foreseeable
future," must present its own evidence to rebut that showing);
County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991)
(establishing that an individual arrested without a warrant must
be brought before a magistrate judge to establish probable cause
within 48 hours from the time of the arrest). More fundamentally,
by relying expressly on the concurring opinions in Jones -- a case
involving lengthy electronic tracking -- to conclude that there is
a "reasonable expectation of privacy in the whole of [one's]
movements" in public, Carpenter was necessarily rejecting the
notion that temporal line-drawing in that clearly related context
is not possible. Carpenter, 138 S. Ct. at 2217.
The Seventh Circuit could be read to be making a related
point that also merits consideration. It concerns the role of
lower courts in taking account of Carpenter.
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Tuggle suggested that the Supreme Court has not yet bound
us either to apply mosaic theory or to find the accessing of any
digital video surveillance of activity that is exposed to public
view beyond that addressed in Carpenter itself to constitute a
Fourth Amendment search. Tuggle then indicated that, for that
reason alone, it made sense for a lower court not to so find.
Tuggle, 4 F.4th at 519-20.
As we have just noted, the Court in Carpenter did appear
to embrace the long-term/short-term distinction in finding a
reasonable expectation of privacy in the whole of the defendant's
movements in public because the Court there in so holding relied
on the views of the concurring Justices in Jones. See Carpenter,
138 S. Ct. at 2217 (citing Jones, 565 U.S. at 415 (Sotomayor, J.,
concurring) and Jones, 565 U.S. at 430 (Alito, J., concurring in
the judgement)). But, we acknowledge that the Court's conclusion
that the government's accessing of CSLI in Carpenter contravened
the defendant's reasonable expectation of privacy -- and was not
a conventional surveillance technique -- arguably did not depend
solely on an embrace of the mosaic theory at that stage of the
analysis. The Court also relied in that portion of its analysis
on the "retrospective quality" of the CSLI -- namely, the CSLI had
been generated before the government accessed it. Id. at 2218.
Even still, the Court in Carpenter did embrace something
akin to the mosaic theory in finding the government's accessing of
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the CSLI contravened the reasonable expectation of privacy of the
defendant in that case and so constituted a search. Notably, the
Court in Carpenter did not suggest that it was holding that the
government's accessing of any information from a pre-existing
store of CSLI in and of itself would contravene a reasonable
expectation of privacy. It held only that accessing seven days'
worth of such CSLI did -- in part because the Court concluded that
such a seven-day-long record of historical CSLI was sufficiently
"comprehensive" to contravene a reasonable expectation of privacy.
Id. at 2217 n.3, 2223.
In any event, we see no reason why lower courts must --
uniquely in this specific context of constitutional interpretation
-- await controlling word from the Supreme Court before finding
the Constitution to be protective. In fact, our circuit has some
experience with a like question that suggests that it would be a
mistake for us to take that view.
A little less than ten years ago, we were presented with
the question of whether we should allow the search-incident-to-
arrest exception to the warrant requirement to enable an officer
to search a cell phone possessed by the defendant at the time of
arrest. See United States v. Wurie, 728 F.3d 1 (1st Cir. 2013).
Supreme Court precedent at the time did not on its own compel us
to find a search; it had not addressed a case involving acquisition
of a personal device so chock-full of a person's privacies as the
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cell phone. But, given the new technological realities involved,
we declined to allow the exception to include a search of a cell
phone, as we concluded that any other approach would "create 'a
serious and recurring threat to the privacy of countless
individuals.'" Id. at 14 (quoting Arizona v. Gant, 556 U.S. 332,
345 (2009)). A year later, our approach was endorsed by the
Supreme Court, which emphasized the concerns that applying the
traditional warrant exception to cell phones would pose given the
immense amount of uniquely revealing information cell phones
contain. See Riley, 573 U.S. at 393-97.
Here, we emphasize, the Court has already invoked the
principles that we rely on to find that the use of digital
surveillance is a search under the Fourth Amendment. Our
application of those principles to find that a search occurred
here, moreover, transgresses no existing precedent of the Court.
We instead rely on the Court's precedents to reach a conclusion
that accords with an animating purpose of the Fourth Amendment,
which is "to place obstacles in the way of a too permeating police
surveillance." Carpenter, 138 S. Ct. at 2215 (quoting Di Re, 332
U.S. at 595).
Nor can we ignore the reality that sheer fear "that the
government may be watching chills associational and expressive
freedoms." Jones, 565 U.S. at 416 (Sotomayor, J., concurring).
From that perspective, our concern in deciding whether a search
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occurred is not only with the use of evidence in this one case.
It is also with the expectations of privacy that understandings of
the Fourth Amendment's reach -- as articulated by courts, including
lower ones -- themselves shape.
VI.
The government contends that even if the creation of a
searchable digital compendium of the activities in the front
curtilage of a home via the use of a digital video pole camera
effectuated an unreasonable search in violation of the Fourth
Amendment, the exclusionary sanction should not apply in this case
pursuant to the rationale set forth in Davis v. United States, 564
U.S. 229 (2011). We agree.
In Davis, the Supreme Court held "that searches
conducted in objectively reasonable reliance on binding appellate
precedent are not subject to the exclusionary rule." Id. at 232.
There, the police officers in question had acted in reasonable
reliance on an Eleventh Circuit precedent. See id. at 235 (citing
United States v. Gonzalez, 71 F.3d 819 (11th Cir. 1996)). But,
that precedent was overturned "while Davis's appeal was pending
[in the Eleventh Circuit]." Id. at 236 (citing Gant, 556 U.S.
332). The Eleventh Circuit then applied that new precedent to
find that a search occurred, thereby determining -- for the first
time on appeal -- that the exclusionary sanction should not apply.
See id. (describing opinion below). The Supreme Court granted
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certiorari to determine "whether to apply [the exclusionary]
sanction when the police conduct a search in compliance with
binding precedent that is later overruled," id. at 232, and
answered that question in the negative, id.; cf. United States v.
Campbell, 26 F.4th 860, 873, 887-88 (11th Cir. 2022) (en banc)
(explaining that issues forfeited by a party can be resurrected by
a court of appeals and applying the good-faith exception even
though it had not been raised by the parties in their initial
briefing).
Similarly here, we conclude that the government's use of
a pole camera to create a searchable digital record of the whole
of the activities that occurred in the front curtilage of a home
constituted a "search" and that this search was "conducted in
objectively reasonable reliance on binding appellate precedent,"
Davis, 564 U.S. at 232, namely, Bucci. Accordingly, as in Davis,
there is no basis for applying the exclusionary sanction here.33
33Moore-Bush and Moore do point out that the government raised
its "good faith" argument only in the briefing to us and in its
motion for reconsideration before the District Court. But, under
the circumstances here, we do not consider the "good faith" issue
to have been waived. As noted, Bucci was law of the circuit at
the time of the District Court's decision. Thus, the circumstances
here are not materially different than those in Davis, where the
government similarly raised no "good-faith reliance" argument in
the District Court when as of that time the relevant appellate
precedent had not been overruled.
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VII.
For the reasons that we have given, we conclude that the
government conducted a warrantless "search" in violation of the
Fourth Amendment when the government "accessed" the compendium of
all the activities that occurred over a period of eight months in
the front curtilage of the Moore-Bush and Moore home that the
government created surreptitiously through its use of a digital
video camera affixed to a utility pole. But, because the
government relied in good faith on our Court's prior decision in
Bucci, in which we permitted the accessing of the record of such
warrantless surveillance, we also conclude that the District Court
erred in not granting the defendants' motions to suppress.
Our colleagues view the case differently. They would
permit the government to conduct such long-term, warrantless pole-
camera surveillance of a home without a warrant, let alone probable
cause or even reasonable suspicion. They would do so, moreover,
even when that surveillance creates a searchable, digital record
of all the activities that occur in front of that home for that
prolonged period, such that the government then can mine that
record for information at any point in the future. And, finally,
they would do so even though, for the reasons that we have
explained, the government is able to undertake such surveillance
and access the resulting record with relative ease, given how
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"easy, cheap, and efficient" the technology at issue is, Carpenter,
138 S. Ct. at 2218.
Our colleagues in doing so brush past the obvious
concerns that such a decision here would generate. They do so by
explaining that law enforcement will use pole cameras sparingly
and that when law enforcement does use the technology it will have
good "reason to believe that the camera will provide information
to assist investigators." Concur. Op. at 113.
But, in determining whether a "search" occurred for
Fourth Amendment purposes, our focus is not on the number of people
subject to the surveillance in the specific case before us. Law
enforcement officers are no less engaged in a search when they
barge into a single individual's home without a warrant than when
they make a habit of barging into homes that way.
Nor in making such a determination may we assume that,
going forward, the government will conduct the surveillance
differently in future cases. The Court in Terry v. Ohio, 392
U.S. 1 (1968), did not excuse the government from having
articulable suspicion to make a stop because it assumed, in the
future, such stops would be made with it, id. at 30.
New surveillance technologies do present especially
difficult questions for courts -- and not only when it comes to
the Fourth Amendment. Our knowledge is limited. It is also
unlikely to be fully up to date.
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But, as the Supreme Court explained in Carpenter, courts
are still "obligated -- as '[s]ubtler and more far-reaching means
of invading privacy have become available to the [g]overnment' --
to ensure that the 'progress of science' does not erode Fourth
Amendment protections," Carpenter, 138 S. Ct. at 2223 (quoting
Olmstead, 277 U.S. at 473-74 (Brandeis, J., dissenting)), as
measured against the "degree of privacy against government that
existed when the Fourth Amendment was adopted," id. at 2214
(quoting Kyllo, 533 U.S. at 34). The advance of technology has
made the surveillance at issue here -- the creation of a
searchable, digital videologue of all the activities in the front
curtilage of a home for many months -- possible to an extent that
has been unimaginable for most of our history. The result is that
the government is newly able to conduct aggregative surveillance
that undermines long held expectations of privacy. For that
reason, while our colleagues conclude that the Fourth Amendment
places no limits on the use of such surveillance by the government,
we conclude that the Fourth Amendment does because its very point
is to secure the "privacies of life," id. at 2214 (quoting Boyd,
116 U.S. at 630), by placing "obstacles in the way of [that] too
permeating police surveillance," id. (quoting Di Re, 332 U.S. at
595).
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LYNCH, HOWARD, and GELPÍ, Circuit Judges, concurring.
Law enforcement installed without a warrant, as the law permits,
a camera on a utility pole on a public street to further an
investigation into illegal drug and firearms dealing from a house.
The camera provided a view of certain portions of the exterior of
the front of the house, though not the front door, and the driveway
and garage door. All of these views were totally exposed to public
observation. The camera produced evidence of criminal activity by
the residents of this house from this outside view in a residential
neighborhood.
The actions of the law enforcement officers did not,
contrary to Chief Judge Barron's concurrence (which we refer to as
the "concurrence" or the "concurring opinion"), violate the Fourth
Amendment. The concurrence, purporting to rely on Carpenter v.
United States, 138 S. Ct. 2206 (2018), wrongly applies that
precedent. Carpenter forbids and does not support the
concurrence's contention that the use of the video taken from the
pole camera by the prosecution violated the Fourth Amendment. The
concurring opinion contradicts a fundamental Fourth Amendment
doctrine enshrined in the Constitution from the founding, as
recognized by Justice Scalia in Kyllo v. United States, 533 U.S.
27, 31-32 (2001). This concurring opinion would, were it a
majority opinion, have unfortunate practical ramifications.
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I.
We set forth the relevant facts. The record shows that
law enforcement had ample reason to install the pole camera when
it did so on or about May 17, 2017. It shows that the pole camera
was a well-elaborated and targeted use of limited government
resources, and that the duration of the pole camera's use was
dictated by the needs of the investigation.
The investigation into Moore-Bush and Moore began in
January 2017 when a cooperating witness ("CW") tipped off the
Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") that
Nia Moore-Bush was trying to sell "dirty" firearms illegally, and
that Moore-Bush and her then-boyfriend (now-husband) Dinelson
Dinzey were trafficking heroin. The CW also stated that Dinzey
might be trafficking in cocaine. On January 23, 2017, the CW met
with Moore-Bush to examine two firearms.
Around February 2017, Moore-Bush and Dinzey began
residing at 120 Hadley Street in Springfield, Massachusetts, where
defendant Daphne Moore, Moore-Bush's mother, resided.34 ATF agents
had reason to believe that Moore-Bush and Dinzey were conducting
illegal arms and drug sales from the Hadley Street house.
34 The ATF concluded Moore-Bush's primary residence had
changed to 120 Hadley Street based on information from the CW, her
eviction for nonpayment at her prior apartment, Massachusetts RMV
records (both Moore-Bush and Dinzey's drivers' licenses listed the
Hadley Street house as their address), bank records, surveillance,
and Verizon Wireless records.
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The CW, wearing a recording device, met with Moore-Bush
at the house at 120 Hadley Street on May 4, 2017 as instructed by
Moore-Bush, and looked at the firearms in the garage in preparation
for purchasing them. During the meeting, Moore-Bush made
statements relating to her drug dealing, which the agents listening
to the recording device heard. The CW, again wearing a recording
device, returned to the house the next day, May 5, and purchased
four firearms from Dinzey, who was on the phone with Moore-Bush
during the transaction.
A few days later, on May 8, 2017, Moore-Bush and Dinzey
were driving on Route 91 North near the Vermont border when state
police stopped them for a traffic violation. During the stop, the
state police recovered 921 bags of heroin.
Law enforcement reviewed the suspects' criminal
histories as part of the investigation. Moore-Bush's criminal
history revealed that she had been arraigned on charges of improper
storage of a firearm, trafficking of narcotics, assault and
battery, larceny of a motor vehicle, uttering, larceny by check,
and forgery in Massachusetts state courts. Some of the narcotics
charges resulted from a traffic stop on November 4, 2014 where
Massachusetts State Police recovered 10 packs of heroin (1,000
single-dose bags) from the spare tire compartment of the vehicle.
All charges against her were ultimately dismissed.
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Dinzey's criminal history revealed convictions for
conspiracy to possess heroin with intent to distribute, possession
with intent to distribute heroin, possession with intent to
distribute cocaine, distribution of cocaine, assault and battery
on a police officer, and others.
Further, the ATF accessed phone calls between Moore-Bush
and Edgar Johnson, which were recorded while Johnson was in jail.
In one such phone call, on December 2, 2016, Johnson was recorded
advising Moore-Bush on the details of running a drug trafficking
business.
About a week after the traffic stop and two weeks after
the CW purchased firearms at 120 Hadley Street, on or around May
17, 2017, the agents installed the pole camera35 on the utility
pole outside of the Hadley Street house. The camera showed the
right side of the house, including the attached garage, a side
door, and the driveway. The front door was not in the camera's
view. A tree partially obstructed the camera's view when it had
leaves, a substantial portion of the time the camera was in place.
The pole camera video was streamed to a password-protected website
which ATF agents could view in real time. When they watched the
35 The concurrence asserts that the pole camera was
installed "surreptitiously," Concur. Op. at 8, but has not
identified any evidence in the record to support this assertion.
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video stream live, they could zoom, tilt, and pan the camera. At
night, the video had a lower resolution and showed less detail.
The pole camera remained in place until shortly after
the indictment issued against the defendants on January 11, 2018.
Law enforcement used the record created by the pole camera to
obtain stills and images of cars and individuals coming to and
departing from the Hadley Street house. The camera's zoom function
permitted the government on some occasions to read license plates
and see individuals' faces. Throughout the period that it was in
place, the pole camera provided further evidence of the defendants'
criminality. For example, on July 17, 2017, the pole camera
captured footage in the driveway of two male subjects, one of whom
appeared to be Dinzey, placing a white bag in the engine
compartment of a car rented by Moore-Bush, a known tactic of
narcotics dealers to conceal contraband.
The government used information learned from the pole
camera in its applications for Title III wiretaps and other
warrants relating to the investigation. This includes its
application for a warrant to search Dinzey's Facebook account
granted August 4, 2017; its application for a wiretap granted
November 9, 2017; its application for a wiretap granted November
27, 2017; its application for a wiretap granted December 14, 2017;
and its application for a search warrant of the 120 Hadley Street
house granted January 12, 2018.
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The concurrence emphasizes that the government did not
argue that it had probable cause to take the actions it did
regarding the pole camera. Concur. Op. at 7 n.2. The government
had no need to so argue because binding circuit and Supreme Court
precedent authorized the warrantless use of a pole camera for the
duration of the time that the government was actively conducting
its investigation. There has been no waiver by the government.
The concurrence disregards that both reasonable suspicion, and
likely probable cause, supported the installation of the pole
camera, and reasonable suspicion and probable cause supported the
duration of its use. Had the Supreme Court held that continued
pole camera recording of what was in public view was a search (in
actuality, the operative Supreme Court case law was that it was
not a search) then law enforcement would have met the probable
cause requirement to obtain a warrant.
II.
The Supreme Court's decision in Carpenter does not
support the concurrence's reasoning; to the contrary, Carpenter
forbids it. See 138 S. Ct. at 2220. Carpenter did not upend the
longstanding fundamental proposition of Fourth Amendment law, that
"[w]hat a person knowingly exposes to the public, even in his own
home or office, is not a subject of Fourth Amendment protection."
Katz v. United States, 389 U.S. 347, 351 (1967). Carpenter was
explicitly narrow and did not alter case law surrounding
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conventional technologies like pole cameras. It left undisturbed
the case law concerning use of pole cameras to capture what is in
public view. Further, differences between the cell site location
information ("CSLI") at issue in Carpenter and the pole camera
video in this case render an expectation of privacy in the
aggregate of a person's movements in the curtilage of their
residential neighborhood home unreasonable.
In order to demonstrate a legitimate expectation of
privacy, the defendants must show (1) that they had an actual,
subjective expectation of privacy and (2) that this subjective
expectation of privacy is one society is prepared to recognize as
objectively reasonable. See United States v. Rheault, 561 F.3d
55, 59 (1st Cir. 2009) (citing Smith v. Maryland, 442 U.S. 735,
740 (1979)). These defendants fail on both prongs.
A.
The concurring opinion contradicts Carpenter in a number
of ways. The Carpenter Court was explicit that "[o]ur decision
today is a narrow one." 138 S. Ct. at 2220. It went on to explain
that it expressed no view on technologies other than the CSLI at
issue in the case, and it did not "call into question conventional
surveillance techniques and tools, such as security cameras." Id.Pole cameras are certainly a conventional surveillance tool.
Moreover, Carpenter did not overrule the precedents the First
Circuit relied on when it upheld the use of pole camera
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surveillance in United States v. Bucci, 582 F.3d 108 (1st Cir.
2009). And Carpenter's specific reference to "security cameras"
as a technology whose use the decision did not disturb should
clearly encompass the case at hand.
Pole cameras are plainly a conventional surveillance
tool. The concurrence's portrayal of video surveillance as a novel
technique comparable to obtaining location tracking data from cell
service providers misconstrues reality. Pole cameras have been
described in circuit opinions since at least 1987, see, e.g.,
United States v. Cuevas-Sanchez, 821 F.2d 248, 250-51 (5th Cir.
1987), and in this circuit as early as 2003, see United States v.
Montegio, 274 F. Supp. 2d 190, 201 (D.R.I. 2003). In cases
stretching back decades, several circuits, including this one, had
upheld the constitutionality of pole cameras prior to Carpenter.
See Bucci, 582 F.3d at 116-17; United States v. Houston, 813 F.3d
282, 287-88 (6th Cir. 2016); United States v. Jackson, 213 F.3d
1269, 1280-81 (10th Cir.), vacated on other grounds, 531 U.S. 1033,
1033 (2000).
Pole cameras are routinely used by law enforcement
across the United States in order to conduct investigations and
have been for many years.36 Pole cameras often, as in this case,
36 See, e.g., United States v. Bregu, 948 F.3d 408, 411
(1st Cir. 2020) (noting use of pole camera outside suspect's
residence to gather evidence); United States v. Christie, 825 F.3d
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produce evidence which provides a basis for warrant and wiretap
applications. The Carpenter Court would certainly have been aware
of their use. The concurrence's reasoning that CSLI was used by
law enforcement prior to Carpenter, so other technologies extant
prior to Carpenter are implicated by its reasoning, renders
1048, 1067 (9th Cir. 2016) ("Before applying for the wiretaps, the
government also installed a pole camera outside the Ministry's
front entrance . . . ."); United States v. Gaskins, 690 F.3d 569,
574 (D.C. Cir. 2012) (noting use of pole camera in narcotics
conspiracy investigation); United States v. Foy, 641 F.3d 455, 461
(10th Cir. 2011) (noting use of pole camera in conspiracy
investigation); United States v. Marquez, 605 F.3d 604, 607 (8th
Cir. 2010) (noting use of pole cameras in drug trafficking
investigation); United States v. Zepeda-Lopez, 478 F.3d 1213,
1217, 1220 (10th Cir. 2007) (noting use of pole camera in drug
investigation); United States v. Price, 418 F.3d 771, 781-82 (7th
Cir. 2005) (noting use of pole camera in conspiracy investigation);
United States v. Gonzalez, Inc., 412 F.3d 1102, 1106 (9th Cir.
2005), amended on denial of reh'g, United States v. Gonzalez, Inc.,
437 F.3d 854 (Mem) (9th Cir. 2006) (noting use of pole cameras in
smuggling investigation); United States v. Moore, 281 F.3d 1279,
2001 WL 1692476, at *1 (5th Cir. Nov. 27, 2001) (unpublished)
(noting use of pole camera in drug dealing investigation); United
States v. Carraway, 108 F.3d 745, 749 (7th Cir. 1997) (noting use
of pole camera in investigation); United States v. Asghedom, 992
F. Supp. 2d 1167, 1168 n.2 (N.D. Ala. 2014) (noting use of pole
camera in drug investigation); United States v. Brooks, 911 F.
Supp. 2d 836, 837-39 (D. Ariz. 2012) (describing use of pole camera
in drug trafficking investigation); United States v. Lisbon, 835
F. Supp. 2d 1329, 1348 (N.D. Ga. 2011) (noting use of pole camera
in investigation); United States v. Tranquillo, 606 F. Supp. 2d
370, 375 (S.D.N.Y. 2009) (noting use of pole camera in corruption
investigation); United States v. Gonzalez De Arias, 510 F. Supp.
2d 969, 971 (M.D. Fla. 2007) (noting use of pole camera in drug
investigation); United States v. Le, 377 F. Supp. 2d 245, 259 (D.
Me. 2005) (noting use of pole camera in drug distribution
conspiracy investigation); Montegio, 274 F. Supp. 2d at 201 (noting
use of pole cameras in drug trafficking investigation).
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meaningless the Court's explicit exemption of conventional
techniques and tools of surveillance.
The concurrence would overrule circuit precedent in
Bucci, but Bucci is based on solid Supreme Court precedents which
are not undermined by Carpenter. See 138 S. Ct. at 2220. In
Bucci, a case with facts indistinguishable from the present case,
the First Circuit found that warrantless surveillance of the
curtilage of a home for eight months by a pole camera was not a
search under the Fourth Amendment. 582 F.3d at 116-17. In finding
that the defendant in that case had no objectively reasonable
expectation of privacy in the actions captured by the pole camera,
the court relied on a core principle of Fourth Amendment law
elucidated in Katz, that "[w]hat a person knowingly exposes to the
public . . . is not a subject of Fourth Amendment protection."
Bucci, 582 F.3d at 117 (quoting Katz, 389 U.S. at 351); see also
California v. Ciraolo, 476 U.S. 207, 213 (1986) ("The 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."). The Bucci court also relied on
Kyllo v. United States, where Justice Scalia reiterated this
principle, explaining its origins in the common law of England.
533 U.S. 27, 31-32 (2001). Carpenter did not disturb any of these
cases and did not disturb the fundamental principle that observing
what is knowingly exposed to public view is not a search. Katz's
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rule reflects the common and commonsense understanding of privacy
as "the state of being alone and not watched or interrupted by
other people." See Privacy, Oxford Learners Dictionaries,
https://www.oxfordlearnersdictionaries.com/us/definition/english
/privacy (last visited May 26, 2022). It also provides a workable
standard for courts and law enforcement that protects privacy.
Carpenter's reference to "security cameras" as an
example of a traditional surveillance tool whose use it would not
disturb clearly encompasses the pole camera footage at issue here.
138 S. Ct. at 2220. The concurrence parses this language in order
to argue that the Court was referring to "private security cameras
guarding private property" rather than covertly placed pole
cameras. Concur. Op. at 80. The Supreme Court in Carpenter said
no such thing. Further, the concurrence's purported distinction
is itself erroneous.37 The concurrence draws a distinction which
37 The concurrence argues that the opinion's reference to
security cameras is irrelevant to pole cameras in part because
"conventional security cameras are typically placed so that they
are overt -- not hidden or hard-to-spot, as the camera here was."
Concur. Op. at 81. The argument is factually and legally
unsubstantiated. The camera here was on a publicly visible utility
pole on a public street. It was not hidden. The record reveals
nothing about whether the majority of private security cameras are
hidden or not. That simply was not an issue in the district court
and the parties have been deprived of an opportunity to create any
record, if the issue were relevant at all. The logic of the
concurrence's reasoning is that police can contravene an
individual's reasonable expectation of privacy merely by making
the camera less visible. The Constitution does not require law
enforcement to announce themselves with a brass band every time
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would subject the less affluent who live on public streets, who
perhaps cannot afford "private security cameras" to deter or detect
crime, to lesser law enforcement than those in wealthy
neighborhoods who can and do.
B.
The concurrence waves away the fact that Carpenter
concerned only CSLI, explaining that its reasoning is nevertheless
applicable to the case at hand. Concur. Op. at 63-64. In so
doing, the concurrence ignores features of CSLI as business records
that were crucial to the Court's reasoning. In Carpenter, the
Court rejected the government's assertion that CSLI was not subject
to a reasonable expectation of privacy.38 The Carpenter Court
found that though cellphone users ostensibly voluntarily share
their location information with providers, people retain their
expectation of privacy in the whole of their movements. 138 S.
Ct. at 2217. The Court reasoned that people cannot really be said
to share their location with cellphone companies, because CSLI is
generated automatically and incidentally when one carries a phone,
they undertake an investigation. If a person does not have a
reasonable expectation of privacy in her actions, it does not
matter if the police use a covert means of surveillance to capture
such actions. The Fourth Amendment does not guarantee that
suspects have fair notice that an investigation is ongoing.
38 The theory underlying the government's argument was that
a person generally does not have an expectation of privacy in
information voluntarily turned over to third parties. See Smith
v. Maryland, 442 U.S. 735, 743-44 (1979).
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and carrying a phone is essentially a requirement for participation
in modern life. Id. at 2220. The Court reasoned that the use of
CSLI allows creation of a comprehensive map of a person's movements
with "just the click of a button." Id. at 2217-18. The Court
also relied on the data's "retrospective quality," limited only by
companies' data storage policies, recognizing that owning and
carrying a cellphone makes it as if every cellphone user has been
perfectly tailed for years, and that police could simply tap into
this repository of detailed information at will. Id. at 2218.
The information captured by the pole camera in this case
is distinct from the CSLI data at issue in Carpenter. The Court
in Carpenter reasoned that because most people must carry
cellphones everywhere they go, and because cellphones share the
user's location with the service provider automatically without
any affirmative action on the user's part, it does not make sense
to say that cellphone users have consented to sharing a
comprehensive record of their movements with cellphone companies.
Id. at 2220.
By contrast, any purported expectation of privacy in
observations of a house unshielded from view on a public street is
not in the least like the expectation of privacy in CSLI data by
cellphone users. People can take measures, as defendants here did
not, to avoid being seen by neighbors or by passersby. Absent
such steps, these defendants certainly knew that when they stepped
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outside of their house, their activities were exposed to public
view. Unlike the automatic sharing of location data by cellphones
carried everywhere as a matter of course, people are actively aware
when they have entered the public view upon leaving their houses.
Eight months of pole camera surveillance cannot be
generated with the push of a button. In arguing that pole camera
data is similar to CSLI because it is cheap and easy to produce,
the concurrence is mistaken.39 Concur. Op. at 65-66. Pole cameras
are not cost-free, and the expenditure is justified only if law
enforcement has reason to believe that the camera will provide
information to assist investigators. If the camera provides such
information, as was true here, the camera remains so long as it is
useful. If the camera does not provide such information, it is
removed.
Carpenter's concern about the ease of creation of
records of people's movements is linked to what it called the
39 In Carpenter, the Court confronted law enforcement
gaining warrantless access to a privately created, maintained, and
funded database of the comprehensive movements of millions of
Americans for the preceding five years that cellular service
providers typically maintained. 138 S. Ct. at 2218. The Court
reasoned that, given such access, the state's ability to access
round-the-clock surveillance would not be resource-limited in the
way that investigations are normally resource-limited. Id.Placing and maintaining the millions of pole cameras, not to
mention storing the years of video, that it would take to create
anything approaching cellular service providers' databases would
entail such an enormous expenditure of scarce resources as to
ensure that would never happen.
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"retrospective quality" of CSLI data, a concern which is not
implicated in this case. Id. at 2218. In Carpenter, the Court
recognized that the vast majority of people carry cellphones
everywhere that they go, and their cell service providers typically
stored five years of CSLI for each cellphone user. Allowing law
enforcement to access such data allows them to "travel back in
time to retrace a person's whereabouts." Id. Here, the police
suspected Moore-Bush of illegal firearm and narcotics dealings and
placed a pole camera in front of her residence in order to
investigate their suspicions. All data collection was
prospective, and it targeted these particular suspects. The police
did not tap into a vast repository of data collected by and at the
expense of third parties. The concurrence disregards this
distinction by erroneously concluding that the government, in
placing a pole camera in front of a single residence for eight
months, is engaging in surveillance on par with a cellphone
company's storage of millions of users' comprehensive movements
for five years. Concur. Op. at 70. This comparison does not hold
ground. Placing a single camera on a public street outside of a
single house does not create a vast database allowing police to
tap into the complete movements of millions of people with the
push of a button, which was the Court's concern in Carpenter.
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C.
The concurrence attempts to justify its result by
arguing that one has a reasonable expectation of privacy in the
whole of their movements occurring in the curtilage of their
home. Again, the concurrence's reasoning does not support this
result. The defendants did not manifest a subjective expectation
of privacy in their movements in the curtilage of their home. Nor
would it have been objectively reasonable for them to expect
privacy in such movements.
The concurrence declares that Supreme Court precedent
does not prevent it from combining the subjective and objective
inquiries, reasoning that so doing will avoid the problem of the
Fourth Amendment meaning different things in different contexts.
Concur. Op. at 29. This is not what the Supreme Court has held.
See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654 (1995)
("The Fourth Amendment does not protect all subjective
expectations of privacy, but only those that society recognizes as
'legitimate.' What expectations are legitimate varies, of course,
with context[.]" (citation omitted)). To be protected by the
Fourth Amendment, an expectation of privacy must be subjective,
but that alone is not sufficient; it must also be objectively
reasonable in the given context. It is important to preserve the
distinction. Law enforcement cannot always know whether someone
subjectively expects privacy, but they can more easily determine
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whether an expectation of privacy is one that society is prepared
to accept as reasonable. The concurrence is concerned about, for
example, different Fourth Amendment rules for different types of
housing. Katz already provides a clear line that can be applied
uniformly across various contexts: there is no expectation of
privacy in what is knowingly exposed to the public view. 389 U.S.
at 351. The concurrence's approach undercuts privacy by eroding
this bright line.
In Carpenter, the Supreme Court recognized that, even in
the public sphere, a person could reasonably expect privacy in the
"whole of their physical movements." 138 S. Ct. at 2217. The
Court noted that before the "digital age," a suspect could be
tailed for a brief time, but a person would reasonably not expect
all of their movements in public to be tracked. Id. When a person
leaves the house and enters the public realm, she knows that people
will see her activities, but she does not expect that the passerby
who sees her at the grocery store will also see her at the bank,
the political rally, the religious meeting, or the doctor's office.
This is particularly so if these trips are taken over a number of
days.
In contrast, the pole camera only captured the
defendants' and coconspirators' movements in one place in the
public view and did not track their movements once they left the
curtilage of 120 Hadley Street. There can be no expectation of
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privacy in the aggregate of these movements because they occur in
one place where a person expects to encounter and be seen by people
again and again. The defendants living on a public street
alongside neighbors faced the reality that neighbors would come to
know the patterns of when they left in the morning and returned in
the evening. They would also know when an unfamiliar car was
parked outside, and when the defendants were likely not in
residence because the yard was overgrown, and packages piled up on
the front porch. These observations do not violate the defendants'
reasonable expectations of privacy.
That details about a person's life might be deduced from
an aggregation of activities observed in the curtilage of the home
does not imply a reasonable expectation of privacy.40 The
concurrence argues that
40 Both the district court and the concurring opinion rely
heavily on the proposition that a pole camera may reveal "intimate"
details and mundane details of a suspect's life. Concur. Op. at
64. In Carpenter, the Court stated that CSLI data "provides an
intimate window into a person's life, revealing not only his
particular movements, but through them his 'familial, political,
professional, religious, and sexual associations.'" 138 S. Ct. at
2217 (quoting United States v. Jones, 565 U.S. 400, 415 (2012)
(Sotomayor, J., concurring)). It is not difficult to see how the
expectation of privacy in these kinds of details which are revealed
in the curtilage of one's home must be different than the
expectation of privacy in such details revealed by a record of
someone's entire movements over a number of days. Any political,
professional, religious, or sexual associations which are revealed
in the curtilage of one's home are known to be exposed to public
scrutiny. One does not put up a yard sign endorsing a political
candidate or set out decorations on the porch for a religious
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while it is true that one has no reasonable
expectation of privacy in the discrete moments
of intimacy that may occur in the front of
one's home -- from a parting kiss to a teary
reunion to those most likely to cause shame
-- because of what a passerby may see through
casual observation, it does not follow that
the same is true with respect to an
aggregation of those moments over many months.
Concur. Op. at 41. This does not ring true. A next-door neighbor
could easily observe both the sad parting and the joyous reunion.
And while doubtless people would prefer that their neighbors did
not see the moments "most likely to cause shame," they cannot
reasonably expect people living within sight and sound not to, for
example, hear the screaming matches, see the front door slam,
notice the absence of one partner's car for weeks, and draw the
obvious inference.
That people who live on public streets will be observed
over the months and years by the same people and others necessarily
informs expectations of privacy and affects what actions they take
in the curtilage of their home.41 In public, we are surrounded by
holiday with the expectation that such associations will remain
private.
41 For example, a woman not ready to announce her pregnancy
to the world might feel comfortable shopping at a baby store in
public, but might carefully conceal the items she bought before
carrying them from her trunk to her front door to evade neighbors'
prying eyes. Someone struggling with alcohol addiction might
readily purchase alcohol in person at liquor stores, but might
take great pains to put spent bottles at the bottom of the
recycling bin so that neighbors do not see them piled up week after
week. And so on.
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others, but the public is an ever-shifting group; not only will
the people at the grocery store likely not be the same people at
the bank, but the people at the grocery store on Monday will mostly
not be the same people at the grocery store on Wednesday. The
concurrence attempts to conflate the communal experience of living
in a residential neighborhood where houses are situated close
together and lawns are not fenced or walled in with the relatively
anonymous experience of moving between various public spaces over
a number of days.
We disagree with the concurrence's contention that it
does not matter that a person living in a neighborhood would expect
their neighbors (even the ones that mind their own business) to
observe them moving around in the curtilage of their homes, to
remember their various observations over time, and to draw
inferences from these observations. Concur. Op. at 34-35. It is
not determinative for the expectation of privacy analysis that
such a "record" is in some respects less complete and less
searchable than digital video. It is not objectively reasonable
to expect privacy in the whole of your movements when you know
many of those movements, even if not all, can and will be observed
by the same people day in and day out. To live in such a
neighborhood and take no steps to prevent observation cannot be
understood as manifesting a subjective expectation of privacy.
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The concurrence contends that two other characteristics
of pole camera surveillance make it violate expectations of
privacy. The concurrence asserts that the curtilage of the home
is sacred in Fourth Amendment jurisprudence, Concur. Op. at 39-
40, 64-65, and it asserts that a pole camera creates a perfect and
comprehensive record of a person's movements in the curtilage,
Concur. Op. at 41-43. Neither of these justifications holds up.
Admitting that the depth of information gleaned from
surveilling the front of someone's home is less than that of round-
the-clock surveillance of their movements, the concurrence reasons
that a greater expectation of privacy in the home counterbalances
this deficit. Not so. As explained above, the fact that this
surveillance is occurring in the curtilage of the home in a
residential neighborhood renders an expectation of privacy in the
aggregate of one's movements less reasonable, not more. Moreover,
Carpenter did not concern or rely at all on the curtilage
purportedly being encompassed by the "sanctity" of the home.
The case the concurrence primarily relies on for this
argument, Florida v. Jardines, 569 U.S. 1 (2013), is about physical
intrusions into the curtilage of the home, not observation from a
public vantage point.42 The concurrence's effort to hybridize two
42 The concurrence also misreads Kyllo. In that case, the
Court found that the use of a thermal imaging device to detect
details about the inside of a house was a search under the Fourth
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threads of Fourth Amendment doctrine, the Carpenter aggregate
expectation of privacy and the privacy of the home from trespass,
is inadequate. Generally, a person has no expectation of privacy
in what has been knowingly exposed to the public, whether it is
"in his own home or office," in the curtilage of his home, or in
the town square. Katz, 389 U.S. at 351.
The concurrence attempts to treat Carpenter's "whole of
[a person's] physical movements," 138 S. Ct. at 2217, as applicable
to a person's movements solely in the curtilage of their home.
There is no contention that people spend even close to the majority
of their time in the curtilage of their homes, so the contention
that the whole of a person's movements and their movements in the
Amendment. 533 U.S. at 40. However, the Court's holding
explicitly was tied to physical intrusion. Id. (holding that using
a device "not in general public use, to explore details of the
home that would previously have been unknowable without intrusion"
constitutes a search). Moreover, the Court emphasized that it was
maintaining a "firm line at the entrance to the house," id.
(quoting Payton v. New York, 445 U.S. 573, 590 (1980)), so the
concurrence's extrapolation from Kyllo's holding regarding
information about the walled-off interior of the home to publicly
visible movements outside the home fails. Concur. Op. at 40 n.15.
The Kyllo Court explained that the search at issue did not present
any of the difficulties of applying the Katz reasonable expectation
of privacy test because "in the case of the search of the interior
of homes . . . there is a ready criterion, with roots deep in the
common law, of the minimal expectation of privacy that exists, and
that is acknowledged to be reasonable." Id. at 34. It contrasted
the interior of the house with places where expectations of privacy
were less clear including "telephone booths, automobiles, or even
the curtilage and uncovered portions of residences." Id.
- 121 -
curtilage are equivalent fails for that, as well as other, reasons.
See United States v. Tuggle, 4 F.4th 505, 524 (7th Cir. 2021)
("[T]he stationary cameras placed around [the defendant]'s house
captured an important sliver of [his] life, but they did not paint
the type of exhaustive picture of his every movement that the
Supreme Court has frowned upon."); see also United States v. Hay,
No. 19-20044-JAR, 2022 WL 1421562, at *7 & n.62 (D. Kan. May 5,
2022) ("Far from revealing the 'whole of his physical movements,'
the pole camera surveillance revealed just a small part of that
much larger whole, even if an important one." (quoting Carpenter,
138 S. Ct. at 2219)).
Neither does the fact that a pole camera creates a record
justify the concurrence's departure from precedent. The
concurrence argues that "[n]o casual observer who is merely passing
by can observe (let alone instantly recall and present for others
to observe) the aggregate of the months of moments . . . that
uniquely occur in front of one's home." Concur. Op. at 41. The
concurrence invokes the casual passerby but ignores the neighbors,
including, for example, the retiree who has lived across the street
for years and monitors activity seen from her windows and may
recall or even record her observations.
There is no Fourth Amendment problem with police
augmenting their investigation with technologies commonly used,
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including to create records.43 See, e.g., Kyllo, 533 U.S. at 34.
Video cameras have been routinely used by law enforcement and the
public for decades. Moreover, the concurrence repeatedly insists
that digital records are more perfect, an argument that is legally
irrelevant and factually untrue. Even eight months of continuous
footage is not a comprehensive record of movements in the curtilage
of the home. The camera is limited to what can be viewed from the
lens in its fixed position. In this case, the camera's view was
sometimes obscured by foliage, and it only captured a partial view
of the front of the house, which did not include the front door.
In many cases a neighbor, or the concurrence's "casual observer
43 The concurrence relies on Kyllo to argue that a video
camera enhances law enforcement's perception beyond what the
Fourth Amendment allows. Concur. Op. at 85. Our colleagues once
again misread Kyllo. The Court there was focused on "sense-
enhancing technology," noting that "the lawfulness of warrantless
visual surveillance of a home has . . . been preserved." 533 U.S.
at 32, 34. There is no argument in this case that the pole camera
could see anything the human eye could not, unlike the thermal
imaging device that the Court considered in Kyllo, which captured
infrared radiation invisible to the human eye. Our concurring
colleagues argue that because a camera creates a record that they
contend is more easily searchable and more infallible than human
memory, or notes taken by an officer on a stakeout, that it is an
impermissible enhancement of human perception. This is
unsupportable, for human memory and recordkeeping ability are not
senses; devices like tape recorders, cameras, and video cameras,
which record only what the human senses can detect, are not the
"sense-enhancing technolog[ies]" that were the Court's concern in
Kyllo. Further, in Kyllo the court referred only to technologies
"not in general public use," id. at 40, which video cameras
indisputably are.
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who is merely passing by," would have a more complete view of the
entirety of the house's curtilage.
As a final note, the concurrence is understandably
concerned about advances in technology and their implications for
the future. Concur. Op. at 99. But the advances in video camera
technology since our ruling in Bucci, or the Supreme Court's ruling
in Carpenter, do not justify the concurrence's position. Law
enforcement has long had the capacity to access pole camera video
remotely, see Gonzalez De Arias, 510 F. Supp. 2d at 971, and to
use pole cameras to conduct surveillance over time, see Gonzalez,
Inc., 412 F.3d at 1106 (noting use of pole cameras to conduct
"about 25,000 hours" of video surveillance). That those capacities
are sharpening does not mean that the pole cameras of today
represent a different technology than the pole cameras around the
time of the Carpenter decision when the Supreme Court specifically
exempted "conventional surveillance techniques and tools." 138 S.
Ct. at 2220. The incremental improvements over the years from
pole cameras to better pole cameras are nothing like the rapid
transformation of cellphones to location-tracking devices which
are "indispensable to participation in modern society" for people
to carry around everywhere they go. Id.III.
The concurrence's reasoning would have many negative
consequences. It would radically alter the surveillance tools
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available to police. It would needlessly complicate Fourth
Amendment doctrine and would open accepted policing tools and
techniques to challenge. It would place law enforcement at a
disadvantage to the rest of the population. It is not hard to
believe that if law enforcement is so hampered, neighbors would be
encouraged to assume the burdens of policing to keep their own
neighborhoods safe.
The investigation in this case was targeted and
proportional to the police's needs. Here, police reasonably
investigating a house that ultimately was determined to be a site
of illegal drug and firearm transactions over a long period of
time utilized a conventional tool of surveillance to gather
evidence. Under the concurrence's rule, police would no longer be
allowed to use their own judgment for how to investigate crimes
occurring in the public view. This is in spite of the fact that
this circuit has long recognized the difficulty of investigating
drug conspiracies and has noted that "[b]ecause drug trafficking
is inherently difficult to detect and presents formidable problems
in pinning down the participants and defining their roles,
investigative personnel must be accorded some latitude in choosing
their approaches." United States v. Santana-Dones, 920 F.3d 70,
76 (1st Cir. 2019) (alteration in original) (quoting United States
v. David, 940 F.2d 722, 728 (1st Cir. 1991)).
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It is unfortunate that, under the concurrence's
reasoning, law enforcement would be deprived of the use of an
ordinary law enforcement tool -- pole camera video -- at a time
when video cameras are becoming more common and more used. Indeed,
there are now often demands that officers wear video cameras on
their persons as they perform their duties. See M.D. Fan, Justice
Visualized: Courts and the Body Camera Revolution, 50 U.C. Davis
L. Rev. 897, 901 (2017) (noting that "a police body camera
revolution is fast unfolding"). The cellphones that the Court in
Carpenter called "almost a 'feature of human anatomy'" generally
have video cameras built in. 138 S. Ct. at 2218 (quoting Riley v.
California, 573 U.S. 373, 385 (2014)). People are frequently
filmed in public, with or without their consent, and these videos
can be posted online and viewed thousands of times. A basic model
of one brand of doorbell security camera can be purchased for just
$51.99. Video Doorbell Wired, Ring, https://ring.com/
products/video-doorbell-wired (last visited May 26, 2022).
Millions of people have already equipped their front doors with
cameras. See J. Herrman, Who's Watching Your Porch?, N.Y. Times
(Jan. 19, 2020), https://www.nytimes.com/2020/01/19/style/ring-
video-doorbell-home-security.html. The CSLI data at issue in
Carpenter is not available to the average person; digital video
cameras, both large and undetectably small, certainly are. It is
counterproductive that, as more and more people are placing cameras
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on their houses and businesses, and even filming unpleasant or
violent interpersonal interactions on their cellphones, the
concurrence would make pole cameras less available to law
enforcement.
An appellate court must faithfully apply the law as set
out by the Supreme Court. The concurrence violates that rule. The
concurrence also assumes the policymaking role of elected
officials. It is the role of legislatures, which are more
flexible, adaptable, and responsive than courts, to regulate
swiftly evolving technologies, as many already have. See, e.g.,
A. Jarmanning, Boston Bans Use of Facial Recognition Technology.
It's the 2nd-Largest City To Do So, WBUR (June 24, 2020),
https://www.wbur.org/news/2020/06/23/boston-facial-recognition-
ban.
IV.
Bucci is scarcely over a decade old, and the concurrence
would have this circuit come out the opposite way on
indistinguishable facts, despite the fact that Carpenter certainly
does not require this outcome. Stare decisis ("to stand by things
decided") "requires us, absent special circumstances, to treat
like cases alike." June Med. Servs. L.L.C. v. Russo, 140 S. Ct.
2103, 2134 (2020) (Roberts, C.J., concurring in the judgment). It
is "an established rule to abide by former precedents, where the
same points come again in litigation; as well to keep the scale of
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justice even and steady, and not liable to waver with every new
judge's opinion." Id. (quoting 1 W. Blackstone, Commentaries on
the Laws of England 69 (1765)). This is to ensure that "decisions
reflect the 'evenhanded' and 'consistent development of legal
principles,' not just shifts in the [c]ourt's personnel." Collins
v. Yellen, 141 S. Ct. 1761, 1801 (2021) (Kagan, J., concurring in
part and concurring in the judgment) (quoting Payne v. Tennessee,
501 U.S. 808, 827 (1991)). It is true that the court sitting en
banc may depart from principles of stare decisis. See Arecibo
Cmty. Health Care, Inc. v. Comm. of P.R., 270 F.3d 17, 23 (1st
Cir. 2001). But the concurrence's reasoning unnecessarily injects
instability into our circuit's law. The concurrence is challenging
and undermining the Supreme Court cases on which Bucci
rested. Those cases, as described before, are sound. Only the
Supreme Court can overrule those cases.
We are not the only federal court to confront whether
Carpenter changed the constitutionality of pole cameras. The Sixth
Circuit concluded that it did not. See United States v. May-Shaw,
955 F.3d 563, 567 (6th Cir. 2020) (holding that the argument that
"long-term video surveillance of a home's curtilage is problematic
under the Fourth Amendment" "is foreclosed by this circuit's case
law, which has consistently held that this type of warrantless
surveillance does not violate the Fourth Amendment"), cert.
denied, 141 S. Ct. 2763 (2021); see also Hay, 2022 WL 1421562, at
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*3, *7 (finding that "pole camera surveillance . . . does not
present the same privacy concerns that animated the majority in
Carpenter and the concurrences in Jones," and rejecting the
argument that Carpenter overruled Tenth Circuit precedent
permitting warrantless pole cameras). The Seventh Circuit
considered as a matter of first impression whether Carpenter
rendered the use of three pole cameras capturing a total of
eighteen months of footage a search and found that it did not.
See Tuggle, 4 F.4th at 511 ("[T]he government's use of a technology
in public use, while occupying a place it was lawfully entitled to
be, to observe plainly visible happenings, did not run afoul of
the Fourth Amendment."). We should follow our sister circuits'
lead. Carpenter plainly does not require the concurrence's
reasoning and provides no basis for ignoring established
principles of stare decisis.
It is clear in this case that the defendants did not
have a subjective expectation of privacy, nor would it have been
objectively reasonable for them to. If new constitutional
durational limits are to be set on the use of long-used, widely-
available technology that detects only what is plainly in the
public view, it is for the Supreme Court to set those limits.
V.
We concur in the reversal of the district court's grant
of the motions to suppress.
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