United States v. Moore-Bush

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
Howard, Chief Judge,
Lynch and Barron, 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, Jessie J. Rossman, Kristin M. Mulvey,
American Civil Liberties Union Foundation of Massachusetts, Nathan
Freed Wessler, Brett Max Kaufman, and American Civil Liberties
Union Foundation on brief for American Civil Liberties Union and
American Civil Liberties Union of Massachusetts, amici curiae.
Trisha B. Anderson, Alexander A. Berengaut, Jadzia Pierce,
and Covington & Burling LLP on brief for Center for Democracy &
Technology, amicus curiae.
June 16, 2020
LYNCH, Circuit Judge. This appeal by the prosecution
raises the question of whether the Supreme Court's opinion in
Carpenter v. United States, 138 S. Ct. 2206 (2018), a cell phone
location automatic tracking technology case, provides a basis for
departing from otherwise binding and factually indistinguishable
First Circuit precedent in United States v. Bucci, 582 F.3d 108
(1st Cir. 2009), and Supreme Court precedent, including Katz v.
United States, 389 U.S. 347 (1967), on which Bucci is based. In
departing from that precedent and suppressing evidence obtained
from a pole camera, the district court erred by violating the
doctrine of stare decisis.
Under the doctrine of stare decisis, all lower federal
courts must follow the commands of the Supreme Court, and only the
Supreme Court may reverse its prior precedent. The Court in
Carpenter was concerned with the extent of the third-party
exception to the Fourth Amendment law of reasonable expectation of
privacy and not with the in-public-view doctrine spelled out in
Katz and involved in this case.
Carpenter was explicit: (1) its opinion was a "narrow"
one, (2) it does not "call into question conventional surveillance
techniques and tools," and (3) such conventional technologies
include "security cameras." Carpenter, 138 S. Ct. at 2220. Pole
cameras are a conventional surveillance technique and are easily
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thought to be a species of surveillance security cameras. Thus,
Carpenter, by its explicit terms, cannot be used to overrule Bucci.
The district court erred for other separate reasons as
well. The Bucci decision firmly rooted its analysis in language
from previous Supreme Court decisions, including Katz, Smith v.
Maryland, 442 U.S. 735 (1979), California v. Ciraolo, 476 U.S. 207
(1986), and Kyllo v. United States, 533 U.S. 27 (2001). Bucci,
582 F.3d at 116-17. The Court in Carpenter was clear that its
decision does not call into question the principles Bucci relied
on from those cases. Carpenter, 138 S. Ct. at 2213-19.
The district court also transgressed a fundamental
Fourth Amendment doctrine not revoked by Carpenter, that what one
knowingly exposes to public view does not invoke reasonable
expectations of privacy protected by the Fourth Amendment. This
understanding, as explained by Justice Scalia in Kyllo, was part
of the original understanding of the Fourth Amendment at the time
of its enactment. Kyllo, 533 U.S. at 31-32.
Affirming the district court's order would mean
violating the law of the circuit doctrine, that "newly constituted
panels in a multi-panel circuit court are bound by prior panel
decisions that are closely on point." San Juan Cable LLC v. P.R.
Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010). Although there are two
exceptions to the doctrine, "their incidence is hen's-teeth-rare."
Id. And neither exception is applicable here.
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The argument made in support of the district court's
suppression order is that the logic of the opinion in Carpenter
should be extended to other technologies and other Fourth Amendment
doctrines, and this extension provides a basis to overturn this
circuit's earlier precedent in Bucci. Nothing in Carpenter's
stated "narrow" analysis triggers the rare second exception to the
law of the circuit doctrine. Carpenter, 138 S. Ct. at 2220.
The defendants thus ask us to violate the vertical rule
of stare decisis, that all lower federal courts must follow the
commands of the Supreme Court and that only the Supreme Court may
reverse its prior precedent, and the law of the circuit, binding
courts to follow circuit precedent. See Bryan A. Garner et al.,
The Law of Judicial Precedent 21-43 (2016). Affirming the district
court would also violate the original understanding of the Fourth
Amendment.
I.
A. The Investigation and Indictments
The following facts are undisputed. Following a tip
from a cooperating witness ("CW"), the Bureau of Alcohol, Tobacco,
Firearms, and Explosives ("ATF") began investigating defendant Nia
Moore-Bush in January 2017 for the unlicensed sale of firearms.
About a month into the investigation, in February 2017, Moore-Bush
and her then-boyfriend, later-husband, Dinelson Dinzey moved in
with Moore-Bush's mother, defendant Daphne Moore, at 120 Hadley
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Street in Springfield, Massachusetts, in a quiet residential
neighborhood. At the time, Moore was a lawyer and Assistant Clerk
Magistrate for the Hampden County, Massachusetts, Superior Court.
Moore-Bush and Dinzey lived at the property "off and on" for the
period relevant to this appeal.
The government had evidence that 120 Hadley Street,
Moore's property, was the site of illegal activity even before
installation of the pole camera. For example, on May 5, 2017, the
CW, acting on the government's orders, wore a recording device and
purchased four guns illegally from Moore-Bush, through Dinzey, at
that location.
Approximately two weeks later, on or about May 17, 2017,
ATF installed a camera towards the top of the public utility pole
across the public street from the unfenced-in house at 120 Hadley
Street (the "pole camera"). The record is silent as to whether
the camera was visible. The camera was used until mid-January
2018, when Moore-Bush and Dinzey were arrested. Investigators did
not seek any judicial authorization to install the pole camera and
did not need to do so under the law at that time in May of 2017.
The images from the pole camera captured one side of the front of
Moore's house. The camera did not capture the house's front door;
it did show the area immediately in front of the side door, the
attached garage, the driveway to the garage, part of the lawn, and
a portion of the public street in front of the house. A tree in
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the front yard, when it had leaves, partially obstructed the
camera's view.
The government also from time to time had investigators
conduct physical surveillance of these same areas, and presumably
more areas, from the public street. Those surveillance officers
could see everything the pole camera could see, and even more.
The tree, when it had leaves, did not obstruct their view. The
record is silent as to whether the officers on the street used
cameras, binoculars, or the like, but during physical surveillance
they were often close enough to observe and record license plate
numbers of vehicles in the driveway.
The district court declined to hold an evidentiary
hearing on the technical capabilities of the pole camera;
nonetheless, the following is established by the record. The pole
camera operated 24/7. Officers could access the video feed either
live or via recordings. When they were watching the pole camera's
live stream, but only then, officers could control the camera's
zoom, pan, and tilt features remotely, akin to what an observer on
the street could see with or without visual aids. The zoom feature
was powerful enough for officers observing live to read the license
plates on cars parked in the driveway. The camera's resolution
was much lower at night in the darkness. Regardless of the zoom
feature, the pole camera could not capture anything happening
inside of the house. Everything it captured was visible to a
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passerby on the street. The pole camera did not and could not
capture audio, and so captured no sound, even sounds which could
be heard on the street. The record does not indicate what the
pole camera looked like or its manufacturer.
The camera did not cover or capture all aspects of life
at 120 Hadley Street. According to an affidavit from a government
investigator appended to one of the wiretap applications, the pole
camera footage was only of limited use because it captured just a
portion of the front of the house, was partially obstructed by a
tree, and had to be monitored live in order to use the zoom feature
to see faces, license plates, and other details clearly.
The government used different investigative tools over
time to investigate Moore-Bush and those thought to be co-
conspirators at this location, including using a CW and having
officers conduct physical surveillance of the property. Warrants
were obtained, based in part on the pole camera evidence. Pursuant
to warrants, law enforcement tracked suspects' locations using
cell phone location data. Pursuant to warrants, investigators
mounted GPS trackers on suspects' vehicles. Pursuant to a warrant,
officers searched the private contents of Dinzey's Facebook
account. Pursuant to court orders, officers installed pen
registers and trap and trace devices on several cell phones. They
received judicial authorization to wiretap several phones. They
also listened to consensually recorded jail calls made by Moore's
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long-time romantic partner, who they believed was also involved in
illegal activities; looked through discarded trash; and subpoenaed
financial and other records.
The pole camera recorded useful evidence throughout its
duration. The record shows that officers included evidence from
the pole camera, along with many other pieces of evidence, in
successful wiretap and search warrant applications starting in
July 2017 and continuing throughout the fall and winter. This
usefulness explains the eight-month duration of the use of the
camera.
By the end of 2017, the government was prepared to bring
charges that Moore-Bush and Dinzey were trafficking narcotics from
Springfield to Vermont, where they would exchange drugs for cash,
firearms, and other valuables. A federal grand jury indicted
Moore-Bush, Dinzey, and three others from Vermont as co-
conspirators, but not the mother Moore, on January 11, 2018, for
conspiracy to distribute and possess with intent to distribute
heroin and twenty-eight grams or more of cocaine base, in violation
of 21 U.S.C. §§ 846 and 841(b)(1)(B)(iii). Moore-Bush and Dinzey
were arrested the following day. The pole camera, which at this
point had been up for about eight months, was removed soon after
her arrest, in "mid-January 2018."
Over the course of 2018, the government gathered
evidence that Moore was involved in her daughter's drug trafficking
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scheme, in part based on evidence that Moore-Bush was depositing
cash from her drug sales into bank accounts in Massachusetts and
Vermont held by Moore in trust for Moore-Bush. Almost a year after
the original indictment, on December 20, 2018, the grand jury
returned a superseding indictment naming Moore-Bush,1 Dinzey, the
three Vermont co-conspirators, and adding three other co-
conspirators and Moore, Moore-Bush's mother.2
Moore was charged with one count of conspiracy to
distribute and possess with intent to distribute heroin, cocaine,
and cocaine base, in violation of 21 U.S.C. § 846 (Count One); one
count of distribution and possession with intent to distribute
heroin, cocaine, and cocaine base, in violation of 21 U.S.C.
§ 841(a)(1) on November 17, 2017 (Count Three); one count of money
1 Moore-Bush was charged with one count of conspiracy to
distribute and possess with intent to distribute heroin, cocaine,
and 280 grams or more of cocaine base, in violation of 21 U.S.C.
§§ 846 and 841(b)(1)(A)(iii) (Count One); five counts of
distribution and/or possession with intent to distribute
narcotics, in violation of 21 U.S.C. § 841(a)(1) (Counts Two
through Six); two counts of money laundering conspiracy, in
violation of 18 U.S.C. § 1956(h) (Counts Seven and Eight); seven
counts of money laundering, in violation of 18 U.S.C. § 1956(a)(1)
(Counts Eleven and Fourteen through Nineteen); one count of
conspiracy to deal firearms without a license, in violation of 18
U.S.C. § 371 (Count Twenty); two counts of dealing firearms without
a license, in violation of 18 U.S.C. § 922(a)(1)(A) (Counts Twenty-
One and Twenty-Two); and one count of aiding and abetting the
possession of a firearm by a felon, in violation of 18 U.S.C.
§§ 922(g)(1) and 2 (Count Twenty-Three).
2 The superseding indictment also removed one of the
original Vermont co-conspirators.
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laundering conspiracy in financial transactions in Hampden County,
Massachusetts, Washington County, Vermont, and elsewhere, in
violation of 18 U.S.C. § 1956(h) (Count Eight); multiple counts of
money laundering in those same locations, in violation of 18 U.S.C.
§ 1956(a)(1) with her daughter at T.D. Bank (Counts Fourteen
through Nineteen); one count of making false statements to federal
agents around January 12, 2018, in violation of 18 U.S.C. § 1001
(Count Twenty-Four); and a drug forfeiture charge.
B. The Motions to Suppress and District Court Opinion
On April 22, 2019, Moore moved to suppress the pole
camera evidence and the fruits of that evidence. Moore-Bush filed
a very similar motion on May 2, 2019. The motions argued that the
government's use of the pole camera was a search under the Fourth
Amendment to the United States Constitution that required judicial
authorization. They argued they had both subjective and
objectively reasonable expectations of privacy in "the whole of
[their] physical movements in and out of [their] home for a period
of eight months."3 They argued the entire recording over the eight
3 They did not argue that the government had "physically
intrud[ed]" onto their property under the "trespass" theory of
Fourth Amendment searches. See Florida v. Jardines, 569 U.S. 1,
5 (2013). Indeed, the pole on which the camera was installed was
a public utility pole across the street from Moore's home and not
on her property.
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months was a search, and they did not attempt to define what period
of time the government might legally have recorded them, if any.
Moore-Bush and Moore acknowledged that the Bucci
decision from this circuit upheld the constitutionality of a pole
camera that also operated for eight months. They argued that Bucci
was no longer controlling precedent because "[t]he search and
seizure landscape, particularly regarding the scope of individual
privacy rights, has changed considerably since Bucci was decided."
In particular, they pointed to the Supreme Court case Carpenter v.
United States. They also cited Florida v. Jardines, 569 U.S. 1
(2013), and United States v. Jones, 565 U.S. 400 (2012). They did
not argue that the good faith exception could not apply or that
probable cause did not exist.
The government opposed the motions to suppress on May 6,
2019, addressing its arguments to the grounds Moore-Bush and Moore
asserted in their motions. It argued that neither defendant had
shown enough to support a finding of a subjective expectation of
privacy. Further, it argued that Bucci was controlling and Bucci
directly foreclosed any argument that Moore-Bush or Moore had an
objectively reasonable expectation of privacy in the front of their
home. It argued Carpenter did not impact, much less overrule,
Bucci because Carpenter was a "narrow" decision about cell-site
location information that did not "call into question conventional
surveillance techniques and tools, such as security cameras."
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Carpenter, 138 S. Ct. at 2220. And the government argued Jardines
and Jones could not overrule Bucci because those cases primarily
dealt with physical trespass, which is not at issue in this case.
The government did not argue at any time that probable cause
existed for either the installation of the pole camera or its
eight-month duration. In its opposition, the government did not
raise the good faith exception to argue that, regardless, the
evidence could not be suppressed.
The district court heard oral argument on the motions on
March 13, 2019. On June 4, 2019, it released a memorandum and
order granting Moore-Bush and Moore's motions to suppress.4 In
its order, the court found that both defendants subjectively
"expected privacy in the whole of their movements over the course
of eight months from continuous video recording with magnification
and logging features in the front of their house." The court held
that defendants' direct and imputed subjective privacy interests
were "infer[red]" from their choice to live in a home in a quiet
suburban neighborhood. The court reasoned that persons who live
in quiet suburban neighborhoods have greater privacy interests
than persons who live in other neighborhoods.
The court held that Bucci was not controlling because of
the Supreme Court's decision in Carpenter, which it found freed it
4 The June 4, 2019, order made minor, non-substantive
corrections to an otherwise identical order from June 3, 2019.
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to reevaluate the issue of whether warrantless pole camera
surveillance requires a warrant. The district court held that:
"(1) continuous video recording for approximately eight months;
(2) focus on the driveway and front of house; (3) ability to zoom
in so close that [the pole camera] can read license plate numbers;
and (4) creation of a digitally searchable log" made the use of
the pole camera a search. It did not determine if any discrete
part of the recording was not a search or at what point during the
duration of the pole camera's recording a warrant was required.
It simply suppressed the entirety of the pole camera evidence.
Since no exception under Davis v. United States, 564
U.S. 229, 239 (2011), was raised by the government in its
opposition to the defendants' suppression motions, the district
court considered any government argument as to the good faith
exception to have been waived. The court suppressed all evidence
obtained directly by the pole camera, but "[took] no action with
regard to evidence collected indirectly from the Pole Camera."5
The government filed a motion for reconsideration on
June 4, 2019. For the first time in the proceedings, it attached
the specific photos and videos from the pole camera that it
5 On June 6, 2019, Moore filed a "Renewed Motion for
Evidentiary Hearing on Derivative Evidence and Suppression of
Evidence Derived From Fruits of Pole Camera Surveillance," with
argument on this point. The district court has not ruled on it
yet because of these appeals.
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intended to introduce at trial. Based on those photos and the
record as a whole, it argued that the district court had
inaccurately exaggerated the pole camera's technical capabilities.
Citing Davis and United States v. Sparks, 711 F.3d 58 (1st Cir.
2013), for the first time, the government argued that the good
faith exception to the Fourth Amendment's exclusionary rule should
apply and permit it to introduce the pole camera evidence even if
the evidence were unconstitutionally obtained.
The district court denied the motion for reconsideration
on June 5, 2019. On June 6, 2019, the government appealed the
suppression order. On June 19, 2019, it appealed the order denying
reconsideration.
II.
A. The Doctrine of Stare Decisis Controls This Case
The doctrine of stare decisis comes from the Latin maxim
"stare decisis et non quieta movere," meaning "to stand by the
thing decided and not disturb the calm." Ramos v. Louisiana, 140
S. Ct. 1390, 1411 (2020) (Kavanaugh, J., concurring in part). "The
doctrine of stare decisis renders the ruling of law in a case
binding in future cases before the same court or other courts owing
obedience to the decision." Gately v. Massachusetts, 2 F.3d 1221,
1226 (1st Cir. 1993). It "precludes the relitigation of legal
issues that have previously been heard and authoritatively
determined." Eulitt ex rel. Eulitt v. Me., Dep't of Educ., 386
- 15 -
F.3d 344, 348 (1st Cir. 2004) (citing Stewart v. Dutra Constr.
Co., 230 F.3d 461, 467 (1st Cir. 2000) (subsequent history
omitted)).
The role of stare decisis is to "keep the scale of
justice even and steady, and not liable to waver with every new
judge's opinion." Ramos, 140 S. Ct. at 1411 (Kavanaugh, J.,
concurring in part) (quoting 1 W. Blackstone, Commentaries on the
Laws of England 69 (1765)). It is "a foundation stone of the rule
of law." Allen v. Cooper, 140 S. Ct. 994, 1003 (2020) (quoting
Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 798 (2014)).
The doctrine is commonly divided into horizontal and
vertical precedent. See Garner et al., supra, at 27. Vertical
precedents are decisions in "the path of appellate review," meaning
Supreme Court decisions control all lower federal courts and
circuit court decisions control federal district courts in their
circuits. Id. at 28 (citing Evan H. Caminker, Why Must Inferior
Courts Obey Superior Court Precedents?, 46 Stan. L. Rev. 817, 825
(1994)). Courts are absolutely bound to follow vertical
precedents. Id. at 27.
The Supreme Court has repeatedly stressed the importance
of both circuit and district courts faithfully following vertical
precedent. See Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd.,
460 U.S. 533, 535 (1983) (per curiam) ("Needless to say, only this
Court may overrule one of its precedents."); Hutto v. Davis, 454
- 16 -
U.S. 370, 375 (1982) (per curiam), reh'g denied, 455 U.S. 1038
(1982) ("[U]nless we wish anarchy to prevail within the federal
judicial system, a precedent of this Court must be followed by the
lower federal courts no matter how misguided the judges of those
courts may think it to be."); see also Eberhart v. United States,
546 U.S. 12, 19-20 (2005) (praising the Seventh Circuit for
following Supreme Court precedent despite its doubts).
The law of the circuit doctrine protects horizontal
precedent, or precedent from the same court, meaning that generally
"a prior panel decision shall not be disturbed." United States v.
Lewko, 269 F.3d 63, 66 (1st Cir. 2001). The law of the circuit
doctrine has two recognized, narrow exceptions, but "their
incidence is hen's-teeth-rare." San Juan Cable LLC, 612 F.3d at
33. The first exception applies when "the holding of the prior
panel is 'contradicted by controlling authority, subsequently
announced.'" Id. (quoting United States v. Rodríguez, 527 F.3d
221, 225 (1st Cir. 2008)).6 The second exception, which is even
more uncommon, applies only in those "rare instances in which
authority that postdates the original decision, although not
directly controlling, nevertheless offers a sound reason for
6 No one contends that Carpenter directly overrules prior
law approving the use of pole cameras by law enforcement without
obtaining a warrant, the first exception to the law of the circuit
doctrine.
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believing that the former panel, in light of fresh developments,
would change its collective mind." Id. (quoting Williams v.
Ashland Eng'g Co., 45 F.3d 558, 592 (1st Cir. 1995) (subsequent
history omitted)).7
The respecting of both kinds of precedent is essential
at all levels in the operation of the federal courts. As the
Supreme Court recently explained, stare decisis "promotes the
evenhanded, predictable, and consistent development of legal
principles, fosters reliance on judicial decisions, and
contributes to the actual and perceived integrity of the judicial
process." Kisor v. Wilkie, 139 S. Ct. 2400, 2422 (2019) (quoting
Payne v. Tennessee, 501 U.S. 808, 827 (1991)).
The Supreme Court has decided several recent appeals
based on stare decisis. In Allen v. Cooper, for instance, the
Court looked to not only the relevant precedent's narrow legal
holding but also its method of analysis. See Allen, 140 S. Ct. at
1003-07. And the Court noted that even it, the final court of
appeal in our judicial system, will not overrule past Supreme Court
precedent absent a "'special justification' over and above the
belief 'the precedent was wrongly decided.'" Id. at 1003. See
also Gundy v. United States, 139 S. Ct. 2116, 2123-26 (2019)
7 Other circuits have an even more restrictive test. See
Garner et al., supra, at 492-93.
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(following the Court's previous interpretation of the Sex Offender
Registration and Notification Act and therefore finding no non-
delegation issue); Ramos, 140 S. Ct. at 1390 (discussed more
below).
B. Bucci Built on Supreme Court Case Law and Is Controlling Here
Bucci is a First Circuit case, decided in 2009, which
held that the government's use of a pole camera across the street
from Bucci's home for eight months was not a search because Bucci
did not have an objectively reasonable expectation of privacy in
the front of his home. Bucci, 582 F.3d at 116-17. That holding
is on all fours8 with the issue presented in Moore-Bush and Moore's
8 Bucci is not factually distinguishable from the case at
hand. Law enforcement officials installed a video camera on the
utility pole across the street from both defendants' houses.
Bucci, 582 F.3d at 116. Both cameras were directed at the
respective homes' garages and driveways. Id. Both cameras
operated for eight months. Id. Both defendants challenged law
enforcement's use of a pole camera on Fourth Amendment grounds and
moved to suppress the evidence obtained from it. Id.
There are even more factual similarities. Bucci, like
Moore-Bush and Moore, was implicated in a drug trafficking
conspiracy. Id. at 111. Neither home had fences, gates, or
shrubbery to block a passerby's view of the garage or driveway
from the street. Id. at 116-17. We take judicial notice that the
record in the Bucci case makes clear that the pole camera's footage
there also could be viewed live and was recorded. Order Denying
Motion to Suppress, United States v. Bucci, No. 1:03-cr-10220-NMG
(D. Mass. Dec. 22, 2004), ECF No. 114. Agents in both cases
monitored the footage to track the movements of the houses'
inhabitants and guests. Id.
The only factual difference of any note between the two
cases is that law enforcement officers in Bucci were not able to
zoom, pan, or tilt the camera remotely while they directly viewed
the images in real time. Bucci, 582 F.3d at 116. The district
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cases. That holding in Bucci relied on basic Fourth Amendment
principles explicated by the Supreme Court in cases stretching
back decades, and even to the Founders. Those cases relied on in
Bucci remain good law today.
Bucci began its analysis by laying out a legal test first
established by the Supreme Court in Katz and later formalized in
Smith v. Maryland, 442 U.S. at 740. Id. (citing United States v.
Rodríguez-Lozada, 558 F.3d 29, 37 (1st Cir. 2009)) (explaining
that a reasonable expectation of privacy must be established before
a court may reach the merits of a motion to suppress). To establish
that he had a reasonable expectation of privacy, "Bucci must show
that 1) he 'has exhibited an actual, subjective expectation of
privacy' in the area searched; and 2) 'such subjective expectation
is one that society is prepared to recognize as objectively
reasonable.'" Id. (quoting United States v. Rheault, 561 F.3d 55,
59 (1st Cir. 2009) (itself citing Smith, 442 U.S. at 740)).
Bucci focused on the second part of the test about "the
lack of a reasonable objective expectation of privacy because this
court correctly determined that this distinction is "too thin" to
distinguish Bucci.
On appeal, defendants argue that their case is
distinguishable from Bucci because they have a privacy interest
"in the whole of their movements over the course of eight months
from continuous video recording with magnification and logging
features in the front of their house," while we described Bucci's
privacy interest as an interest "in the front of his home." Id.
We reject the attempt to distinguish these two cases merely by
describing the same privacy interest with different words.
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failure is so clear." Id. (citing United States v. Vilches-
Navarrete, 523 F.3d 1, 14 (1st Cir. 2008)). It said that "[a]n
individual does not have an expectation of privacy in items or
places he exposes to the public," like Bucci's front yard, and
held that "[t]hat legal principle is dispositive here." Id. at
117.
Bucci based that statement of law on language from three
Supreme Court cases. First, it relied on and cited to a principle
from Katz that "the Fourth Amendment protects people, not places.
What a person knowingly exposes to the public, even in his own
home or office, is not a subject of Fourth Amendment protection."
Id. (quoting Katz, 389 U.S. at 351). Then Bucci cited to the part
of the Court's decision in Ciraolo, 476 U.S. at 213, that says,
"[t]he Fourth Amendment protection of the home has never been
extended to require law enforcement officers to shield their eyes
when passing by a home on public thoroughfares." Id. Finally,
Bucci cited to the portion of Kyllo, 533 U.S. at 31-33, that
discusses the lawfulness of unenhanced visual surveillance of a
home.9 Id.
9 The First Circuit cases cited to in Bucci -- Rodríguez-
Lozada, Rheault, and Vilches-Navarrete -- themselves also relied
on the Supreme Court's decisions in Smith, Kyllo, and Ciraolo, or
circuit precedents based on those cases. In each of those cases,
this court rejected that there was a reasonable expectation of
privacy as to areas far more private and less accessible to public
view than the views here, all visible to anyone on the street.
See Rheault, 561 F.3d at 61 (relying on fact tenant could not
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C. Carpenter Directly Prohibits Any Departure from Stare Decisis
No case from the Supreme Court decided since Bucci,
including Carpenter, undermines Bucci or the Supreme Court cases
on which Bucci relied. To the contrary, Carpenter reaffirms the
analysis the Bucci court undertook by explicitly protecting
conventional surveillance techniques and by repeatedly affirming
the underlying language from Supreme Court cases which Bucci cited
and which provided the rationale of the Bucci decision. Because
we are strictly bound to apply Supreme Court precedent, this
language in Carpenter prohibits us and the district court from
departing from stare decisis.
The limitations expressed in the Carpenter analyses are
not mere dicta. We consider both the language protecting
conventional surveillance technology and the reaffirmation of the
existing Fourth Amendment case law quoted in Bucci to be essential
to the Court's holding in Carpenter.
But even if both the analyses and the express limiting
language were dicta, federal circuit and district courts are not
free to ignore them. See United States v. Santana, 6 F.3d 1, 9
(1st Cir. 1993) ("Carefully considered statements of the Supreme
exclude other tenants from a third-floor landing in a building);
Rodríguez-Lozada, 558 F.3d at 37 (stating casual visitor has no
expectation of privacy as to apartment of another); Vilches-
Navarrete, 523 F.3d at 14 (holding there is no reasonable
expectation of privacy in secret apartment under hidden hatch in
maritime vessel).
- 22 -
Court, even if technically dictum, must be accorded great weight
and should be treated as authoritative when, as in this instance,
badges of reliability abound."); McCoy v. Mass. Inst. of Tech.,
950 F.2d 13, 19 (1st Cir. 1991) ("[F]ederal appellate courts are
bound by the Supreme Court's considered dicta almost as firmly as
by the Court's outright holdings, particularly when, as here, a
dictum is of recent vintage and not enfeebled by any subsequent
statement."); see also Pierre N. Leval, Judging Under the
Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1250
(2006) (describing how dicta are "often treated as binding law").
Even beyond Carpenter's expressly stated limitations,
Carpenter did not provide cause to question Bucci for a different
reason. Carpenter concerned whether the doctrine that there can
be no reasonable expectation of privacy in information placed in
the hands of third parties should be extended to the new situation
of the government obtaining from cellular telephone companies over
a period of time cell-site location information ("CSLI").
Carpenter, 138 S. Ct. at 2211. CSLI generates a time-stamped
record of the user's past location whenever a phone accesses the
wireless network, which, for smartphone users, is often several
times a minute. Id. Carpenter holds that the collection of seven
days of CSLI constitutes a search within the meaning of the Fourth
Amendment, but it did not reach the question of the consequences
of data collection over a shorter period. Id. at 2217 n.3.
- 23 -
Carpenter's limitations unquestionably apply here. Pole
cameras are conventional, not new, technology.10 They are the
exact kind of "conventional surveillance technique[]" the Court
carefully said it was not calling into question. Id. at 2220.
Pole cameras have been mentioned in published decisions in our
circuit since at least 2003, see United States v. Montegio, 274 F.
Supp. 2d 190, 201 (D.R.I. 2003), and outside of the circuit since
at least 1987, see United States v. Cuevas-Sanchez, 821 F.2d 248,
250-51 (5th Cir. 1987). This is in sharp contrast to the much
more recent technology at issue in Carpenter, which was unique to
"modern" phones that "generate increasingly vast amounts of
increasingly precise CSLI." Carpenter, 138 S. Ct. at 2212.
Indeed, in common parlance, pole cameras are "security
cameras." The Court in Carpenter described "security cameras" as
a type of a "surveillance technique[]" that the Court's opinion
10 The district court erred as to the record, doing so in
service of its conclusion that pole cameras, or at least this pole
camera, represent a potential new privacy threat. Pole cameras
are video cameras. The record does not indicate that the
"digitally searchable log" the district court relied on is anything
more than a recording that could be started at different points in
time, much like VHS tapes. The fact that the camera could zoom,
pan, and tilt also does not significantly set it apart from pre-
existing technology, especially since these features were only
available to officers observing the footage live. Amicus curiae
the Center for Democracy & Technology warn us that pole cameras
could be abused in the future if the government were to combine
them with facial recognition technology or artificial
intelligence. But those issues are simply not present in this
case.
- 24 -
did not call into question, a longstanding technique routinely
deployed by government and private actors alike. While there may
be other uses for security cameras, they are clearly used for
surveillance, and that use was specifically referred to by the
Court. Thus, pole cameras are security cameras in the way that is
relevant for this analysis.11
11 The district court attempted to distinguish pole
surveillance cameras from security cameras by arguing that
security cameras "guard against . . . crime" (alteration in
original), while pole cameras "investigate suspects." The
concurrence attempts to make a similar distinction. Both attempts
fail, and neither provides any basis to avoid the rule of stare
decisis. Most neighborhoods, for their own safety and for other
reasons, do not want crime within their boundaries, and guarding
against crime involves investigating suspects. Privately owned
cameras routinely record property privately owned by others or
common areas with multiple owners.
In addition, recordings from privately owned video
cameras have been used many times in this circuit to prosecute
people accused of crimes. See, e.g., United States v. Smiley,
3:19-CR-00752-RAM, 2019 WL 6529395, at *5 (D.P.R. Dec. 4, 2019)
(discussing the government's use of footage from a privately owned
camera installed on a cruise ship to prove a domestic violence
charge); United States v. Tsarnaev, 53 F. Supp. 3d 450, 458 (D.
Mass. 2014) (discussing evidence obtained from a camera installed
in a Macy's department store). The attempted distinction, in any
event, misses the point Carpenter was making.
Similarly, "security cameras" are not exclusively owned
by private parties; they are commonly owned by the government and
are often used for law enforcement purposes. It is not true that
the government only uses security cameras as if it were acting to
protect its own proprietary interests. The City of Springfield,
for example, reports on its website that it operates more than
forty cameras located throughout the city to "get a real time look
at resident and business complaints or concerns." Real Time
Camera's Assist DPW, City of Springfield (Dec. 24, 2013 7:46 AM),
https://www.springfield-ma.gov/dpw/index.php?id=cameras. The
Massachusetts Bay Transit Authority ("MBTA") has installed
hundreds of cameras on its buses that live-stream footage to
central dispatch and MBTA Transit Police officers' cars. Martine
- 25 -
In addition, the government argues that Carpenter leaves
intact the principles Bucci relies on from Supreme Court precedents
in Katz and Ciraolo. We agree. The Supreme Court was clear in
Carpenter that its decision does not call into question the
language Bucci cited from Supreme Court precedent in Katz, 389
U.S. at 351, Ciraolo, 476 U.S. at 213, and Kyllo, 533 U.S. at 31-
33. Two of those cases, Katz and Kyllo, were cited repeatedly
throughout the Court's decision in Carpenter. Carpenter, 138 S.
Ct. at 2213-19. Indeed, Carpenter cited some of the same language
from Katz that was cited in Bucci. Id. at 2213 ("the Fourth
Amendment protects people, not places").
Nowhere in the Carpenter opinion does the Court suggest
that any of those cases, or any part of the Court's existing Fourth
Amendment framework involving the lack of Fourth Amendment
protection for places a defendant knowingly exposes to public view,
has been overruled or modified. Instead, the opinion was framed
as "how to apply the Fourth Amendment to a new phenomenon." Id.
Powers, New Cameras Keep Watch on MBTA Buses, The Boston Globe
(Feb. 12, 2014), https://www.bostonglobe.com/metro/2014/02/11/
begins-installation-bus-security-cameras/Z1QwILHvLb3TgsgOPXa9yM/
story.html. When these cameras were installed, the Suffolk County
District Attorney commented that they would be useful both to deter
crime and to investigate it after it has occurred. Id.
As said, Carpenter holds that particular surveillance
technologies, including security cameras, are not called into
question. And even if the limitations in Carpenter were only
dicta, the doctrine of stare decisis would apply. See Santana, 6
F.3d at 9.
- 26 -
at 2216. In Carpenter, the Court refused to extend the third-
party doctrine that "a person has no legitimate expectation of
privacy in information he voluntarily turns over to third parties"
to long-term monitoring of CSLI. Id. at 2216 (quoting Smith, 442
U.S. at 743-44). It explicitly framed its holding in terms of the
third-party doctrine, a doctrine not relevant here. Id. ("We
therefore decline to extend Smith and [United States v.] Miller[,
425 U.S. 435 (1976),] to the collection of CSLI."). Indeed, it
specifically criticized Justice Thomas's and Justice Gorsuch's
dissents for attempting to revisit Katz when neither party asked
the Court to do so. Id. at 2214 n.1.
The cases cited by Katz, Ciraolo, and Kyllo naturally
extend to the circumstances here. The defendants and the
concurrence argue that law enforcement's eight-month use of the
pole camera is distinguishable because it was particularly
"unrelenting, 24/7, perfect." But the Court's existing Fourth
Amendment case law has already considered and allowed behavior
that might be described as "unrelenting" and found no violation of
any reasonable expectation of privacy. Any home located on a busy
public street is subject to the unrelenting gaze of passersby, yet
"[t]he Fourth Amendment protection of the home has never been
extended to require law enforcement officers to shield their eyes
when passing by a home on public thoroughfares." Ciraolo, 476
U.S. at 213.
- 27 -
Conversely, the Court in Carpenter explained why CSLI is
different than the information obtained by a public view of a
particular location, such as from pole cameras. CSLI "provides an
all-encompassing record of the [cell phone] holder's whereabouts,"
id. at 2217, "beyond public thoroughfares and into private
residences, doctor's offices, political headquarters, and other
potentially revealing locales," id. at 2218. There is no
equivalent analogy to what is captured by the pole camera on the
public street, which is taking images of public views and not more.
A pole camera does not track the whole of a person's movement over
time.
The Carpenter Court reasoned that CSLI creates
"otherwise unknowable" data and is as comprehensively invasive for
law enforcement to use "as if it had attached an ankle monitor to
the phone's user." Id. That is not this situation, and pole
cameras are plainly not an equivalent to CSLI. The pole camera
here captured only a small slice of the daily lives of any
residents, and then only when they were in particular locations
outside and in full view of the public. Pole cameras are fixed in
place and do not move with the person as do cell phones generating
CSLI. In many ways, as described earlier, this pole camera
- 28 -
captured less information about Moore and Moore-Bush than someone
on the street could have seen and captured.
D. The Language from Supreme Court Cases on Which Bucci Relied
Requires Reversal of the District Court
Because they were not altered in Carpenter or any other
case, the principles in the case law relied on in Bucci continue
to be good law. The government argued that the cases cited in
Bucci have "the most closely on-point holdings" and "provide the
same support for the conclusion that use of a pole camera is not
a 'search' that they did when Bucci and cases like it were
decided." We agree. The concurrence is wrong to say that Bucci
misreads the Supreme Court precedents on which it relies. If
anything, Carpenter reinforces Bucci's reading of these existing
precedents, and we remain bound by Supreme Court precedent to reach
the same conclusion this court did when it decided Bucci. It
remains true, as a general matter, that:
The Fourth Amendment protects people, not
places. What a person knowingly exposes to
the public, even in his own home or office, is
not a subject of Fourth Amendment protection.
But what he seeks to preserve as private, even
in an area accessible to the public, may be
constitutionally protected.
Katz, 389 U.S. at 351 (internal citations omitted); see also
Ciraolo, 476 U.S. at 213 (quoting a portion of the language from
Katz copied above).
- 29 -
The government also argues that nothing in Jones or
Jardines purports to overrule the rule of Katz and Ciraolo that a
person does not have a reasonable expectation of privacy in the
actions he or she exposes to the public view. Indeed, the majority
opinions in Jones and Jardines are inapposite because they rely on
a trespass theory, not a reasonable expectations theory.
Our analysis must be "informed by historical
understandings 'of what was deemed an unreasonable search and
seizure when [the Fourth Amendment] was adopted.'" Carpenter, 138
S. Ct. at 2214 (quoting Carroll v. United States, 267 U.S. 132,
149 (1925)). Justice Scalia's majority opinion in Kyllo
establishes that, at the time of adoption of the Fourth Amendment,
"[v]isual surveillance was unquestionably lawful because 'the eye
cannot by the laws of England be guilty of a trespass.'" Kyllo,
533 U.S. at 31-32. Indeed, Justice Scalia's opinion in Kyllo
quoted Boyd v. United States, 116 U.S. 616, 628 (1886), which
itself quoted from English law, Entick v. Carrington, 19 How. St.
Tr. 1029, 95 Eng. Rep. 807 (K.B. 1765).
Bucci cited Kyllo. Bucci, 582 F.3d at 117. In Kyllo,
the Court affirmed that "the lawfulness of warrantless visual
surveillance of a home has still been preserved." Kyllo, 533 U.S.
at 32. By granting Moore-Bush and Moore's suppression motions,
the district court broke with the original understanding of the
Fourth Amendment as found by the Supreme Court.
- 30 -
Kyllo also aids our analysis in another way. The issue
there concerned "the use of a thermal-imaging device aimed at a
private home from a public street to detect relative amounts of
heat within the home." Id. at 29. In particular, in holding that
the use of a thermal-imaging device is a search, the Court
distinguished between this uncommon and then new technology and
technology that is "in general public use." Id. at 34.
E. No Exception to Stare Decisis Applies for Other Reasons
Even absent the explicit limiting language in Carpenter,
Carpenter's reasoning does not undermine Bucci's reasoning.
Moore-Bush and Moore disagree and make the following argument.
Bucci rests on what they characterize as a categorical statement:
"An individual does not have an expectation of privacy in items or
places he exposes to the public." Bucci, 582 F.3d at 117 (citing
Katz, 389 U.S. at 351). "That legal principle is dispositive
here." Id.
Carpenter, on the other hand, contains the following
passage that, in the words of the district court, seems "to cabin
-- if not repudiate -- that principle": "A person does not
surrender all Fourth Amendment protection by venturing into the
public sphere. To the contrary, 'what [one] seeks to preserve as
private, even in an area accessible to the public, may be
constitutionally protected.'" Carpenter, 138 S. Ct. at 2217
(alteration in original) (quoting Katz, 389 U.S. at 351-52).
- 31 -
The alleged tension between these two statements,
according to the defendants, "offers a sound reason for believing
that the former panel [in Bucci], in light of fresh developments,
would change its collective mind," permitting this panel to revise
otherwise binding horizontal precedent. Williams, 45 F.3d at 592.
There is no such reason.
The referred-to passage from Bucci and the "cabining"
language from Carpenter both quote from the same decision, Katz.
And the specific quotes at issue immediately follow one another in
the opinion. Katz, 389 U.S. at 351. It is true that Katz said
generally, "[w]hat a person knowingly exposes to the public, even
in his own home or office, is not a subject of Fourth Amendment
protection." Id. It then provided a possible exception to that
rule: "[b]ut what he seeks to preserve as private, even in an area
accessible to the public, may be constitutionally protected." Id.
Bucci's statement that the general rule "is dispositive here"
certainly meant that no established exception applied in that case,
not that no exceptions exist. Bucci quoted Katz at page 351, and
the exception was raised in the very next sentence of the opinion
in Katz.12 Indeed, here, the only images recorded were those of
12 In a Fed. R. App. P. 28(j) letter, Moore stated that the
government cited Vega-Rodriguez v. Puerto Rico Telephone Co., 110
F.3d 174 (1st Cir. 1997), to support the "categorical rule" in
Bucci that "an individual does not have an expectation of privacy
in items or places he exposes to the public." The government did
no such thing. It cited Vega-Rodriguez for the proposition that
- 32 -
the front areas of Moore's house, exposed to the view of any member
of the public. Defendants clearly did nothing to seek to preserve
those views as private.
Moreover, as discussed above, Carpenter did not purport
to alter Katz as to what constitutes a search when law enforcement
uses traditional technology.13 Instead, it rooted its analysis in
existing case law, which was untouched or affirmed in Carpenter.
Carpenter and Bucci are not in tension for several reasons. One
is that they rely on the same case law foundation. And we note
that it is up to the Supreme Court, not this court, to address
arguments that anything in the Katz line of cases has been
overruled. See Rodriguez de Quijas v. Shearson/Am. Express, Inc.,
490 U.S. 477, 484 (1989) ("[T]he Court of Appeals should . . .
leav[e] to this Court the prerogative of overruling its own
decisions.")
"the mere fact that the observation is accomplished by a video
camera rather than the naked eye, and recorded on film rather than
in a supervisor's memory, does not transmogrify a constitutionally
innocent act into a constitutionally forbidden one." Id. at 181.
This, too, remains good law.
13 Further, the district court erred in interpreting
statements of general law made in a Fourth Amendment case as it
did. "Fourth Amendment analysis is renownedly fact specific."
United States v. Beaudoin, 362 F.3d 60, 70 (1st Cir. 2004), vacated
on other grounds by Champagne v. United States, 543 U.S. 1102
(2005). Chief Justice Marshall's warning from almost two centuries
ago applies here: "It is a maxim not to be disregarded, that
general expressions, in every opinion, are to be taken in
connection with the case in which those expressions are used."
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821).
- 33 -
Nor can any basis for overruling Bucci be found in the
Carpenter Court's reference to "some basic guideposts" in Fourth
Amendment jurisprudence, including the amendment's goals of
"secur[ing] 'the privacies of life' against 'arbitrary power',"
Carpenter, 138 S. Ct. at 2214 (quoting Boyd, 116 U.S. at 630) and
"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)). These general principles were firmly in place before
Carpenter (and Bucci) and acknowledged in Carpenter as such. Id.
We agree with the government that nothing in Jones
undermines the principle from Katz and Ciraolo, repeated in Bucci,
that a person does not have a reasonable expectation of privacy in
the actions he or she knowingly exposes to public view. No basis
for revisiting Bucci can be found in Carpenter's noting that five
justices, in concurrences written by Justice Alito and Justice
Sotomayor, had agreed in the 2012 case Jones that a GPS tracker
attached to someone's car could violate someone's expectation of
privacy in the whole of their physical movements. Id. at 2217
(citing Jones, 565 U.S. at 430 (Alito, J., concurring in judgment);
id. at 415 (Sotomayor, J., concurring)). The Carpenter Court
reasoned that this would apply with equal force to CSLI. But it
did so by closely analogizing between the two technologies, stating
that CSLI, like GPS information, "provides an intimate window into
- 34 -
a person's life" because it "provides an all-encompassing record
of the holder's whereabouts." Carpenter, 138 S. Ct. at 2217.
As the Sixth Circuit has noted in affirming the denial
of a motion to suppress evidence obtained from pole cameras, the
concurrences in Jones are easily distinguished on this point. The
concurrences were concerned "that long-term GPS monitoring would
'secretly monitor and catalogue every single movement," United
States v. Houston, 813 F.3d 282, 290 (6th Cir. 2016) (quoting
Jones, 565 U.S. at 430 (Alito, J., concurring in judgment)), and
"generate[] a precise, comprehensive record of a person's public
movements," id. (quoting Jones, 565 U.S. at 415 (Sotomayor, J.,
concurring)).14 Information obtained from pole cameras does not
give rise to the same concerns.
14 The Sixth Circuit again rejected this argument in United
States v. May-Shaw, 955 F.3d 563, 567 (6th Cir. 2020). In
addition, several district courts have also considered the issue,
and they have all found that pole cameras still do not constitute
a search. See United States v. Fanning, No. 1:18-cr-362-AT-CMS,
2019 WL 6462830 (N.D. Ga. May 28, 2019); United States v. Gbenedio,
No. 1:17-CR-430-TWT, 2019 WL 2173994 (N.D. Ga. May 17, 2019);
United States v. Kelly, No. 17-cr-175-pp, 2019 WL 2137370 (E.D.
Wis. May 16, 2019); United States v. Harris, No. 17-CR-175, 2019
WL 2996897 (E.D. Wis. Feb. 19, 2019); United States v. Kubasiak,
No. 18-CR-120, 2018 WL 6164346 (E.D. Wis. Aug. 23, 2018); United
States v. Tirado, No. 16-CR-168, 2018 WL 3995901 (E.D. Wis. Aug.
21, 2018); United States v. Kay, No. 17-CR-16, 2018 WL 3995902
(E.D. Wis. Aug. 21, 2018); United States v. Tuggle, No. 16-cr-
20070-JES-JEH, 2018 WL 3631881 (C.D. Ill. July 31, 2018). The
Sixth Circuit affirmed the constitutionality of pole cameras after
the Supreme Court's decision in Jones. See Houston, 813 F.3d 282.
- 35 -
Recently, the Supreme Court in Ramos v. Louisiana had an
extensive discussion of the role of stare decisis in deciding
constitutional cases, with various justices laying out their own
tests for when to overrule precedent. Ramos, 140 S. Ct. 1390.
None of their respective tests suggest that we should understand
Carpenter as having overruled or modified existing Fourth
Amendment precedent so as to put it in tension with our analysis
in Bucci.
The majority opinion in Ramos, written by Justice
Gorsuch, states that the Court should consider "the quality of the
decision's reasoning; its consistency with related decisions;
legal developments since the decision; and reliance on the
decision." Id. at 1405 (quoting Franchise Tax Bd. Of Cal. v.
Hyatt, 139 S. Ct. 1485, 1499 (2019)).15
The decisions in Katz v. United States, 389 U.S. 347
(1967) (Stewart, J.), Smith v. Maryland, 442 U.S. 735 (1979)
(Blackmun, J.), California v. Ciraolo, 476 U.S. 207 (1986) (Burger,
C.J.), and Kyllo v. United States, 533 U.S. 27 (2001) (Scalia,
J.), cannot be called less than high-quality. As described above,
nothing before or since those decisions draw into question their
reasoning. And law enforcement has substantially relied on these
15Justice Sotomayor joined this part of the majority's
opinion, while also filing a concurrence.
- 36 -
precedents to deploy surveillance technologies like pole cameras
in countless criminal investigations.
In this case, law enforcement officers relied on these
precedents in deciding not to obtain a warrant for the pole camera,
both when it was initially installed and later as they continued
to use the camera over an eight-month period during this major
drug crime conspiracy investigation. This was not an example of
law enforcement installing a camera without even reasonable
suspicion. Before the camera was installed, a CW, acting on the
government's orders, purchased four guns illegally from Moore-
Bush, through Dinzey, at Moore's house. Evidence obtained from
the pole camera after it was installed was used in successful
wiretap and search warrant applications starting in July 2017 and
continuing throughout the fall and winter. Their reliance interest
is particularly strong here, where evidence obtained after a short
period of surveillance likely could have supported a warrant
application and showed the need for continuing surveillance.
As stressed by the government in their briefing, law
enforcement's reliance interest is not limited to just this case.
Pole cameras are often used by law enforcement officers to show
that they exhausted other investigative techniques before seeking
a warrant for a more invasive surveillance. See, e.g., United
States v. Bregu, 948 F.3d 408, 411 (1st Cir. 2020) (noting that
pole camera evidence was used to obtain a warrant for cell phone
- 37 -
location information); United States v. Figueroa, 501 F. App'x 5,
6 (1st Cir. 2013) (unpublished) (same for wiretap). Indeed, law
enforcement did so in this case. As the government has argued,
affirmance of the district court would call into question other
surveillance technologies that similarly have been used for
decades, which would be in direct conflict with the Supreme Court's
statement in Carpenter that it did not call into question
"conventional surveillance techniques." Carpenter, 138 S. Ct. at
2220. This is particularly true if it were to call into question
the use of security cameras, which have long been used for
continuing surveillance over time and, for the reasons discussed
above, are hard to distinguish from pole cameras. It is hardly an
answer to these reliance concerns to say that law enforcement can
no longer rely on clear Supreme Court precedent and First Circuit
precedent in Bucci and must take refuge in the good faith doctrine,
as the concurrence suggests.
Although the court in Ramos overruled the relevant
precedent in that case, Apodaca v. Oregon, 25 U.S. 404 (1972)
(plurality opinion), it did so because Apodaca was "unusual" in
the way the opinions were divided 4-1-4. Ramos, 140 S. Ct. at
1399 (quoting McDonald v. Chicago, 561 U.S. 742, 766 n.14 (2010)).
We note that, of all the cases that stand for the proposition that
there is no objective privacy interest in what is exposed to public
view, none were similarly divided.
- 38 -
The dissent in Ramos was even more concerned with the
harm of upsetting reliance interests than the majority was. Id.
at 1436-39 (Alito, J., dissenting). In particular, it highlighted
the state's interest in the finality of its verdicts and warned of
a "potential tsunami of litigation" following the majority's
ruling. Id. at 1436. If we were to interpret Carpenter as
overruling part of the Court's existing Fourth Amendment legal
framework, it would raise the same concerns.
Justice Kavanaugh's partial concurrence lays out a
three-part test for when to overrule precedent: if the precedent
is "egregiously wrong"; it has "caused significant negative
jurisprudential or real-world consequences"; and "overruling the
prior decision [would] unduly upset reliance interests." Id. at
1414-15. Again, there is nothing to suggest that any of the
Supreme Court cases relied on by Bucci are wrong, let alone
"egregiously wrong." Pole cameras are commonly used by law
enforcement and, particularly in their current iteration, have not
had significant negative real-world consequences. The
government's reliance interest in the sustained use of the pole
camera was significant. Had the government been put on any notice
that it needed to obtain a warrant to continue surveillance, it
- 39 -
likely would have sought and obtained a warrant early on based on
the new evidence the camera revealed.16
The district court's view of Carpenter also conflicts
with other binding First Circuit precedent. This court has already
rejected the proposition that Carpenter produced "a sea change in
the law of reasonable expectation of privacy," United States v.
Morel, 922 F.3d 1, 8 (1st Cir. 2019), and consequently, that
argument also cannot provide a basis. In United States v. López,
890 F.3d 332, 340 (1st Cir. 2018), this court declined to invoke
the second exception where we had already rejected a party's
interpretation of Supreme Court case law in an unpublished opinion.
Finally, this court has never found the second exception
to the law of the circuit to be permissible in the face of such
explicit commands from the Supreme Court. To the contrary, we
have declined to apply the exception where the Supreme Court
explicitly narrowed its holding. See Wallace v. Reno, 194 F.3d
279, 281 (1st Cir. 1999) ("Although this provision might appear to
channel judicial intervention in all deportation matters to the
16 Justice Thomas's opinion concurring in the judgment
noted his disagreement with "the Court's typical formulation of
the stare decisis standard . . . because it elevates demonstrably
erroneous decisions -- meaning decisions outside of the realm of
permissible interpretation -- over the text of the Constitution
and other duly enacted federal law." Ramos, 140 S. Ct. at 1421
(quoting Gamble v. United States, 139 S. Ct. 1960, 1981 (2019)
(Thomas, J., concurring in judgment)). Again, there is no
indication that any of the existing Fourth Amendment cases relevant
here were wrongly decided.
- 40 -
court of appeals, the Supreme Court concluded that section 242(g)
governed only three specific decisions by the Attorney General
. . . .").
III.
We reverse and remand with instruction to deny the
motions to suppress.
-Concurring Opinion Follows-
- 41 -
BARRON, Circuit Judge, concurring in the judgment. When
a catcher flashes the sign for a fastball rather than a curve, he
takes the risk that the runner on second will tip off the batter
to the pitch that's coming. But, while that runner's sign stealing
breaks no rules, his team's does if it involves hiding a high-
resolution video camera with zooming capacity behind the wall in
center field, recording every move that the opposing catcher makes
behind the plate, and using that video log to keep hitters in the
know for all nine innings. See Statement of the Commissioner from
Robert D. Manfred, Jr., Commissioner of Baseball, Major League
Baseball (Jan. 13, 2020), https://img.mlbstatic.com/mlb-
images/image/upload/mlb/cglrhmlrwwbkacty27l7.pdf.
The defendants in this case share Major League
Baseball's intuition that expectations of privacy are not merely
the residue of technological capacity. They ask us to be guided
by it, however, for a more consequential purpose than setting the
rules for America's pastime. They ask us to rely on it to find
that the Fourth Amendment of the United States Constitution bars
law enforcement's warrantless and suspicionless use of
surreptitious, unrelenting remote-control video surveillance of
the entryways of private residences.
The defendants concede that -- at least to some
significant extent -- both their home's side entrance and its
garage were knowingly exposed to public view. They thus
- 42 -
acknowledge that they knowingly took the risk of exposing their
comings and goings to and from their home to the equivalent of the
runner on second -- whether an undercover detective in the bushes
across the street or a neighbor walking his dog.
But, the defendants contend, law enforcement's
warrantless use of a remotely controlled video camera stealthily
affixed to a neighborhood utility pole, supplying a live feed to
the station house, and trained on those parts of their residence
without relent for eight months still interfered with their
reasonable expectations of privacy. And, for that reason, they
contend, it still constituted a search that violated the Fourth
Amendment.
For most of our nation's history, the most vigilant
voyeur could not replicate this kind of surveillance of the
concededly observable but often intimate daily activities of life
that occur so close to home. For that reason, the defendants
contend, society should be prepared to accept the legitimacy of
their expectation of privacy in them, even though their unblinking
and ceaseless electronic monitoring is now possible. Otherwise,
the defendants -- like the amici -- warn that, given the pace of
innovation, law enforcement will have license to conduct a degree
of unchecked criminal investigatory surveillance that the Fourth
Amendment could not possibly have been intended to allow. See Br.
for The Center for Democracy & Technology at 19-25 (describing how
- 43 -
technological advances, such as facial recognition software and
rapid search capabilities, will enable pole cameras, and thereby
law enforcement, to be more intrusive and efficient in the
immediate future).
Based on this concern, the District Court ruled that the
government's continuous, unmanned, and warrantless video
surveillance of the defendants' movements in and out of their
residence did interfere with their reasonable expectation of
privacy. For that reason, it granted the defendants' motions to
suppress all evidence traceable to the pole camera, as the
government had offered no reason for concluding that, insofar as
its use constituted a search, it was a constitutional one.
The government's appeal from that ruling raises the two
distinct questions that the majority's opinion addresses. The
first is whether one of our own precedents from 2009, United States
v. Bucci, 582 F.3d 108 (1st Cir. 2009), requires that we reverse
the District Court and accept the government's contention that the
video surveillance at issue here did not violate the defendants'
reasonable expectation of privacy and thus did not constitute a
search for Fourth Amendment purposes. The second is whether, even
if Bucci does not compel that outcome, we are nonetheless bound to
reach it as a matter of stare decisis, due to the United States
Supreme Court's post-Bucci decision in Carpenter v. United States,
138 S. Ct. 2206 (2018).
- 44 -
I agree with my colleagues' conclusion that Bucci, per
the law-of-the-circuit doctrine, stands in the way of the
defendants' contention that the surveillance here amounted to a
search. I do not agree, however, with my colleagues' further
suggestion that Carpenter not only prevents us, as a panel, from
concluding that Bucci called it wrong, but also requires us, as a
Circuit, to conclude that Bucci called it right.
If that were so, then Bucci's one-paragraph analysis of
this constitutional issue would suffice as our Circuit's
explanation for why, seemingly, whole neighborhoods may be
subjected to this type of warrantless surveillance without law
enforcement first having to offer up so much as an articulable
suspicion that it will turn up evidence of a crime. In my view,
Carpenter is better read to be but the Supreme Court's latest sign
that we must be more attentive than Bucci was in its brief
discussion of the Fourth Amendment to the risk that new technology
poses even to those "privacies of life" that are not wholly
shielded from public view. Carpenter, 138 S. Ct. at 2214 (quoting
Boyd v. United States, 116 U.S. 616, 630 (1886)). And, because
that sign is one that we are obliged to steal, I thus read
Carpenter, if anything, only to underscore the need for us to
reconsider Bucci en banc.
- 45 -
I.
Bucci held that the use of a video pole camera pointed
at the front door of the defendant's home for eight months was not
a search because such surveillance did not interfere with any
objectively reasonable expectation of privacy that the defendant
had. See 582 F.3d at 116-17. Under the law-of-the-circuit
doctrine, that no-search ruling controls the outcome for us here
unless: (1) it "is contradicted by subsequent controlling
authority, such as a decision by the Supreme Court, an en banc
decision of the originating court, or a statutory overruling,"
United States v. Barbosa, 896 F.3d 60, 74 (1st Cir. 2018) (citing
United States v. Rodríguez, 527 F.3d 221, 225 (1st Cir. 2008)),
cert. denied, 139 S. Ct. 579 (2018); or (2) "authority that
postdates the original decision, although not directly
controlling, nevertheless offers a sound reason for believing that
the former panel, in light of fresh developments, would change its
collective mind," id. (citing Williams v. Ashland Eng'g Co., 45
F.3d 588, 592 (1st Cir. 1995)).
The defendants respond that Bucci rested on a single
"legal principle" that it deemed to be "dispositive": "An
individual does not have an expectation of privacy in items or
places he exposes to the public." 582 F.3d at 117 (citing Katz v.
United States, 389 U.S. 347, 351 (1967) ("[T]he Fourth Amendment
protects people, not places. What a person knowingly exposes to
- 46 -
the public, even in his own home or office, is not a subject of
Fourth Amendment protection.")). But, the defendants go on to
point out, Carpenter, which held that the government's subpoena of
the cell-site location records of a defendant from his cell phone
carrier constituted a "search" subject to the Fourth Amendment,
explained that "[a] person does not surrender all Fourth Amendment
protection by venturing into the public sphere." 138 S. Ct. at
2217. And, the defendants then note, even though the target of
the "surveillance" in Carpenter had not taken explicit steps to
"preserve" that information "as private," id. (quoting Katz, 389
U.S. at 351), the Court held that he had a reasonable expectation
of privacy in it in part because "society's expectation has been
that law enforcement agents and others would not -- and indeed, in
the main, simply could not -- secretly monitor and catalogue" such
information, id. (quoting United States v. Jones, 565 U.S. 400,
430 (2012) (Alito, J., concurring in judgment)).
The defendants contend that these passages from
Carpenter give a "new gloss," Rodríguez, 527 F.3d at 222, to the
single legal principle on which Bucci claimed to have relied, such
that we must conclude that the panel in that case now "would change
its collective mind," id. at 225 (quoting Williams, 45 F.3d at
592). They thus argue that, as the District Court held, Carpenter
at least triggers the second exception to the law-of-the-circuit
doctrine.
- 47 -
I am not persuaded that Carpenter strips Bucci of its
precedential force, given the differing factual contexts in which
the two cases arise. See Williams, 45 F.3d at 592 (noting that
the second exception "pertains to . . . relatively rare
instances"). In Bucci, the defendant's movements all occurred on
his own property. Yet, the panel there explained, he had not
shielded that property from outside prying eyes by, say, erecting
a privacy fence or planting a tree. 582 F.3d at 116-17. The
"surveillance" at issue in Carpenter, however, was of the
defendant's movements all over town and thus in places over which
he had no control akin to that of the defendant in Bucci. See
Carpenter, 138 S. Ct. at 2218. That meant that those movements
occurred where the target of the "surveillance" could not undertake
the kinds of countermeasures that Bucci highlighted. Thus, because
Carpenter did not have any occasion to address whether the failure
to take them might bear on the reasonableness of one's expectation
of privacy in going in and out of one's own home, I cannot say
that we, as a panel, are free to disregard Bucci based on
Carpenter.
Still, it is important to keep in mind that the
law-of-the-circuit doctrine provides an orderly means by which a
Circuit may operate through panels until it collectively decides
that its precedent requires revision through the en banc process.
I thus think it is important to explain my disagreement with the
- 48 -
additional suggestion that my colleagues make, which is that Bucci
controls not just this panel but our Court because Carpenter -- far
from casting doubt on Bucci -- "reaffirms" what it held. Maj. Op.
at 22. For, in making that contention, my colleagues necessarily
conclude not merely that our panel must accept a prior panel's
holding, but also that our Circuit must do so because the Supreme
Court has held the same.
II.
In making that additional holding, my colleagues point
first to the fact that Carpenter "explicitly protect[s]
conventional surveillance techniques." Maj. Op. at 22. But, I do
not read that statement in Carpenter to affirm Bucci.
Carpenter did describe the acquisition of the cell-site
location records at issue in that case as having been enabled by
"modern cell phones," which, unlike predecessor phones,
"generate[] increasingly vast amounts of increasingly precise"
cell-site location information. 138 S. Ct. at 2212. It is also
true that, as my colleagues note, published cases involving the
use of video pole camera surveillance date back to the late 1980s.
See United States v. Cuevas-Sanchez, 821 F.2d 248, 250-51 (5th
Cir. 1987) (finding that law enforcement's use of a video pole
camera to surveil the backyard of a home protected by a ten-foot-
high privacy fence was a Fourth Amendment search).
- 49 -
But, the first commercial cell-site tower was erected
years before the first opinions about video pole camera
surveillance that my colleagues highlight were issued, see Jon
Van, Chicago goes cellular, Chi. Trib. (June 3, 2008),
http://www.chicagotribune.com/nation-world/chi-chicagodays-cellu
lar-story-story.html, and the use of locational records from those
towers by law enforcement began at least as early as 2001, see
United States v. Forest, 355 F.3d 942 (6th Cir. 2004), vacated sub
nom. Garner v. United States, 543 U.S. 1100 (2005). I doubt that
Carpenter meant to embrace a construction of the Fourth Amendment
that would cast doubt on law enforcement's use of sophisticated
technologies to conduct surveillance if they emerged just over a
decade after the bicentennial of the Constitution but endorse them
if they occurred on its eve. Thus, in referring to "conventional
surveillance techniques and tools," Carpenter, 138 S. Ct. at 2220,
I do not understand the Court to have signaled that it had in mind
even a quite contemporary variant of the stakeout rather than
simply its age-old predecessor.
My colleagues also rightly point out, however, that
Carpenter expressly names "security cameras" as a type of
"conventional" surveillance tool, Maj. Op. at 24 (quoting
Carpenter, 138 S. Ct. at 2220), and they contend that video pole
cameras like the one used here "are easily thought" of as "security
cameras," id. at 3-4. For that reason, they conclude that
- 50 -
Carpenter made clear, in this one brief passage, that it did have
the kind of surveillance that Bucci confronted -- and that we
confront here -- very much in mind.
But, "security camera" is hardly the only way -- or even
the most natural way -- to describe a pole camera like the one at
issue either in Bucci or this case. Conventional "security
cameras" are typically deployed by property owners to keep watch
over their own surroundings, not as a law enforcement tool for
conducting a criminal investigation by peering into property owned
by others. In fact, that Carpenter had only "security cameras" of
the former ilk in mind would appear to be evidenced by the
opinion's choice to make its one reference to them in the very
same sentence that clarifies that the Court "do[es] not disturb"
the case law that addresses a person's expectation of privacy in
information voluntarily handed over to third parties, 138 S. Ct.
at 2220 (discussing United States v. Miller, 425 U.S. 435 (1976)
and Smith v. Maryland, 442 U.S. 735 (1979)). The following
sentence -- in which the Court explained that the opinion also was
not "address[ing] other business records that might incidentally
reveal location information," id. (emphasis added) -- further
supports the conclusion that the Court was referencing "security
cameras" as a "business" record, rather than as a tool deployed by
law enforcement to conduct criminal investigations by surveilling
the comings and goings on the thresholds of private homes. And,
- 51 -
consistent with this same understanding, the government itself
explains in its briefing to us that "a 'security camera' is
typically a private recording system that law enforcement would
access under the third-party doctrine."
That a governmental entity intent on protecting its own
property -- such as a municipal transit authority watching over
its tracks and trains -- may employ such video surveillance in the
same manner as a private business owner is of no moment for
purposes of construing this aspect of Carpenter. We may assume
that Carpenter meant to treat the government in its role as
property owner no differently from a private business with respect
to the use of security cameras for purposes of monitoring places
under its control. For, even with that assumption in place, I do
not see how Carpenter's reference to "security cameras" is best
read impliedly to bless a police department's warrantless and
suspicionless use of a video pole camera continuously and secretly
to surveil the entryways of a private home in an effort to make a
criminal case rather than merely to keep watch over its own parking
lots or station houses as a standard safety precaution that
property owners now routinely take.
Of course, even security cameras used in this
conventional manner by private businesses to keep watch over their
own surroundings -- or by governmental entities to patrol
theirs -- may, in certain instances, pick up images of ordinary
- 52 -
people on a public sidewalk or street. They might even, in certain
cityscapes, capture people going in and out of their residences,
depending on how the camera is aimed.
But, the fact that such cameras -- to say nothing of
cell phones -- capture more and more of the publicly visible spaces
that we find ourselves in hardly suggests to me that Carpenter's
reference to "security cameras" is properly read to be a holding
that no one now has a reasonable expectation of privacy in their
presence in any place in public view that some other property
owner -- whether private or public -- might incidentally record.
And, that being so, I cannot see how Carpenter may be read to go
even a step further and to hold -- by virtue of its reference to
"security cameras" -- that the months-long, uninterrupted video
surveillance of the activities surrounding one's home by law
enforcement invades no privacy expectation that society should be
prepared to accept. In fact, I note that Carpenter said nothing
about security camera footage of someone else's home, let alone
about such footage when it is picked up not in passing by another
property owner's camera, but by law enforcement's use of one for
months for the dedicated purpose of capturing every moment of what
transpires in the curtilage of that residence.17
17 The government is no ordinary property owner, of course,
given the kinds of property that it controls. As my colleagues
note, for example, the City of Springfield, Massachusetts uses its
cameras to monitor for "[t]raffic light configurations,"
- 53 -
For these reasons, I do not read Carpenter to have had
law enforcement's use of video pole cameras like the one at issue
here in mind when it expressly identified the categorical limit on
its holding that my colleagues highlight. Insofar as there is any
doubt on that score, moreover, it is entirely proper for us, as
circuit judges, not to assume that the Court coyly made such a
far-reaching and never-before-announced holding. And that is
especially the case when, to do so, we would have to conclude that
the Court made it implicitly and in passing in the course of an
opinion that otherwise makes such a point of highlighting the
constitutional concerns raised by law enforcement's ever-
increasing capacity to engage in the perfect surveillance of
"[t]raffic backups," "[r]oad closures," "[c]onstruction projects,"
"[s]now plow progress," and "[r]oad conditions," and for
"get[ting] a real time look" when responding to "resident and
business complaints." Real Time Camera's assist DPW, City of
Springfield (Dec. 24, 2013 7:46 AM), https://www.springfield-
ma.gov/dpw/index.php?id=cameras. The further one gets from the
traditional private property owner's use of video surveillance to
keep watch over what they own, however, the less plausible it
becomes to me to conclude that Carpenter meant blithely to sign
off on the notion that the government's use of that type of
surveillance technology for security rather than law enforcement
necessarily poses no threat to individual expectations of privacy
or that such use, in and of itself, renders any such expectation
of privacy in even one's comings and goings to and from one's own
home unreasonable, if such expectation is asserted to support a
contention that the continuous surveillance of those activities by
a government "security camera" constitutes a search. The reductio
of this observation makes the point well enough. 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.
- 54 -
activities that, in a lower-tech world, were clothed in practical
anonymity. Thus, in my view, Carpenter's important caveat that
its holding does not "call into question conventional surveillance
techniques and tools, such as security cameras," 138 S. Ct. at
2220, has no bearing on the question before us.
III.
There does remain the fact that my colleagues find that
Carpenter "leaves intact" the case law on which Bucci relied, Maj.
Op. at 26, and I agree with them that this body of precedent does
hold that, at least ordinarily, a person has no reasonable
expectation of privacy in the activities in which they knowingly
engage in public view. Carpenter is a self-avowedly "narrow"
ruling, 138 S. Ct. at 2220, and it is important that we not read
it to be more disruptive than it inherently is.
But, that same body of precedent, which I agree Carpenter
did not overturn, also contains -- quite expressly -- important
strands that qualify the proposition on which Bucci relied on it
for about the extent of our expectations of privacy in public.
And, because Carpenter, in my view, is best read to draw out those
very strands from those well-settled precedents, I do not read it
to affirm Bucci simply because it does not call into question
several of the key cases on which Bucci relied. Rather, I read
Carpenter at least to raise the question whether Bucci read those
cases -- which we continue to be bound to follow -- correctly in
- 55 -
concluding that they afforded so little Fourth Amendment
protection to the defendant in that case.
For example, Carpenter does reaffirm Katz, on which
Bucci relied, just as my colleagues assert. Indeed, Bucci supports
the conclusion that "[a]n individual does not have an expectation
of privacy in items or places he exposes to the public," 582 F.3d
at 117, by quoting these two sentences from Katz: "[T]he Fourth
Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a
subject of Fourth Amendment protection." Id. (alteration in
original) (quoting Katz, 389 U.S. at 351).
But, immediately following those two sentences, Katz
also includes a critical third sentence that Bucci did not mention:
"But what [a person] seeks to preserve as private, even in an area
accessible to the public, may be constitutionally protected." 389
U.S. at 351. And, notably, it is this omitted third sentence from
Katz that Carpenter relied on to conclude that "[a] person does
not surrender all Fourth Amendment protection by venturing into
the public sphere," 138 S. Ct. at 2217, in the course of holding
that law enforcement's use of technology to surveil a person can,
even when that person is in public, invade a reasonable expectation
of privacy, id.; see also id. (noting that a "majority of this
Court has already recognized that individuals have a reasonable
expectation of privacy in the whole of their physical movements,"
- 56 -
even when those movements are in public (citing Jones, 565 U.S. at
430 (Alito, J., concurring in judgment); id. at 415 (Sotomayor,
J., concurring))).
Bucci also cited, as my colleagues note, the portion of
California v. Ciraolo, 476 U.S. 207 (1986), which, citing Katz,
explained that the "[t]he Fourth Amendment protection of the home
has never been extended to require law enforcement officers to
shield their eyes when passing by a home on public thoroughfares."
Id. at 213; see Bucci, 582 F.3d at 117. And, as my colleagues
note, Carpenter left Ciraolo no less intact than it left Katz.
But, here, too, it is hard to see how Carpenter could be
thought thereby impliedly to have endorsed Bucci's sweeping notion
that one lacks a reasonable expectation of privacy in places that
one exposes to public view. Ciraolo held that a plane carrying
law enforcement could conduct an aerial observation of a backyard
at a height of 1000 feet, and thus it did not address unrelenting
surveillance. 476 U.S. at 213. Moreover, the opinion repeatedly
states -- in passages that Bucci did not cite -- that it upheld
only "naked-eye observation." Id. at 213; see also id. at 210,
212 n.1, 213, 215. For these reasons, I do not read Ciraolo to
endorse the idea that the necessarily fleeting gaze of a single
passerby -- even if aggregated with the similarly casual
observations of other flaneurs -- somehow equates to electronic
- 57 -
surveillance of the more systematic and unrelenting kind that Bucci
confronted.
Finally, Bucci cited to the Supreme Court's decision in
Kyllo v. United States, 533 U.S. 27 (2001), in explaining that the
Court had "not[ed] [the] lawfulness of unenhanced visual
surveillance of a home." 582 F.3d at 117. In doing so, Kyllo did
emphasize, as my colleagues rightly note, that when the Fourth
Amendment was adopted, "[v]isual surveillance was unquestionably
lawful because 'the eye cannot by the laws of England be guilty of
a trespass.'" 533 U.S. at 31-32 (quoting Boyd, 116 U.S. at 628).
And, as my colleagues also rightly note, Carpenter itself invoked
and affirmed Kyllo.
But, Bucci did not address Kyllo's admonitions to courts
to "assure[] preservation of that degree of privacy against
government that existed when the Fourth Amendment was adopted,"
533 U.S. at 34, and not to leave privacy -- and particularly
privacy of the home -- "at the mercy of advancing technology," id.
at 35. Yet, Carpenter quoted and relied on this very portion of
Kyllo, 138 S. Ct. at 2214, and went on to explain that "[p]rior to
the digital age, 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. at
2217 (quoting Jones, 565 U.S. at 429 (Alito, J., concurring in
judgment)). Thus, Bucci did not address the practical fact that
- 58 -
Carpenter suggests, based in part on Kyllo, might well matter most
in a case involving sustained surveillance over many months by a
video pole camera -- that it would be highly unlikely that law
enforcement officers could sit outside a home without being spotted
and observe and catalog every activity that occurred over every
moment of that period of time.
Nor, I should add, did Bucci address Kyllo's statement
that, even if "the technology used in the present case was
relatively crude, the rule we adopt must take account of more
sophisticated systems that are already in use or in development."
533 U.S. at 36. Yet, Carpenter quoted and affirmed that precise
instruction, 138 S. Ct. at 2218-19, which is particularly pertinent
to this type of surveillance, given the pace of technological
innovation when it comes to video, see Br. for The American Civil
Liberties Union and The American Civil Liberties Union of
Massachusetts at 19 (discussing a camera installed at Boston Logan
International Airport around ten years ago that, from 150 meters
away, can see any object as small as a centimeter-and-a-half wide);
see also Br. for The Center for Democracy & Technology at 19-25
(explaining that camera technology that could be applied to pole
cameras in the future allows law enforcement to clandestinely
observe small details with great accuracy and that video analytic
software enables the rapid and targeted search of volumes of
information, as well as provides facial recognition capabilities).
- 59 -
Given the portions of Katz, Ciraolo, and Kyllo that Bucci
did not address, and the light that Carpenter shines on those
portions, there is reason to question, then, whether Bucci was
right to read those cases to support the conclusion that it reached
rather than to require the opposite one. Thus, while my
colleagues' discussion of stare decisis and the fact that Carpenter
did not overrule Katz, Ciraolo, and Kyllo is indisputably correct,
it is also, in my view, of no consequence to any question that we
must answer. If Bucci is wrong, it is not because Carpenter
rejects the Supreme Court precedents on which Bucci relied. If
Bucci is wrong, it is because Carpenter confirms -- by making it
even clearer in retrospect than it already was -- that Bucci
misapplied those precedents from the get-go, by failing to give
any apparent weight to those aspects of them that pointed against
its conclusion.
To the extent that my colleagues' stare decisis concerns
are instead meant to provide a reason for us not to reconsider
Bucci en banc because it is precedent within this Circuit, I cannot
agree. One of the functions of reconsidering our precedent en
banc is to ensure that our Court's precedent accords with the
understandings of the Supreme Court. See Fed. R. App. P. 35. We
thus honor the doctrine of stare decisis -- rather than flout
it -- when, as a Circuit, we reconsider our own panel opinions to
- 60 -
ensure that they align with those of the Supreme Court, past and
present.
IV.
I do not mean to suggest from this comparison of
Carpenter's treatment of Katz, Ciraolo, and Kyllo to Bucci's
treatment of them that Bucci has been stripped of its power to
bind this panel by Carpenter's gloss on them. As I have already
emphasized, Bucci focused on the lack of "fences, gates, or
shrubbery" protecting the defendant's home. 582 F.3d at 116. In
doing so, it identified a factor that arguably bears on the
reasonableness of the defendant's expectation of privacy from the
surveillance that he faced that the surveillance of the defendant
in Carpenter simply did not implicate. Thus, I do not see how our
panel may read Carpenter to free us from adhering to that prior
panel ruling, even if we have doubts about its reasoning.
Nevertheless, I do want to emphasize that Bucci's
treatment of that factor is itself concerning for reasons that are
independent of those that I have already given. For, in
highlighting the countermeasures that the defendant there failed
to take, Bucci gave no apparent consideration to a variety of
factors, including municipal zoning regulations and homeowner
association rules, to say nothing of cost, that commonly disable
a person from erecting barriers to protect against long-term
surveillance of their residences entryways and garages, and not
- 61 -
only in suburban settings. Thus, Bucci did not consider whether
one should have an expectation of privacy -- from unrelenting,
24/7, perfect law enforcement surveillance -- in coming and going
from one's home, even if for reasons of time, circumstance, local
laws, or cash there are no hedgerows to protect against such
surveillance.
Relatedly, Bucci failed to account adequately, in my
view, for those precedents that were then in place -- and that
still are -- that suggested a reason to be particularly concerned
about the privacy interests that were threatened by the special
nature of the pole camera's target -- the immediate area
surrounding the home -- given the activities that take place there.
See U.S. Const. amend. IV (protecting the "[t]he right of the
people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures"); Oliver v. United
States, 466 U.S. 170, 180 (1984) ("[T]he curtilage is the area to
which extends the intimate activity associated with the 'sanctity
of a man's home and the privacies of life' and therefore has been
considered part of home itself for Fourth Amendment purposes."
(quoting Boyd, 116 U.S. at 630)). Indeed, in Ciraolo, which Bucci
did rely on, the Court made a point of emphasizing the concerns
raised by surveillance of that area, though Bucci did not discuss
that portion of that opinion. See Ciraolo, 476 U.S. at 212-13
("The protection afforded the curtilage is essentially a
- 62 -
protection of families and personal privacy in an area intimately
linked to the home, both physically and psychologically, where
privacy expectations are most heightened.").
These limitations in Bucci's analysis loom even larger
than they otherwise might after Carpenter, notwithstanding the
different kind of surveillance that it addressed. Carpenter made
clear that it was concerned that the surveillance tool in that
case gave law enforcement 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 Jones, 565 U.S. at
415 (Sotomayor, J., concurring)). Yet, under Bucci, law
enforcement's warrantless use of a hidden video camera, supplying
a continuous live but also searchable feed to the station house,
is permitted without any judicial oversight, seemingly even if
such a camera is trained on every home in America. And that is
so, notwithstanding that the "time-stamped data," Carpenter, 138
S. Ct. at 2217, that such constant recording creates may include
real-time images of our children playing outside in our yards, our
friends coming to meet us where we live, and our guests arriving
for gatherings of a religious or political nature, to mention only
those of life's privacies around the home that are least likely to
cause us embarrassment or even shame.
- 63 -
So, while I do not read Carpenter to permit us, as a
panel, to disregard Bucci, I do, for these reasons, too, read
Carpenter to underscore the need for us to reconsider Bucci as a
Court. Nor do concerns about reliance interests -- which matter
greatly in the stare decisis calculus -- provide a reason, in my
view, for us to be so wary of shifting course from Bucci that we
must stand by it even if it is wrong. It is never too late for a
Circuit to ensure that its own precedents align with those of the
Supreme Court, and the government's reliance interests in our own
prior precedent here are not strong.
In the event that we were to overrule Bucci en banc, the
good faith exception to the exclusionary rule, see Davis v. United
States, 564 U.S. 229, 232 (2011); cf. United States v. Leon, 468
U.S. 897, 920-22 (1984) -- which the District Court happened to
have found that the government waived in this case -- would likely
provide all the protection that the government would need from
challenges to its use of such video pole cameras during the period
when Bucci was good law. There is thus no tidal wave of backward-
looking litigation in the offing as there may be in some cases.
The reliance interest that the government has in the
future use of such surveillance, moreover, is, as best I can tell,
nonexistent. The government had decades of experience using
eavesdropping technology without a warrant prior to the Supreme
Court's decision in Katz. See Goldman v. United States, 316 U.S.
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129, 135 (1942) (upholding the warrantless use of a detectaphone);
Olmstead v. United States, 277 U.S. 438, 470 (1928) (upholding
warrantless wiretapping). But, that did not stop the Supreme Court
from holding that such a practice violated the Fourth Amendment
once it concluded that it did. See Katz, 389 U.S. at 359. That
a means of surveillance might have provided useful evidence in the
past cannot create a going-forward reliance interest that
insulates its deployment from constitutional challenge in the
future.
V.
I close with one final observation. Our Circuit, not so
long ago, confronted a question as to whether to adopt an approach
to the Fourth Amendment that would be attuned to the threats to
privacy posed by new technological realities despite the absence
of precedent compelling us to do so. See United States v. Wurie,
728 F.3d 1 (2013) (considering whether the search-incident-to-
arrest exception to the warrant requirement allowed officers to
search a seized cell phone following the defendant's arrest). We
opted then to adopt that privacy-protective approach, as we were
concerned that any other one would "create 'a serious and recurring
threat to the privacy of countless individuals.'" Id. at 14
(quoting Arizona v. Gant, 565 U.S. 332, 345 (2009)).
The following year, the Supreme Court upheld our
decision. See Riley v. California, 573 U.S. 373 (2014) (declining
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to extend the search-incident-to-arrest doctrine to allow law
enforcement to conduct warrantless searches of modern cell
phones). It did so in the course of emphasizing once again the
threats that technological advances pose to Fourth Amendment
rights. See id. at 393-95.
The questions that this case raises strike me as similar
in kind. Practical limitations of law enforcement budgets may
constrain the circumstances in which ever-present video
surveillance of our homes' entryways by hidden pole cameras zooming
in on us will occur. So, too, might democratic objection. But,
at present, Congress has placed no legislative limits on law
enforcement's use of such cameras to investigate crime, even though
there is no reason to believe that the lack of such legislation is
a consequence of popular approval of the practice. We thus have
no such legislative judgment to grant deference.
Especially after Carpenter, and what it retrospectively
confirms about how a prior panel of ours may have misread some of
the key Supreme Court decisions in this area, we should not approve
this degree of unchecked law enforcement surveillance based on
only the more-than-decade-old paragraph of analysis that Bucci
provides. The sense of privacy that we take for granted -- even
when in public -- is, as Carpenter confirms, important to protect.
But, it bears emphasizing, the decisions that even lower courts
make about whether to protect it do more than affect the evidence
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that may be used in particular criminal cases against particular
defendants who have been secretly recorded. They
shape -- collectively -- the society in which we live by helping
to frame the expectations of privacy of even those who are not
surveilled about the freedom that they enjoy under the
Constitution.
The awareness that such surveillance is permitted -- and
that we should all expect that it is -- may do as much to constrain
our sense of what we are free to do as any actual surveillance.
It is thus the expectations of privacy that society is prepared to
accept as legitimate, more than the exclusion of evidence that
courts order in response to them, that ultimately make it possible
for people to go about their lives in ways that reflect that our
society is in practice -- and not just in name -- a free one.
Accordingly, although I concur in the result that the
majority reaches, I think it is important to make it clear that I
do not share the view that it is one that the Supreme Court has
already approved. Rather, in my view, 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 is one that the Supreme Court's decisions, from
Katz to Carpenter, prohibit.18
18There is an issue about how a court could implement this
expectation of privacy if it depends for its existence on the
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duration of the surveillance. But, courts often confront
durational issues in the context of the Fourth Amendment, see
Carpenter, 138 S. Ct. at 2217 n.3 (finding that "accessing seven
days of [cell-site location information] constitutes a Fourth
Amendment search"); United States v. Knotts, 460 U.S. 276, 283-85
(1983) (upholding law enforcement's use of a device to track a
vehicle for a single car trip but cautioning that "different
constitutional principles may be applicable" if technology allowed
for "twenty-four hour surveillance of any citizen of this country
. . . without judicial knowledge or supervision"); cf. United
States v. Sharpe, 470 U.S. 675, 685 (1985) (explaining that, in
considering an investigative stop under Terry v. Ohio, 392 U.S. 1
(1968), there is "no rigid time limitation" and there may be
"difficult line-drawing problems in distinguishing an
investigative stop from a de facto arrest"), so that difficulty
does not strike me as a dispositive one. Similarly, there is an
issue whether there may be limitations short of the requirement to
obtain a warrant or to show probable cause that would ensure that
the use of a pole camera like this one is not "unreasonable." U.S.
Const. amend. IV (protecting the "[t]he right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures"); cf. Commonwealth v.
McCarthy, 142 N.E.3d 1090, 1110 (Mass. 2020) (Gants, C.J.,
concurring) (addressing the standards for permitting law
enforcement's use of a searchable database of license plates).
But, that question only arises if Bucci's no-search holding no
longer binds.
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