Search and seizure – Pole cameras – Probable cause

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Where a judge denied a motion to suppress evidence obtained through hidden video cameras on public telephone and electrical poles, a remand is necessary for further findings as to whether investigators had probable cause when the cameras were first installed.

“Over a period of seven months, the Attorney General investigated an alleged drug distribution network based in Essex County. At different times during the course of the investigation, officers installed a total of five hidden video cameras on public telephone and electrical poles. Three of these cameras were aimed towards homes of alleged members of the drug conspiracy. Using the video footage collected by these ‘pole cameras,’ in addition to other evidence, the Commonwealth secured indictments against twelve defendants, including the defendants Nelson Mora, Ricky Suarez, and Lymbel Guerrero. Eight defendants moved to suppress the pole camera footage, and evidence derived from that footage, as the fruits of an unreasonable search, in violation of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. A Superior Court judge denied their motions on the ground that the pole camera surveillance did not constitute a search in the constitutional sense.

“We conclude that the continuous, long-term pole camera surveillance targeted at the residences of Mora and Suarez well may have been a search within the meaning of the Fourth Amendment, a question we do not reach, but certainly was a search under art. 14. We remand for further findings as to whether investigators had probable cause to conduct these searches when the cameras targeted at Mora’s and Suarez’s houses were first installed. …

“On appeal, the central question remains whether the pole camera surveillance of Mora, Suarez, and Guerrero was a warrantless search in violation of the Fourth Amendment or art. 14, such that the evidence gathered through that surveillance should be suppressed. We first must decide whether any of the surveillance in this case was a ‘search’ in the constitutional sense. …

“To show that the use of pole cameras in this case was a ‘search’ under art. 14, the defendants bear the burden of establishing that (1) they ‘manifested a subjective expectation of privacy in the object of the search,’ and (2) ‘society is willing to recognize that expectation as reasonable.’ …

“For the reasons to be discussed, we conclude that Mora and Suarez have established that they manifested a subjective expectation of privacy in the aggregate of their activities captured by the security cameras. Guerrero, however, has not. …

“To the extent that the pole cameras in this case surveilled the defendants away from their own homes, we conclude that this surveillance, like the [automatic license plate reader (ALPR)] use in [Commonwealth v. McCarthy, 484 Mass. 493 (2020)], was not a search in the constitutional sense. …

“In the circumstances here, the limited pole camera surveillance of Mora and Suarez away from their homes did not collect aggregate data about the defendants over an extended period. Without such data, the cameras similarly did not allow investigators to generate a mosaic of the defendants’ private lives that otherwise would have been unknowable. … Therefore, as we held in McCarthy, this limited surveillance falls within the general rule that a person has no reasonable expectation of privacy in what he or she knowingly exposes to the public. …

“The long-term and continuous surveillance of Mora’s and Suarez’s homes, however, calls for a different analysis. …

“Rather than focus solely on whether a surveillance technology tracks a person’s public movements, our analysis under art. 14 turns on whether the surveillance was so targeted and extensive that the data it generated, in the aggregate, exposed otherwise unknowable details of a person’s life. … This combination of duration and aggregation in the targeted surveillance here is what implicates a person’s reasonable expectation of privacy. …

“All told, the targeted, long-duration pole camera surveillance of Mora’s and Suarez’s homes provided the police with a far richer profile of those defendants’ lives than would have been possible through human surveillance. A reasonable person must anticipate that a neighbor could observe some of the comings and goings from his or her residence. Even the prototypical nosey neighbor, Gladys Kravitz from the 1960s television show, ‘Bewitched,’ however, occasionally put down her binoculars and abandoned her post at the window to eat and sleep. We do not believe that a resident would expect that every activity would be taped, stored, and later analyzed as part of a months-long pattern of behavior. A briefer period of pole camera use, or one that is not targeted at a home, might not implicate the same reasonable expectation of privacy. We need not decide in this case where that boundary lies. It is enough to conclude that the warrantless surveillance of Mora’s and Suarez’s residences for more than two months was a ‘search’ under art. 14. In the future, before engaging in this kind of prolonged surveillance, investigators must obtain a warrant based on probable cause. …

“… Because of the long-standing use and judicial approval of pole camera surveillance, we conclude that remand similarly is appropriate here to determine ‘whether, in the particular circumstances of this case, the Commonwealth is able to meet that warrant requirement through a demonstration of probable cause.’ …

“… If the Commonwealth can show that investigators had probable cause when each of the pole cameras was installed, and thus were not acting in a wholly arbitrary manner, the motions to suppress should be denied in their entirety. If not, the motions should be allowed only as to the surveillance of Mora and Suarez by the cameras targeted at their residences.”

Commonwealth v. Mora (and two companion cases) (Lawyers Weekly No. 10-126-20) (31 pages) (Lenk, J.) Pretrial motions to suppress evidence were heard by Timothy Q. Feeley, J., in Superior Court. Stephen D. Judge for the defendants; Anna Lumelsky for the commonwealth; Jennifer Lynch and Andrew Crocker, of California, Gregory T. Nojeim, of the District of Columbia, and Matthew R. Segal, Jessie J. Rossman, Kristin M. Mulvey and Nathan Freed Wessler, for American Civil Liberties Union and others, amici curiae, submitted a brief (Docket No. SJC-12890) (Aug. 6, 2020).

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