SJC: warrant needed to deploy pole cameras

Decision latest exploring privacy, use of new tech

Kris Olson//August 13, 2020//

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Police who used pole cameras to record around-the-clock footage at the homes of two criminal defendants were conducting a search under Article 14 of the state constitution and should have sought a warrant, the Supreme Judicial Court has ruled.

At the defendants’ urging, the court extended the “mosaic theory” it had adopted earlier this year in Commonwealth v. McCarthy to establish that the defendants had a reasonable expectation of privacy in the information investigators had gathered. McCarthy involved four automatic license plate readers placed in fixed positions on the ends of the two bridges leading to Cape Cod.

Writing for the court in McCarthy, Justice Frank M. Gaziano noted that a “detailed account of a person’s movements, drawn from electronic surveillance, encroaches upon a person’s reasonable expectation of privacy because the whole reveals far more than the sum of the parts.”

Applying the mosaic theory, the SJC found that the use of the license plate reader technology on Cape Cod did not constitute a search under Article 14.

But in the present case, Commonwealth v. Mora, the use of pole cameras did, at least when used to record the comings and goings from the homes of two men accused of being part of a drug distribution network, the court found.

Writing for the court in Mora, Justice Barbara A. Lenk noted that most courts, including the 1st Circuit earlier this year in United States v. Moore-Bush, have ruled that pole camera surveillance does not infringe on any reasonable expectation of privacy because it falls under the “public view” principle that an individual does not have an expectation of privacy in items or places he exposes to the public.

But Lenk said courts have begun to reassess pole camera surveillance following the U.S. Supreme Court’s decisions in United States v. Jones and Carpenter v. United States, which discussed how extended GPS vehicle tracking and CSLI surveillance can intrude on reasonable expectations of privacy.

Not the final word

While the Supreme Judicial Court’s decision in Commonwealth v. Mora offers further clarity on the lens through which the court will conduct future reviews of investigators’ use of technology, it will hardly be the court’s last pronouncement on such issues.

In October, the SJC is scheduled to hear oral arguments in Commonwealth v. Zachery, in which the data at issue is tied to a Charlie Card found in the possession of a murder defendant upon his arrest.

Using that data, investigators were able to refine their search of troves of MBTA security camera footage and ultimately find evidence that tied the defendant, Josiah Zachery, to the crime.

“Obviously, the SJC has taken an interest in cases like both Zachery and Mora out of obligation,” said Zachery’s attorney, Jennifer H. O’Brien of Billerica. “As technology continues to advance, the courts must keep up.”

O’Brien noted the important role courts have to play in safeguarding constitutional rights, given the ever-increasing challenge individuals have in protecting their own private information. She said most major crimes these days are solved using information from cellphones and cell towers and would have remained unsolved if they had occurred in 1980.

To O’Brien, the actions of police in her client’s case were more egregious than in Mora.

“While the cameras did not record Zachery at his residence, the footage in Mora was limited to a single location,” she said. “Zachery was observed in several locations on various days and even on a single day. Thus, it showed him not just at his home but where he went after leaving his home.”

In Zachery’s case, detectives received over a year’s worth of data without a warrant based on a single phone call to the MBTA, she said. By tracking Zachery’s movements over that span, detectives obtained as much of a “mosaic” of the private details of his life as investigators had in Mora.

Meanwhile, in the federal courts, the final chapter may not have been written on the 1st U.S. Circuit Court of Appeals’ decision in U.S. v. Moore-Bush. There is a pending petition for an en banc rehearing of that case, to which Judge David J. Barron implicitly lent his support in the concurrence he wrote to the court’s June 16 decision.

In his opinion, Barron expresses his disagreement with the panel’s majority over whether the U.S. Supreme Court’s decision in Carpenter v. United States provides a basis for abandoning what the majority determined was the “law of the circuit” with respect to pole cameras, announced in its 2009 decision in United States v. Bucci.

The majority noted that Bucci is “factually indistinguishable” from Moore-Bush.

Lenk stressed that the court was not reaching the question with which the federal courts have been grappling: whether continuous, long-term pole camera surveillance targeted at defendants’ residences is a search within the meaning of the Fourth Amendment.

But it “certainly was a search under art. 14,” she said.

“If the home is a ‘castle,’ a home that is subject to continuous, targeted surveillance is a castle under siege,” Lenk wrote. “Although its walls may never be breached, its inhabitants certainly could not call themselves secure.”

The 31-page decision is Commonwealth v. Mora, Lawyers Weekly No. 10-126-20.

Ever-evolving body of law

Stephen D. Judge of Salem, who argued before the SJC on behalf of the defendants in Mora, said he was particularly gratified that the decision was unanimous, amplifying its statement that being secure in one’s home means more than not having its four walls breached.

To Jessie J. Rossman of the ACLU of Massachusetts, one of the most important statements in Mora was the SJC saying the government had “misapprehended” previous cases dealing with the reasonable expectation of privacy implicated by location tracking technologies.

“The court made clear its prior jurisprudence with respect to technology and Article 14 had really turned not on the specific technology being used, or even the specific type of information collected, but rather on an understanding of when the government was using technology to conduct targeted surveillance for a long enough period of time to use the aggregated data to paint an intricate picture of someone’s life that would have otherwise been unobtainable,” she said.

Judge said the adoption of the mosaic theory will prove valuable as the SJC is called upon to rule on searches conducted with the “infinite” forms of law enforcement technology already in existence and to come, which sometimes is revealed only after dogged efforts by defense attorneys.

“We can fight for it, we can file discovery motions, but it doesn’t mean we always get to the bottom of it,” he said.

Given that, it was important for the SJC to signal that it is going to look at every state action geared toward seizing private information with a critical eye, Judge said.

“The bottom line is the potential for abuse [with technology] is huge,” he said.

An important facet of the decision, Judge added, is that the onus was appropriately put on the government to justify its intrusions, rather than placing the burden on individuals to take extraordinary measures to conceal their private information.

Judge’s co-counsel, Elliot M. Weinstein of Boston, agreed.

“No one should think, just because they are out and about using the tools of society, whether it’s a cellphone, electronic toll collection, or a Charlie Card, it automatically allows government to gather data and put together a tracing pattern of all our daily activities,” he said.

“The bottom line is the potential for abuse [with technology] is huge.”
— Stephen D. Judge, Salem

As future issues in the area arise, footnote 10 in the court’s opinion will be cited often, predicted Matthew D. Spurlock of the Committee for Public Counsel Services’ appeals unit.

In that footnote, the SJC laid out some of the factors that will be relevant when assessing whether a surveillance effort amounts to a search, “i.e., whether it was so targeted and extensive that the data amassed thereby enabled police to expose otherwise unknowable details of an individual’s life.”

Searchable footage aplenty

After a confidential informant identified defendant Nelson Mora as a large-scale drug distributor in November 2017, an undercover officer began making the first of what would be 10 controlled purchases of oxycodone and fentanyl from him.

Shortly after the first controlled purchase, investigators installed a pole camera near Mora’s Lynn home on Dec. 6, 2017.

Investigators set up another camera near the home of a second defendant, Randy Suarez of Peabody, on March 23, 2018.

In both cases, investigators had a view of the defendants’ front doorways.

Investigators also installed three other pole cameras, and all five cameras recorded continuously, 24 hours a day, seven days a week, until May 23, 2018, meaning Mora’s home was filmed for 169 days and Suarez’s for 62. The footage could be viewed in real time using an internet browser and was also saved in a searchable format.

After Mora, Suarez and 10 other defendants were arrested, investigators obtained search warrants for several locations, including the homes of Mora and Suarez, and recovered substantial quantities of heroin, cocaine and other illicit substances, and $415,000 in cash.

Mora, Suarez and the other defendants then moved to suppress the pole camera footage and evidence derived from it.

Superior Court Judge Timothy Q. Feeley denied the motions on the grounds that the pole camera surveillance did not violate the defendants’ reasonable expectations of privacy because it captured only information that was otherwise visible to the public and thus did not constitute a search in the constitutional sense.

Feeley distinguished the video footage from location tracking data such as GPS monitoring and cell site location information on the basis that the cameras covered only a fixed point and did not track the defendants through public and private spaces, thereby revealing details about their private associations.

Commonwealth v. Mora, Lawyers Weekly No. 10-126-20 (31 pages)

THE ISSUE: Is the prolonged, targeted surveillance of a criminal defendant’s home through the use of a pole camera a search under Article 14, such that police should be required to obtain a warrant before installing the cameras?

DECISION: Yes (Supreme Judicial Court)

LAWYERS: Gina Masotta and Anna E. Lumelsky, of the Attorney General’s Office (commonwealth)

Stephen D. Judge of Salem; Elliot M. Weinstein of Boston; Mark G. Miliotis of Miliotis & McQuade, Boston (defense)

A single justice allowed the consolidated interlocutory appeals of Mora, Suarez and another defendant challenging the denial of their motions to suppress and ordered that the appeal proceed before the SJC.

In part because police departments across the country have used pole cameras for at least three decades without seeking warrants, instead of directing the Superior Court to suppress the fruits of the use of the pole cameras, the SJC remanded the case for an evidentiary hearing. At that hearing, prosecutors will be given the opportunity to establish that the installation of the cameras had been supported by probable cause.

Nosy neighbor

In terms of whether Mora and Suarez had manifested a subjective expectation of privacy in their activities that had been recorded, the SJC rejected the prosecution’s argument that the defendants’ failure to erect fencing or other barriers to shield their activities was significant.

The court worried that such a rule would make the protections of the Fourth Amendment and Article 14 “too dependent on the defendants’ resources,” as the capacity to build privacy fences or other structures likely would correlate closely with land ownership and wealth.

“We will not undermine these long-held egalitarian principles by making the protections of art. 14 contingent upon an individual’s ability to afford to install fortifications and a moat around his or her castle,” Lenk wrote.

The SJC also rejected the prosecution’s contention that what the cameras had gathered was indistinguishable from what could have been collected by an officer conducting direct surveillance.

“Unlike a police officer, a pole camera does not need to eat or sleep, nor does it have a family or professional concerns to pull its gaze away from its target,” Lenk wrote.

Moreover, even if human beings could have replicated the months of pole camera surveillance without being discovered, the pole cameras captured information that a police officer conducting in-person surveillance could not, Lenk said. She pointed to the ability of investigators to “comb through” the searchable digital archive “at will.”

The long-term pole camera surveillance thus created a “far richer profile of those defendants’ lives than would have been possible through human surveillance,” Lenk wrote.

A reasonable person expects that a neighbor will notice some of their comings and goings, Lenk allowed.

“Even the prototypical nosey neighbor, Gladys Kravits from the 1960s television show, ‘Bewitched,’ however, occasionally put down her binoculars and abandoned her post at the window to eat and sleep,” Lenk wrote.