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United States v. Moore-Bush

United States District Court, D. Massachusetts

June 3, 2019





         Casual observations of a person's forays in and out of her home do not usually fall within the Fourth Amendment's protections. Here, the defendants ask the Court to consider whether a precise video log of the whole of their travels in and out of their home over the course of eight months, created by a camera affixed to a utility pole that could also read the license plates of their guests, raises Fourth Amendment concerns. After a thorough analysis of the parties' arguments and recent Supreme Court authority, the Court rules that it does. Accordingly, the Court ALLOWS the defendants' motions to suppress, ECF Nos. 326, 358.


         A. Procedural History

         A federal grand jury indicted defendant Nia Moore-Bush ("Moore-Bush") on January 11, 2018. ECF No. 3. Almost a year later, on December 20, 2018, the grand jury returned a superseding indictment naming defendant Daphne Moore ("Moore"), Moore-Bush's mother, as well. ECF No. 206. Moore and Moore-Bush moved on April 22 and May 2, 2019, respectively, to suppress evidence that the Government collected using a video camera installed on a utility pole across the street from Moore's house (the "Pole Camera").[1] See Def. Daphne Moore's Mot. Suppress ("Moore Mot."), ECF No. 326; Def. Nia Moore-Bush's Mot. & Mem. Suppress ("Moore-Bush Mot."), ECF No. 358. Moore-Bush and Moore argue that the Government's use of the Pole Camera constituted a search under the Fourth Amendment to the United States Constitution. See generally Moore Mot.; Moore-Bush Mot. The Government opposed the motions to suppress on May 6, 2019. Government's Opp'n Defs.' Mots. Suppress Pole Camera Evidence ("Gov't Opp'n"), ECF No. 367.

         On March 13, the Court heard oral argument on the motion and took it under advisement. Electronic Clerk's Notes, ECF No. 396. For the following reasons, the Court ALLOWS the motions to suppress.

         B. Facts

         The Court draws the facts from the parties' undisputed statements at the motion hearing and in their briefing.

         The Government installed the Pole Camera on a utility pole across the street from Moore's house, located at 120 Hadley Street, Springfield, Massachusetts. Gov't Opp'n 1. The Pole Camera captured video of, but not audio from, events occurring near the exterior of Moore's house for approximately eight months. Gov't Opp'n 2; Tr. 15:4, ECF No. 414. During this time, Moore-Bush resided in Moore's house. Gov't Opp'n 1.

         The Pole Camera surveilled the driveway and part of the front of Moore's house. Tr. 34:13-15; Gov't Opp'n 2, 4. A tree partially obscured its view. Gov't Opp'n 2. Although the Pole Camera could zoom in so as to permit law enforcement officers to read license plates, it could not peer inside windows. Tr. 26:5-22. Law enforcement officers also could pan and tilt the camera. Gov't Opp'n 3. Additionally, law enforcement officers could operate the Pole Camera's zoom feature remotely. Tr. 13:19-14:14. The Pole Camera produced a digitized recording that the Government could search. Tr. 16:2-16.

         Although the Government has not stated the exact nature of the evidence that it seeks to admit from the Pole Camera, the parties assume that the Government will introduce video, much of it the Pole Camera recorded well into its eight-month existence. Tr. 20:5-23, 35:1-14.


         Moore-Bush and Moore argue that the Pole Camera's eight-month video log of Moore's house constitutes an unconstitutional search. Moore-Bush Mot. 1; Moore Mot. 1.

         The Fourth Amendment to the United States Constitution guarantees:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

         The Government does not justify its use of the Pole Camera with a warrant or probable cause. See generally Gov't Opp'n. Instead, it insists that its use of the Pole Camera does not amount to a search. Id. at 2. Consequently, as the parties have presented this case, the use of the Pole Camera violates the Fourth Amendment if its operation constitutes a search. Although there are some exceptions - none of which the Government invokes here[2] - courts exclude evidence that federal officers obtain using a search that violates the Fourth Amendment. See United States v. Dedrick, 840 F.Supp.2d 4 82, 492 (D. Mass. 2012) (citing Mapp v. Ohio, 367 U.S. 643 (1961)).

         The Supreme Court has formulated two tests for analyzing whether the Government has conducted a Fourth Amendment "search." See United States v. Bain, 874 F.3d 1, 11-12 (1st Cir. 2017). For one, "[u]nder the common law trespassory test," a Fourth Amendment search occurs "[w]hen the Government obtains information by physically intruding on persons, houses, papers, or effects." Id. at 12 (quoting Florida v. Jardines, 569 U.S. 1, 5 (2013)). In this case, neither Moore-Bush nor Moore assert that a search occurred under the common law trespassory test. See generally Moore-Bush Mot.; Moore Mot.

         Instead, they rely on the "reasonable expectations test." See id.; Bain, 874 F.3d at 12. Under this test, "a search occurs whenever the government intrudes upon any place in which a person has a 'reasonable expectation of privacy.'" Bain, 874 F.3d at 12 (quoting Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring)). To show that a search occurred under this test, then, each defendant has the burden of showing that (1) she "exhibited an actual, subjective expectation of privacy'' and (2) her "subjective expectation is one that society is prepared to recognize as objectively reasonable." See United States v. Morel, 922 F.3d 1, 8 (1st Cir. 2019) (quoting United States v. Rheault, 561 F.3d 55, 59 (1st Cir. 2009); United States v. Stokes, 829 F.3d 47, 51 (1st Cir. 2016)).

         Although the reasonable expectations test represents a relatively recent doctrinal innovation, the Supreme Court has taught that the public's understanding of unreasonable searches at the Fourth Amendment's framing informs the test's application. See Carpenterv.United States, 138 S.Ct. 2206, 2214 (2018) (quoting Carrollv.United States, 267 U.S. 132, 149 (1925)). The Supreme Court thus has identified two "basic guideposts" from history: "First, that the [Fourth] Amendment seeks to secure "the privacies of life' against "arbitrary power.' Second, and relatedly, that a central aim of the Framers was 'to place obstacles in the way of a too permeating police surveillance.'" Id. (quoting Boydv.United States, 116 ...

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