BOSTON (CN) — Can police install a secret video camera outside someone’s home and record everything that happens there for eight months? The First Circuit seemed dubious during oral argument Tuesday, but the judges also struggled to figure out where to draw the line as to when police need a warrant for their high-tech surveillance.
“Wouldn’t many of us feel insecure if we suddenly found out a camera was recording everything that happened in the curtilage of our house?” asked U.S. Circuit Judge William Kayatta.
“That would make me feel insecure,” the Obama appointee said. “Why wouldn’t most people feel that way?”
U.S. Circuit Judge O. Rogeriee Thompson, a fellow Obama appointee, complained that the government was arguing that its right to spy on people “should be limitless.”
“Are we just going to put these cameras in front of everybody’s house and monitor them and see if anybody’s up to anything?” she asked.
But in a contentious argument that was scheduled for 40 minutes and lasted two hours, U.S. Circuit Judge Sandra Lynch insisted over and over again that the fact that a police officer could walk by a house and see what was happening outside meant that the government had a right to use a hidden camera to see what was happening outside all day long for months on end.
“What reasonable expectation of privacy do people have in criminal activity in their driveway?” the Clinton appointee asked, repeatedly suggesting that the snooping in this case was justified by the fact that it appeared to have turned up evidence of wrongdoing.
The case involved Daphne Moore, a former assistant clerk-magistrate with the Springfield, Massachusetts, court system, as well as her daughter and son-in-law. Police charged members of the family with trafficking drugs from Springfield to Vermont where they would exchange them for cash and firearms.
Much of the evidence came from a secret video camera that police mounted on a utility pole outside Moore’s home, where her daughter and son-in-law were frequent guests. The camera recorded everything that happened outside the home and produced a searchable digitized record.
Police officers were able to tilt and pan the camera, as well as zoom in to read license plates, although they couldn’t see inside the home or record audio.
The First Circuit approved a similar camera back in 2009. But the Moores argued that the 2009 case was no longer valid after a 2018 Supreme Court decision that said the Fourth Amendment could be violated by a cellphone-location-tracking device.
A federal judge sided with the Moores in June 2019, ruling that the camera evidence couldn’t be used at trial because the police didn’t have a warrant. A year later, a three-judge panel of the First Circuit disagreed and sided with the government. But the court agreed to rehear the case en banc at the urging of U.S. Circuit Judge David Barron.
Barron, an Obama appointee, said it would be perfectly fine for a police officer to walk by the Moores’ home and take a photo, but the continual surveillance for months on end created a higher level of concern. He compared it to the difference between a runner on second base occasionally stealing a catcher’s signals, and the home team installing a secret camera and videotaping the opposing team’s catcher at all times.
The American Civil Liberties Union and a large number of press and other civil liberties organizations waded into the case on the side of the Moores.
Police could abuse the technology, the ACLU warned, suggesting that if officers didn’t need a warrant for a utility pole camera, they could “watch ex-girlfriends, or ascertain who is attending Black Lives Matter protests, or catalog who is leaving home during the pandemic, or track undocumented immigrants.”
