Case 3:18-cr-30001-WGY Document 422 Filed 06/04/19 Page 1 of 25

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________
)
UNITED STATES OF AMERICA )
)
v. ) CRIMINAL ACTION
) NO. 3:18-30001-WGY
NIA MOORE-BUSH and )
DAPHNE MOORE, )
)
Defendants. )
___________________________________)

YOUNG, D.J. June 4, 2019

AMENDED MEMORANDUM AND ORDER *

I. INTRODUCTION

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.

* This amended memorandum and order deletes a superfluous

word in footnote 5 and corrects a citation in section IV.B.2.
 Case 3:18-cr-30001-WGY Document 422 Filed 06/04/19 Page 2 of 25

II. BACKGROUND

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.

1Defendant Oscar Rosario also moved to suppress the Pole

Camera’s video, ECF Nos. 321 & 332, but he pled guilty on May
13, 2019, thereby obviating resolution of his motion, ECF No.
393.

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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

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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.

III. LEGAL FRAMEWORK

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

2 For instance, the Government might have argued that the

good faith exception to the exclusionary rule applies to its use
of the Pole Cameras. See Davis v. United States, 564 U.S. 229,
239 (2011) (holding that the exclusionary rule does not apply

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officers obtain using a search that violates the Fourth

Amendment. See United States v. Dedrick, 840 F. Supp. 2d 482,

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

“when the police conduct a search in objectively reasonable

reliance on binding judicial precedent”). It did not.
Accordingly, the Government did not carry its “‘heavy burden’ of
proving that the good-faith exception applies.” See United
States v. Wurie, 728 F.3d 1, 13 (1st Cir. 2013) (quoting United
States v. Syphers, 426 F.3d 461, 468 (1st Cir. 2005)), aff'd sub
nom. Riley v. California, 573 U.S. 373 (2014). The Government
thereby waived that argument. See United States v. Ramirez-
Rivera, 800 F.3d 1, 32 (1st Cir. 2015).

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(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 Carpenter v. United States, 138 S. Ct. 2206,

2214 (2018) (quoting Carroll v. 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 Boyd v. United States, 116

U.S. 616, 630 (1886); United States v. Di Re, 332 U.S. 581, 595

(1948)). These timeless guideposts point the Court on its way

towards resolving this motion.

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IV. ANALYSIS

The Court ALLOWS Moore-Bush and Moore’s motion to suppress

because they have exhibited an actual, subjective expectation of

privacy that society recognizes as objectively reasonable. See

Morel, 922 F.3d at 8. First, the Court infers from their choice

of neighborhood that they subjectively expected that their and

their houseguests’ comings and goings over the course of eight

months would not be surreptitiously surveilled. See Moore Mot.

7. Second, the Court rules that the Pole Cameras collected

information that permitted the Government to peer into Moore-

Bush and Moore’s private lives and constitutionally protected

associations in an objectively unreasonable manner. See United

States v. Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J.,

concurring).

A. Subjective Expectation of Privacy

Moore-Bush and Moore have established that they had a

subjective expectation of privacy in their and their guests’

comings and goings from Moore’s house.

As a preliminary matter, the Government suggests that, to

establish this prong of the test, Moore-Bush and Moore needed to

file affidavits or otherwise testify to their expectations. See

Gov’t Opp’n 4 (citing United States v. Ruth, 65 F.3d 599, 604-05

(7th Cir. 1995)). The First Circuit requires nothing of the

sort: In United States v. Rheault, the First Circuit rejected a

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similar suggestion and instead inferred a subjective expectation

of privacy from the defendant’s actions. 561 F.3d at 59. The

Court thus analyzes whether Moore-Bush and Moore have manifested

a subjective expectation of privacy through the relevant actions

that they took.

Moore-Bush and Moore contend that they have established a

subjective expectation of privacy by choosing to live in a

quiet, residential neighborhood in a house obstructed by a large

tree. Moore Mot. 7. 3 The Government maintains that this amounts

to insufficient “conjecture” and “speculation.” Gov’t Opp’n 4-

5. Further, the Government tries to turn Moore-Bush and Moore’s

tree argument around on them: It insists that the tree

“miminiz[ed] any potential intrusion.” Id. at 5.

The Government sidesteps Moore-Bush and Moore’s asserted

privacy interest: it focuses on whether Moore-Bush and Moore

had a broader privacy interest in the front of their house. See

Gov’t Opp’n 4. Construed broadly, perhaps they did not. See

3 The Court imputes Moore’s expectations to Moore-Bush. See

Minnesota v. Olson, 495 U.S. 91, 99–100 (1990) (observing that
“an adult daughter temporarily living in the home of her
parents” has an expectation of privacy in her parents’ home).
In opposing the motion, it seems that the Government does so,
too. See Gov’t Opp’n 4 (stating “by pointing out just the tree,
Defendants effectively acknowledge that there are no fences,
shrubs, or other constructions that suggest that the inhabitants
meant to shield the front of the house or driveway from public
view” but then stating that “[t]he Defendant, however, uses the
reference . . . to the solitary tree”) (emphasis added).

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California v. Ciraolo, 476 U.S. 207, 213 (1986) (observing that

law enforcement officers need not “shield their eyes when

passing by a home on public thoroughfares”).

Yet that is not the narrower privacy interest that Moore-

Bush and Moore assert here. Instead, Moore-Bush and Moore claim

that they 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.

Moore Mot. 9-10; Moore-Bush Mot. 5. The Court infers from

Moore-Bush and Moore’s choice of neighborhood and home within it

that they did not subjectively expect to be surreptitiously

surveilled with meticulous precision each and every time they or

a visitor came or went from their home.

Therefore, the Court rules that Moore-Bush and Moore meet

the first prong of the reasonable expectations test. See United

States v. Childs, Crim. A. No. 06-10339-DPW, 2008 WL 941779, at

*7 (D. Mass. Apr. 4, 2008) (Woodlock, J.) (inferring from

“circumstantial evidence” that the defendant “had a subjective

expectation of privacy”).

B. Objectively Reasonable Expectation of Privacy

Moore-Bush and Moore’s expectation of privacy “is one that

society is prepared to recognize as objectively reasonable.”

See Morel, 922 F.3d at 8.

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The First Circuit previously approved the use of a pole

camera in United States v. Bucci, 582 F.3d 108, 116-17 (1st Cir.

2009). Bucci, however, no longer binds this Court in light of

subsequent Supreme Court precedent undermining it. See

Carpenter, 138 S. Ct. at 2217-18. Consequently, this Court

considers the issue as matter of first impression and rules that

the surveillance conducted here exceeds the objectively

reasonable expectation of privacy of the public at the time of

the Fourth Amendment’s framing. See id. at 2214.

1. Bucci Does Not Control

Moore-Bush and Moore offer two reasons why Bucci ought not

dictate the outcome here. First, they claim that Bucci’s

holding is limited to the camera that the Government used there,

which had fewer capabilities than this Pole Camera. Moore-Bush

Mot. 2-3; Moore Mot. 7. Second, they argue that Carpenter

changed the law and requires a different result. Moore-Bush

Mot. 3-6; Moore Mot. 8-12. The Court disagrees with Moore-Bush

and Moore’s first contention and agrees with their second.

True, the First Circuit noted some factual distinctions

between the camera in Bucci and the Pole Camera here. Although

the camera in Bucci pointed at the front of a house for eight

months, law enforcement officers lacked the capability to

control the camera remotely “without being physically at the

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scene.” 4 582 F.3d at 116. That distinction is too thin to

distinguish Bucci from this case, however, especially in light

of the legal rules that the First Circuit applied. In Bucci,

the First Circuit reasoned that the “legal principle” that “[a]n

individual does not have an expectation of privacy in items or

places he exposes to the public” disposed of the matter. Id. at

116-17 (citing Katz, 389 U.S. at 351). If that principle

remains an accurate depiction of the law, Moore and Moore-Bush

lack an objectively reasonable expectation of privacy in the

activities just outside their home, regardless of the camera’s

unique capabilities.

The Court reads Carpenter, however, to cabin -- if not

repudiate -- that principle. There, the Supreme Court stated

that: “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 (quoting Katz, 389

U.S. at 351–52). What’s more, the Supreme Court recognized that

long-term tracking of a person’s movements “provides an intimate

window into a person’s life, revealing not only his particular

4 It is unclear whether the law enforcement officers in

Bucci could pan or zoom that camera when physically at the
scene. 582 F.3d at 116.

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movements, but through them his ‘familial, political,

professional, religious, and sexual associations.’” Id.

(quoting Jones, 565 U.S. at 415 (Sotomayor, J., concurring));

see also United States v. Garcia-Gonzalez, Crim. A. No. 14-

10296-LTS, 2015 WL 5145537, at *9 (D. Mass. Sept. 1, 2015)

(Sorokin, J.) (observing that Justices Alito and Sotomayor’s

concurrences in Jones “undermine Bucci’s legal [and] analytic

foundations”). Additionally, the Supreme Court distinguished

the tracking involved in Carpenter from historical surveillance

methods on the ground that the tracking produced a log that law

enforcement officers could use to “travel back in time to

retrace a person’s whereabouts” whereas “a dearth of records and

the frailties of recollection” limited surveillance in the past.

138 S. Ct. at 2218.

The Government protests that the Supreme Court

characterized its holding in Carpenter as “narrow” and thus

limited to the technology addressed in that case, cell-site

location information. Gov’t Opp’n 6 (quoting Carpenter, 138 S.

Ct. at 2217, 2219). The Court, however, does not ground its

decision on Carpenter’s holding but instead on its necessary

reasoning; that is, a person does have some objectively

reasonable expectations of privacy when in spaces visible to the

public. See 138 S. Ct. at 2217. The Court cannot reconcile

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that reasoning with Bucci’s blanket statement that no such

expectations exist. See 582 F.3d at 117. 5

The Government also brings to this Court’s attention two

out-of-circuit district courts’ rejections of post-Carpenter

challenges to pole cameras. Gov’t Opp’n 6 (citing United States

v. Kay, No. 17-CR-16, 2018 WL 3995902 (E.D. Wis. Aug. 21, 2018);

United States v. Kubasiak, No. 18-CR-120, 2018 WL 6164346 (E.D.

Wis. Aug. 23, 2018), report and recommendation adopted 2018 WL

4846761 (Oct. 5, 2018)). Nevertheless, in each of those

cases -- and the two others that this Court located -- the

district courts premised their approval of the pole cameras in

large part on the claim that those cameras were “security

cameras.” See Kubasiak, 2018 WL 6164346, at *4 (basing its

reasoning on the Supreme Court’s emphasis in Carpenter that it

did not “call into question conventional surveillance techniques

5 One possible route to reconcile the First Circuit’s

pronouncement in Bucci with the Supreme Court’s reasoning in
Carpenter would be to distinguish between real-time observations
of the front of a house and a video log recording them. See
Carpenter, 138 S. Ct. at 2217; Bucci, 582 F.3d at 116-17. The
First Circuit, however, did not specify whether law enforcement
officers monitored the camera used in Bucci contemporaneously or
reviewed digitized recordings afterwards. See Bucci, 582 F.3d
at 116-17. The Court explains in section IV.B.2 why, at least,
the latter scenario sparks severe Fourth -- and First --
Amendment concerns. The Court therefore reads Carpenter to
overrule Bucci to the extent that Bucci sanctioned constant law
enforcement video logging of activities outside a home for eight
months. See Carpenter, 138 S. Ct. at 2217; Bucci, 582 F.3d at
116-17.

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and tools, such as security cameras” (quoting 138 S. Ct. at

2220)); Kay, 2018 WL 3995902, at *2 (same); United States v.

Tirado, No. 16-CR-168, 2018 WL 3995901, at *2 (E.D. Wis. Aug.

21, 2018) (same); United States v. Tuggle, No. 16-CR-20070-JES-

JEH, 2018 WL 3631881, at *3 (C.D. Ill. July 31, 2018) (same).

This Pole Camera is not a security camera by any stretch of

the imagination. As relevant here, Merriam-Webster defines

security as “something that secures . . . measures taken to

guard against espionage or sabotage, crime, attack, or escape.”

Security, Merriam-Webster, https://www.merriam-webster.com/dicti

onary/security (last accessed May 15, 2019); see also Security,

Black's Law Dictionary (10th ed. 2014) (“The quality, state, or

condition of being secure, esp. from danger or attack.”). Law

enforcement officers did not install the Pole Camera here “to

guard against . . . crime,” but to investigate suspects.

Indeed, the prototypical security camera exists to monitor a

heavily trafficked area or commercial establishment. Security

camera operators often install their cameras in plain view or

with warning signs to deter wrongdoers. See, e.g., Commonwealth

v. Rivera, 445 Mass. 119, 133-34 (2005) (Cowin, J.) (observing,

in a different context, that the defendant should have expected

that a “standard security surveillance camera mounted by the

store owner in plain view” would record him). The Government

hid the Pole Camera out of sight of its targets and does not

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suggest that it did so to prevent criminal activity. Instead,

the Government explained that it used the Pole Camera simply to

track suspects’ travels, which, standing alone, were not crimes.

See Defs.’ Exs. Pretrial Mots., Ex. 2 at 132 (describing the

installation of Pole Camera and explaining that it “proved to be

useful in identifying several vehicles visiting” Moore-Bush,

“confirm[ing] when MOORE-BUSH [was] in the Springfield area,”

and “identifying rental vehicles used by MOORE-BUSH”). 6

Accordingly, though Carpenter does not discuss pole cameras, its

logic contradicts Bucci’s and requires this Court to examine

whether the Government’s use of the Pole Camera constitutes a

search.

2. The Use of the Pole Camera Invaded Moore-Bush and

Moore’s Objectively Reasonable Expectations of
Privacy

In light of the principles that the Supreme Court

elucidated in Carpenter, this Court holds that Moore-Bush and

Moore had an objectively reasonable expectation of privacy in

their and their guests’ activities around the front of the house

for a continuous eight-month period. See 138 S. Ct. at 2213-14,

2217-18.

In Garcia-Gonzalez, Judge Sorokin came close to suppressing

video from a pole camera similar to the one here on the basis of

6 Moore-Bush and Moore manually filed their exhibits, so the

exhibits do not appear on the electronic court filing system.

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Jones but ultimately pulled back. 2015 WL 5145537, at *9.

Jones addressed whether the Government could surreptitiously

attach a location tracking device to a car. 565 U.S. at 402.

Although the opinion of the Court invalidated the tracking under

the common law trespassory test, Justices Alito and Sotomayor

filed concurrences that applied the reasonable expectations

test, which, combined, obtained the support of a majority of the

justices. 565 U.S. at 413-31. Judge Sorokin noted this

apparent Supreme Court majority and observed that extended pole

camera surveillance raised more serious concerns than the

location tracking in Jones:

[T]he two concurrences in Jones, emphasized that

“longer term GPS monitoring in investigations of most
offenses impinges on expectations of privacy.” Justice
Sotomayor remarked that “GPS monitoring generates a
precise, comprehensive record of a person's public
movements that reflects a wealth of detail about her
familial, political, professional, religious, and sexual
associates.” . . . GPS data provides only the “where”
and “how long” of a person's public movements insofar as
the person remains close to the monitored vehicle. Long-
term around-the-clock monitoring of a residence
chronicles and informs the “who, what, when, why, where
from, and how long” of a person's activities and
associations unfolding at the threshold adjoining one's
private and public lives.

Garcia-Gonzalez, 2015 WL 5145537, at *8 (quoting Jones, 565 U.S.

at 414 (Sotomayor, J., concurring)). Nevertheless, Judge

Sorokin viewed himself bound to apply Bucci’s reasoning because

neither Justice Alito nor Justice Sotomayor spoke for the

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Supreme Court in Jones. Garcia-Gonzalez, 2015 WL 5145537, at

*9.

The Supreme Court’s Carpenter decision, however,

incorporates the Jones concurrences. See, e.g., Carpenter, 138

S. Ct. at 2215 (quoting with approval Justices Alito and

Sotomayor’s conclusion that “‘longer term GPS monitoring in

investigations of most offenses impinges on expectations of

privacy’ -- regardless whether those movements were disclosed to

the public at large”); id. at 2217 (quoting Justice Alito’s

concurrence stating that “[p]rior to the digital age, law

enforcement officers 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

2220 (citing Justices Alito and Sotomayor’s Jones concurrences

that a search occurs when the Government subjects a vehicle to

“pervasive tracking” on public roads). As a consequence, this

Court interprets Carpenter to apply the Jones concurrences.

This Court thus applies the principles from Carpenter and the

Jones concurrences to the Pole Camera here.

In the Court’s view, three principles from the Jones

concurrences and Carpenter dictate the resolution of this

motion. First, as Justice Sotomayor points out in Jones,

“[a]wareness that the Government may be watching chills

associational and expressive freedoms. And the Government's

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unrestrained power to assemble data that reveal private aspects

of identity is susceptible to abuse.” 565 U.S. at 416. 7 Second,

as Chief Justice Roberts observes in Carpenter, technologies

that permit law enforcement officers to access and search vast

amounts of passively collected data may “give police access to a

7 The Supreme Court has long instructed magistrates to

consider First Amendment values in analyzing whether a warrant’s
proposed search is reasonable. See Zurcher v. Stanford Daily,
436 U.S. 547, 564 (1978) (in “determining the reasonableness of
a search, state and federal magistrates should be aware that
‘unrestricted power of search and seizure could also be an
instrument for stifling liberty of expression.’” (quoting Marcus
v. Search Warrant, 367 U.S. 717, 729 (1961))). The Fourth
Amendment’s framers recalled the use of general warrants that
the King used to harass and persecute Catholic and Puritan
publishers. Stanford v. Texas, 379 U.S. 476, 482 (1965). A
line of cases establishes that when a magistrate analyzes a
warrant application for expressive material, as opposed to
physical contraband such as “weapons or drugs,” the magistrate
must review the application “with ‘scrupulous exactitude.’” New
York v. P.J. Video, Inc., 475 U.S. 868, 871 (1986) (quoting
Stanford, 379 U.S. at 481–85).
As far as this Court can tell, Jones and Carpenter
represent the first cases in which the Supreme Court instructed
courts to consider First Amendment values in deciding whether a
search occurred at all. See United States v. Sparks, 750 F.
Supp. 2d 384, 387 n.5 (D. Mass. 2010) (pre-Jones, rejecting the
defendant’s arguments that “evidence must be excluded because
the government violated his First Amendment right to free
association”). Indeed, in Katz, Justice Stewart’s opinion for
the Supreme Court -- upon which courts seldom now rely in favor
of Justice Harlan’s concurrence -- takes pains to differentiate
the spheres of protection provided by the First and Fourth
Amendments. 389 U.S. at 350-51 & n.5. The Court views the
addition of First Amendment principles to the Katz reasonable
expectations test as a welcome development in Fourth Amendment
law. See Rachel Levinson-Waldman, Hiding in Plain Sight: A
Fourth Amendment Framework for Analyzing Government Surveillance
in Public, 66 Emory L.J. 527, 552, 557 (2017); Daniel J. Solove,
The First Amendment As Criminal Procedure, 82 N.Y.U. L. Rev.
112, 127–28 (2007).

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category of information otherwise unknowable.” See 138 S. Ct.

at 2218. Third, as Justice Alito reasons in Jones, “relatively

short-term monitoring of a person's movements on public streets

accords with expectations of privacy that our society has

recognized as reasonable. But the use of longer-term GPS

monitoring in investigations of most offenses impinges on

expectations of privacy.” 565 U.S. at 430 (citing United States

v. Knotts, 460 U.S. 276, 281–82 (1983)).

The surveillance here risks chilling core First Amendment

activities. Consider religious dissenters. Surely the public

at the time of the Fourth Amendment’s framing would be familiar

with the dissenting religious groups that objected to the Church

of England’s practices, such as the Methodists, Pilgrims,

Puritans, and Quakers. After Parliament enacted the Act of

Uniformity, which compelled all Englishmen to attend Church of

England services and criminalized “conduct[ing] or attend[ing}

religious gatherings of any other kind,” religious dissenters

continued to hold their worship gatherings in secret. See Engel

v. Vitale, 370 U.S. 421, 432–33 (1962). Many of those

gatherings took place in private homes to avoid prosecution --

often unsuccessfully. See id.; John C. English, John Wesley and

the Rights of Conscience, 37 J. Church & St. 349, 350, 360

(1995) (noting that early Methodist ministers preached in

private houses notwithstanding the risk that magistrates would

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fine them for violating the Conventicle Act); see also Church of

the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,

530-31 (1993) (striking down city ordinance outlawing religious

practice that took place in secret); Congregation Jeshuat Israel

v. Congregation Shearith Israel, 186 F. Supp. 3d 158, 169

(D.R.I. 2016) (recounting that the first Jewish families to

emigrate to the colonies “met to worship at private dwelling

houses”), rev'd, 866 F.3d 53 (1st Cir. 2017) (not disturbing

this finding of fact). It stands to reason that the public at

the time of the amendment’s framing would have understood the

King’s constables to violate their understanding of privacy if

they discovered that constables had managed to collect a

detailed log of when a home’s occupants were inside and when

visitors arrived and whom they were.

What’s more, people use their homes for all sorts of

liaisons. For example, the Government has no business knowing

that someone other than the occupant’s spouse visited the home

late at night when the spouse was away and left early in the

morning. See Lawrence v. Texas, 539 U.S. 558, 574 (2003)

(reconfirming that “our laws and tradition afford constitutional

protection to personal decisions relating to marriage,

procreation, contraception, family relationships, child rearing,

and education” (citing Planned Parenthood of Southeastern Pa. v.

Casey, 505 U.S. 833, 851 (1992)). Nor does the Government have

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any business tracking a homeowners’ hobbies or regular trips for

appointments. Perhaps people would hesitate to have supporters

of opposition political parties visit if they knew that the

Government might be monitoring their driveway. The continuous

video taken by the Pole Camera thus threatens to chill these

religious, political, and associational activities. See U.S.

Const. amend. I; Jones, 565 U.S. at 416 (Sotomayor, J.,

concurring) (“Awareness that the Government may be watching

chills associational and expressive freedoms.”).

Moreover, the video from the Pole Camera was not only

continuous, but also recorded and digitized. Thus, even if the

Government were to show no contemporaneous interest in these

intimate personal details, the Government can go back on a whim

and determine a home occupant’s routines with to-the-second

specificity. See Carpenter, 138 S. Ct. at 2218. This

capability distinguishes this surveillance from human

surveillance. Humans are imperfect note-takers and not all

blessed with photographic memory. See id. The Pole Camera,

however, captured every single second that passed over eight

months in a digitally searchable form. Information that a law

enforcement officer might have ignored at the time as irrelevant

to the investigation or mis-recorded no longer prevents the

Government’s prying eyes from wandering. See id. This power

also sets the Pole Camera apart from neighbors; even -- or

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perhaps especially -- on a residential street, neighbors notice

each other’s peculiar habits. Yet they would not notice all of

their neighbors’ habits, especially those activities occurring

during traditional working hours or in the dark.

While Jones involved a car on a public road, Justice

Alito’s conclusion that society reasonably expects to be free

from long-term surveillance in public applies with equal force

to society’s reasonable expectations about the public space in

front of a person’s home. See 565 U.S. at 430. Indeed, Fourth

Amendment doctrine treats the home with due reverence. “‘At the

very core’ of the Fourth Amendment ‘stands the right of a man to

retreat into his own home and there be free from unreasonable

governmental intrusion.’” Kyllo v. United States, 533 U.S. 27,

31 (2001) (quoting Silverman v. United States, 365 U.S. 505, 511

(1961)). Here, for eight months, the Government monitored every

single time that Moore-Bush and Moore retreated into their home,

thereby impairing their freedom to retreat as they pleased.

While the Government neither trespassed onto Moore’s home’s

curtilage nor peeked inside her home, the Court is sensitive to

the different expectations people reasonably may have about

activities on their driveway and near their front door. Cf.

Jardines, 569 U.S. at 7-9 (applying the common law trespassory

test to a home’s curtilage, limiting the “implicit license”

permitting visitors to approach a home’s front door). Although

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these activities, taken one by one, may not give rise to a

reasonable expectation of privacy, as on the public roads, the

Court aggregates their sum total for its analysis. In Jones, a

majority of justices reasoned that law enforcement officers

conducted a search when they surveilled a car for four weeks.

565 U.S. at 413-14 (Sotomayor, J., concurring). Here, law

enforcement officers surveilled the home for eight months. A

home occupant would not reasonably expect that. While the law

does not “require law enforcement officers to shield their eyes

when passing by a home on public thoroughfares,” Ciraolo, 476

U.S. at 213 (emphasis added), it does forbid the intrusive,

constant surveillance here.

The Government counters that it has long used pole camera

technology to surveil suspects at home. This Pole Camera,

however, is unique in this Court’s experience. As discussed

above, this Pole Camera did not require monitoring in real time

because the Pole Camera created a digitally searchable log. The

Government provides no evidence that pole cameras have long had

this capability. Moreover, the Court observes that in three of

the four post-Carpenter cases and in Bucci the Government could

not magnify images without traveling to the scene. See Kay,

2018 WL 3995902, at *2; Tirado, 2018 WL 3995901, at *2; Tuggle,

2018 WL 3631881, at *3; Bucci, 582 F.3d at 116. Law enforcement

officers could also pan and tilt this camera. The ability to

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take all these action from afar, potentially using a cellphone

or tablet computer, seems to be a new development. Compare

Gov’t Opp’n 3 & n.1 with Moore Mot. 6.

Therefore, the Court holds that the Pole Camera, as used

here, does not constitute a “conventional security technique[.]”

Carpenter, 138 S. Ct. at 2220. Accordingly, Moore-Bush and

Moore meet the second prong of the reasonable expectations test. 8

V. CONCLUSION

In sum, this Court does not rule that the use of a pole

camera necessarily constitutes a search. Instead, the Court

rules narrowly that several aspects of the Government’s use of

this Pole Camera does. Those aspects are the Pole Camera’s (1)

8 While beyond the record here, it is worth noting that

“[p]olice surveillance equipment (including both dashboard
cameras and body cameras) has become both cheaper and more
effective . . . .” United States v. Paxton, 848 F.3d 803, 812
(7th Cir. 2017); see also Farhad Manjoo, San Francisco Is Right:
Facial Recognition Must Be Put On Hold, N.Y. Times (May 16,
2019), https://www.nytimes.com/2019/05/16/opinion/columnists/fac
ial-recognition-ban-privacy.html (noting, among other things,
that cameras “keep getting cheaper and -- in ways both amazing
and alarming -- they are getting smarter”); Jones, 565 U.S. at
415-16 (Sotomayor, J., concurring) (observing that “because GPS
monitoring is cheap in comparison to conventional surveillance
techniques and, by design, proceeds surreptitiously, it evades
the ordinary checks that constrain abusive law enforcement
practices: “limited police resources and community hostility.”
(quoting Illinois v. Lidster, 540 U.S. 419, 426 (2004)).
Although this Court’s decision does not rely on this trend, it
appears beyond serious debate that the costs of pole camera
surveillance have shrunk significantly, thereby tilting any
cost-benefit calculation that the Government might perform in
favor of using that technique.

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continuous video recording for approximately eight months; (2)

focus on the driveway and front of the house; (3) ability to

zoom in so close that it can read license plate numbers; and (4)

creation of a digitally searchable log. Taken together, these

features permit the Government to piece together intimate

details of a suspect’s life. See Carpenter, 138 S. Ct. at 2217

(quoting Jones, 565 U.S. at 415 (Sotomayor, J., concurring)).

Therefore, the Court ALLOWS Moore-Bush and Moore’s motions

to suppress evidence obtained directly from the Pole Camera, ECF

Nos. 326, 358. Although Moore-Bush and Moore say that the Pole

Camera may have led to the discovery of other tainted evidence,

they do not identify that evidence for the Court. The Court

thus takes no action with regard to evidence collected

indirectly from the Pole Camera. 9

SO ORDERED.

/s/ William G. Young

WILLIAM G. YOUNG
DISTRICT JUDGE

9 A preliminary review of the record before this Court

indicates that the independent source exception may preclude
suppression of any other evidence. See United States v. Flores,
888 F.3d 537, 546 (1st Cir. 2018) (providing that a court ought
not suppress evidence when the Government decided to obtain a
warrant “independent” of constitutional violations and if the
warrant, excised of knowledge obtained from those violations,
otherwise establishes probable cause) (citing United States v.
Murray, 487 U.S. 533, 542 (1988); United States v. Dessesaure,
429 F.3d 359, 367 (1st Cir. 2005)).

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