Pole cam surveillance violates 4th Amendment.

Byline: Eric T. Berkman

The government's use of a remote-controlled pole camera to conduct constant surveillance of criminal defendants' forays in and out of their home constituted an unreasonable search under the Fourth Amendment, a U.S. District Court judge has ruled.

The camera was mounted on a utility pole across the street from the defendants' home and could be controlled remotely to zoom in on license plates of guests and to pan and tilt. Government agents used the camera to monitor the driveway and front of the defendants' home over an eight-month period and to create a video log of the surveillance.

The government argued in a suppression hearing that under the 1st U.S. Circuit Court of Appeals' 2009 United States v. Bucci decision, the use of the camera did not constitute a search within the meaning of the Fourth Amendment because the defendants had no reasonable expectation of privacy over actions or items exposed to the public.

But Judge William G. Young disagreed, finding that the U.S. Supreme Court's 2017 decision in U.S. v. Carpenter, which addressed the government's warrantless acquisition of a defendant's cell site location information, extended a criminal defendant's reasonable expectation of privacy to cover a situation such as the one in the present case.

"Here, law enforcement officers surveilled the home for eight months. A home occupant would not reasonably expect that," Young wrote, granting the defendants' separate motions to suppress evidence obtained from the camera.

"While the law does not 'require law enforcement officers to shield their eyes when passing by a home on public thoroughfares,' it does forbid the intrusive, constant surveillance here," Young continued, quoting the Supreme Court's 1986 decision in U.S. v. Ciraolo.

The 20-page decision is United States v. Moore-Bush, et al., Lawyers Weekly No. 02-292-19. The full text of the ruling can be found here.

'Modern age of surveillance'

Defense counsel Linda J. Thompson of Springfield said the decision provides important guidance as to what constitutes a reasonable expectation of privacy in this "modern age of surveillance."

"Reasonable expectation of privacy is where, I think, Fourth Amendment litigation is going to go," Thompson said. "I'd really hate to have somebody videotaping everything that happened in my driveway and front yard for eight months. That's the essence of a privacy invasion, and I think most people don't expect the government to be able to...