by Douglas Ankney

The Supreme Judicial Court (“SJC”) of Massachusetts announced that continuous, long-term pole camera surveillance targeting a residence is a search under article 14 of the Massachusetts Declaration of Rights.

Shortly after an undercover officer made a controlled drug purchase from Nelson Mora, investigators installed pole cameras (a video camera attached to a utility pole) in front of the houses of Mora and Randy Suarez. The cameras captured a portion of the front of each house and doorway, the sidewalk next to it, and the adjacent street.

The cameras recorded uninterruptedly, 24 hours per day, seven days per week. The cameras made video recordings but not audio. None had “night vision” capabilities nor could they view inside the residences. Investigators could remotely zoom in and angle the cameras in real time, permitting the officers to read the license plates on vehicles. The cameras recorded the comings and goings of all persons at the targeted residences. While the cameras were in operation, investigators could view the live footage with a web-based browser. The footage also was saved in a searchable format, permitting investigators to review particular previously-recorded events. The camera near Mora’s home captured 169 days of footage, and the one near Suarez’s home captured footage for 62 days.

While the camera surveillance was ongoing, investigators secured warrants for wiretaps of the defendants’ cellphones and GPS monitoring. Then on the date of their arrests, police secured warrants to search the homes of Mora, Suarez, and Lymbel Guerrero, where police found substantial quantities of heroin, cocaine, and other illicit drugs, along with $425,000 in U.S. currency. Mora, Suarez, and Guerrero later moved to suppress the pole camera footage and all other evidence derived therefrom, arguing the camera surveillance was a warrantless search in violation of the Fourth Amendment to the U.S. Constitution and of Article 14 of the Massachusetts Declaration of Rights (“Article 14”).

At the suppression hearing, the judge denied the motions after he determined that the pole camera surveillance was not a search under either the Fourth Amendment or under Article 14. The defendants were granted an interlocutory appeal of the denial.

The SJC observed “[u]nder both the Federal and Massachusetts Constitutions, a search in the constitutional sense occurs when the government’s conduct intrudes on a person’s reasonable expectation of privacy.” Commonwealth v. Augustine, 4 N.E.3d 846 (Mass. 2014). Based on the reasoning of California v. Ciraolo, 476 U.S. 207 (1986), most courts have determined that pole camera surveillance is not a search because it falls under the “public view” principle that an individual doesn’t have an expectation of privacy in items or places he exposes to the public. (See opinion for numerous citations from various jurisdictions supporting this view.)

However, in United States v. Jones, 565 U.S. 400 (2012), and Carpenter v. United States, 138 S. Ct. 2018, the U.S. Supreme Court discussed how extended GPS vehicle tracking and cell-site location information surveillance of a suspect’s public movements can intrude on reasonable expectations of privacy. Some courts have since held that pole camera surveillance over a period of two months or longer is a search. (See opinion for case citations and holdings.)

Because the question of extended pole camera surveillance has not been addressed by the U.S. Supreme Court, the SJC decided the issue based solely on Article 14. Commonwealth v. Almonor, 120 N.E.3d 1183 (Mass. 2019). Article 14 requires the defendants to show that (1) they have an expectation of privacy in the object of the search and (2) society is prepared to recognize that expectation as reasonable. Augustine. Guerrero failed to make any showing of an expectation of privacy in the areas where he was surveilled. But Mora and Suarez made the showing by stating in their affidavits that they did not expect to be surveilled coming and going from their own homes over an extended period.

As to whether this expectation of privacy is one that society is prepared to recognize as reasonable, in Commonwealth v. Rousseau, 990 N.E.2d 543 (Mass. 2013) the court recognized for the first time that “under art. 14, a person may reasonably expect not to be subjected to extended GPS electronic surveillance by the government, targeted at his movements, without judicial oversight and a showing of probable cause.” A detailed account of a person’s movements, drawn from electronic surveillance, encroaches upon a person’s reasonable expectation of privacy because it reveals a larger picture and provides more information not revealed by traditional short-term surveillance. Commonwealth v. McCarthy, 142 N.E.3d 1090 (Mass. 2020).

Cameras placed near a home or place of worship reveal much more about a person’s private life and associations. Id. Of all protected locations, the home is first among equals. Florida v. Jardines, 569 U.S. 1 (2013). By surveilling the home and the comings and goings of all who enter over an extended period, the government can learn the identity of a person’s business associates, fellow members of civic clubs, paramours, religious adherents, etc. And electronic surveillance permits the storage, retrieval, and review of this information at the will of the investigators. This is a governmental intrusion on the person’s right to be secure in his home, in his associations, and even in his thoughts and beliefs. Commonwealth v. Blood, 507 N.E.2d 1029 (Mass. 1987). “[I]t is not just the right to a silent, solitary autonomy which is threatened by electronic surveillance: It is the right to bring thoughts and emotions forth from the self in company with others doing likewise, the right to be known to others and to know them, and thus to be whole as a free member of a free society.” Jones.

The SJC explained, “[w]ithout the need to obtain a warrant, investigators could use pole cameras to target any home, at any time, for any reason. In such a society, the traditional security of the home would be of little worth, and the associational and expressive freedoms it protects would be in peril.” Because the targeted surveillance and extensive data it generated, in the aggregate, exposed otherwise unknowable details of the defendants’ lives, the Court announced the use of the pole cameras for an extended period constitutes a search under Article 14.

However, in announcing this new rule, the Court also recognized that for at least three decades police departments across the U.S. have used pole cameras without needing to secure a warrant. United States v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir. 1987). The Court, relying on Augustine, reasoned that imposition of the exclusionary rule wasn’t warranted until after the Commonwealth was provided an opportunity to demonstrate whether the “warrantless government-compelled production of data ... was supported by probable cause.” If, at the time of installing the pole cameras, the Commonwealth had probable cause to believe the pole cameras would obtain evidence of a particularly described offense, then the motion to suppress would be denied. But if the Commonwealth lacked such probable cause, the motion would be granted.

Accordingly, the SJC remanded to the superior court with instructions to conduct further proceedings consistent with the Court’s opinion. See: Commonwealth v. Mora, 150 N.E.3d 297 (Mass. 2020).

Writer’s Note: The Court’s reasoning follows a trend among courts concluding that where electronic surveillance permits the government to draw a composite picture of the details of a person’s private life, it is a search even if the surveillance is of public areas. See Jones and Carpenter for further insight and understanding of this principle. 

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