Massachusetts Supreme Judicial Court Announces Bodycam Video Subsequently Reviewed in Unrelated Investigation Constitutes Unconstitutional Warrantless Search
by Anthony W. Accurso
In a case of first impression on two issues, the Supreme Judicial Court of Massachusetts (“SJC”) held that (1) an officer wearing a bodycam inside a suspect’s home during a domestic disturbance call was not a search under the Fourth Amendment and Article 14 and (2) a subsequent warrantless review of the footage in connection with an unrelated investigation to the disturbance call was an unconstitutional warrantless search.
On February 10, 2017, Boston Police Department (“BPD”) officers responded to a domestic disturbance call at the home of Abdirahaman Yusuf. His sister had called police about an argument between Yusuf and his girlfriend; his sister allowed officers to enter their shared residence. One of the officers was wearing a bodycam.
After officers secured the occupants of the home and discovered no assault had occurred, they allowed Yusuf and his girlfriend to leave without incident, and the officers left as well.
However, the bodycam footage was stored, and a copy was made on a DVD, which was given to a member of the BPD’s youth violence strike force (the gang unit). The detective had been investigating Yusuf for six months, looking for evidence to justify a search of his home.
Two weeks after the domestic violence call, the gang unit detective noticed a video on Yusuf’s social media, showing him—despite being a convicted felon—holding a firearm in a room with distinct “floral-printed curtains visible in the background.” A review of the bodycam footage from the domestic disturbance call showed that Yusuf’s bedroom had the same distinctive curtains, prompting the detective to conclude that the video of Yusuf in possession of the firearm was filmed in his bedroom.
Based on the bodycam footage, the detective applied for a search warrant for Yusuf’s home, and upon execution of the warrant, officers recovered a firearm and ammunition. He was charged with unlawfully possessing the firearm and ammo. Yusuf filed a motion to suppress the evidence, arguing that the warrantless use of the body cam as well as the warrantless search of the saved footage for an investigative purpose unrelated to the incident giving rise to its creation constituted warrantless searches in violation of the Fourth Amendment or Article 14 of the Massachusetts Declaration of Rights. His motion was denied, and a jury found him guilty of unlawful possession of a firearm and ammo. He appealed, and the SJC granted his petition for direct review.
The Court first reviewed whether the officer’s use of a bodycam during the domestic disturbance incident constituted an unreasonable search.
The Court observed that courts have long recognized a person’s home as an area where constitutional rights must be jealously guarded because it’s an area “held safe from prying government eyes.” Kyllo v. United States, 533 U.S. 27 (2001). The U.S. Supreme Court has characterized a person’s home with respect to constitutional protections as “first among equals.” Florida v. Jardines, 569 U.S. 1 (2013). “In its most traditional form, a search occurs when ‘the [g]overnment obtains information by physically intruding on a constitutionally protected area.’” Commonwealth v. Johnson, 119 N.E.3d 669 (Mass. 2019), quoting Grady v. North Carolina, 575 U.S. 306 (2015). In addition to being constitutionally protected against physical government instruction, the Court explained that the home is also an area protected by a constitutionally recognized reasonable expectation of privacy. See Katz v. United States, 389 U.S. 347 (1967); Commonwealth v. McCarthy, 142 N.E.3d 1090 (Mass. 2020).
Under both Article 14 of the Massachusetts Declaration of Rights and the Fourth Amendment to the U.S. Constitution, searches of a home must be justified by a warrant unless one of a few, well-defined exceptions is established. When Yusuf’s sister called the police and allowed them into the home, they were lawfully inside the home for the summoned purpose, the Court explained. “Family members who live in a home together may validly consent to a search of that home.” Commonwealth v. Ortiz, 422 Mass. 64 (1996).
Anything that an officer could have noticed “in plain sight” while in a location he has a lawful right to be, that may have been evidence of a separate crime, could be seized without an additional warrant. Arizona v. Hicks, 480 U.S. 321 (1987) (merely inspecting parts of a turntable in plain view without disturbing it in any way was not independent search because it produced no additional invasion of privacy and came into view during a lawful search, but turning over equipment to look for serial number was additional invasion of privacy).
This plain-view doctrine has been extended to image-recording devices. Where police were “legally on the premises [pursuant to a warrant], it was permissible for them to take ... photographs” of areas of the home where blood was found. Commonwealth v. Freiberg, 540 N.E.2d 1289 (Mass. 1989). This also applies to videos. See United States v. McCourt, 468 F.3d 1088 (8th Cir. 2006) (videos are just a series of pictures which appear rapidly to create the appearance of motion).
Therefore, the Court “conclude[d] that, were, as here, the officer was lawfully present in the home and the body-worn camera captured only the areas and items in the plain view of the officer as he or she traversed the home, in a manner consistent with the reasons for the officer’s lawful presence, the recording is not a search in the constitutional sense and does not violate the Fourth Amendment or art. 14.”
After concluding that the officer’s use of the bodycam inside Yusuf’s home was not a search for constitutional purposes, the Court turned to the issue of whether a search occurred when the video footage was subsequently reviewed in connection with an unrelated, investigatory purpose. The Court agreed with Yusuf that the subsequent review of the video footage “constituted a search because it invaded his reasonable expectation of privacy.” See Katz.
The Court declared that the subsequent review can’t “be justified as a limited extension of the officer’s plain view observations.” It explained: “The home is not a place to which the public has access, or where an individual might expect a recording made during a lawful police visit would be preserved indefinitely, accessed without restriction, and reviewed at will for reasons unrelated to the purposes of the police visit.”
The Court acknowledged that bodycams have many possible benefits, including “deterring police misconduct, including illegal searches; increasing public trust in law enforcement; and facilitating prosecution for privacy-infringing crimes.” Thomas, The Privacy Case for Body Cameras, 50 Colum. J.L. & Soc. Probs. 192 (2017).
Yet, the Court must balance perceived benefits against the potential for abuse that could run afoul of constitutional protections. “Both this court [SJC] and the United States Supreme Court have been careful to guard against the power of technology to shrink the realm of guaranteed privacy by emphasizing that privacy rights cannot be left at the mercy of advancing technology but rather must be preserved and protected as new technologies are adapted and applied by law enforcement.” Commonwealth v. Almonor, 120 N.E.3d 1183 (Mass. 2019).
The bodycam footage could, in theory, be available to police at any point after it was recorded. The Court stated that the “ability of police officers, at any later point, to trawl through video footage to look for evidence of crimes unrelated to the officers’ lawful presence in the home when they were responding to a call for assistance is the virtual equivalent of a general warrant,” which British officers used during colonial times to rummage through homes at any time in search of evidence of criminal activity and which the Fourth Amendment was designed to prohibit. See Carpenter v. United States, 138 S. Ct. 2206 (2018) (the Fourth Amendment was adopted to prevent “general warrants” and “writs of assistance”).
Further, the Court stated that the subsequent review of the bodycam footage was unrelated to any “rationale justifying the recording in the first instance” and “had the effect of allowing the gang unit detective to peer into the defendant’s home for evidence to support an unrelated criminal investigation.” See Commonwealth v. Buccella, 751 N.E.2d 373 (Mass. 2001) (“It would appear reasonable to expect that a government agency, to which a citizen is required to submit certain materials, will use those materials solely for the purposes intended and not disclose them to others in ways that are unconnected with those intended purposes.”).
For the foregoing reasons, the Court declined to extend the plain view doctrine to the subsequent, unrelated review of bodycam footage. The subsequent review constitutes a search under the Fourth Amendment and Article 14 and is therefore presumptively unreasonable without a warrant, according to the Court. Thus, the Court ruled that order denying the suppression motion must be vacated.
Accordingly, the Court remanded the case to the Superior Court for an evidentiary hearing to determine whether the Commonwealth can prove the warrant to search Yusuf’s home is justifiable absent the information obtained from review of the bodycam footage. See Commonwealth v. Yusuf, 173 N.E.3d 378 (Mass. 2021).
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Commonwealth v. Yusuf
| Year | 2021 |
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| Cite | 173 N.E.3d 378 (Mass. 2021) |
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| Cite | 389 U.S. 347 (U.S. Supreme Court 1967) |
389 U.S. 347; 88 S. Ct. 507; 19 L. Ed. 2d 576
CHARLES KATZ v. UNITED STATES
No. 35
October 17, 1967, Argued
December 18, 1967, Decided
PRIOR HISTORY:
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
DISPOSITION: 369 F.2d 130, reversed.
SYLLABUS:
Petitioner was convicted under an indictment charging him with transmitting wagering information by telephone across state lines in violation of 18 U. S. C. § 1084. Evidence of petitioner's end of the conversations, overheard by FBI agents who had attached an electronic listening and recording device to the outside of the telephone booth from which the calls were made, was introduced at the trial. The Court of Appeals affirmed the conviction, finding that there was no Fourth Amendment violation since there was "no physical entrance into the area occupied by" petitioner. Held:
1. The Government's eavesdropping activities violated the privacy upon which petitioner justifiably relied while using the telephone booth and thus constituted a "search and seizure" within the meaning of the Fourth Amendment. Pp. 350-353.
(a) The Fourth Amendment governs not only the seizure of tangible items but extends as well to the recording of oral statements. Silverman v. United States, 365 U.S. 505, 511. P. 353.
(b) Because the Fourth Amendment protects people rather than places, its reach cannot turn on the presence or absence of a physical intrusion into any given enclosure. The "trespass" doctrine of Olmstead v. United States, 277 U.S. 438, and Goldman v. United States, 316 U.S. 129, is no longer controlling. Pp. 351, 353.
2. Although the surveillance in this case may have been so narrowly circumscribed that it could constitutionally have been authorized in advance, it was not in fact conducted pursuant to the warrant procedure which is a constitutional precondition of such electronic surveillance. Pp. 354-359.
COUNSEL: Burton Marks and Harvey A. Schneider argued the cause and filed briefs for petitioner.
John S. Martin, Jr., argued the cause for the United States. With him on the brief were Acting Solicitor General Spritzer, Assistant Attorney General Vinson and Beatrice Rosenberg.
JUDGES: Warren, Black, Douglas, Harlan, Brennan, Stewart, White, Fortas; Marshall took no part in the consideration or decision of the case.
OPINION:
[*348] [***580] [**509] MR. JUSTICE STEWART delivered the opinion of the Court.
The petitioner was convicted in the District Court for the Southern District of California under an eight-count indictment charging him with transmitting wagering information by telephone from Los Angeles to Miami and Boston, in violation of a federal statute. n1 At trial the Government was permitted, over the petitioner's objection, to introduce evidence of the petitioner's end of telephone conversations, overheard by FBI agents who had attached an electronic listening and recording device to the outside of the public telephone booth from which he had placed his calls. In affirming his conviction, the Court of Appeals rejected the contention that the recordings had been obtained in violation of the Fourth Amendment, [*349] because "there was no physical entrance into the area occupied by [the petitioner]." n2 [**510] We granted certiorari in order to consider the constitutional questions thus presented. n3
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n1 18 U. S. C. § 1084. That statute provides in pertinent part:
"(a) Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest, or for the transmission of a wire communication which entitles the recipient to receive money or credit as a result of bets or wagers, or for information assisting in the placing of bets or wagers, shall be fined not more than $ 10,000 or imprisoned not more than two years, or both.
"(b) Nothing in this section shall be construed to prevent the transmission in interstate or foreign commerce of information for use in news reporting of sporting events or contests, or for the transmission of information assisting in the placing of bets or wagers on a sporting event or contest from a State where betting on that sporting event or contest is legal into a State in which such betting is legal."
n2 369 F.2d 130, 134.
n3 386 U.S. 954. The petition for certiorari also challenged the validity of a warrant authorizing the search of the petitioner's premises. In light of our disposition of this case, we do not reach that issue. We find no merit in the petitioner's further suggestion that his indictment must be dismissed. After his conviction was affirmed by the Court of Appeals, he testified before a federal grand jury concerning the charges involved here. Because he was compelled to testify pursuant to a grant of immunity, 48 Stat. 1096, as amended, 47 U. S. C. § 409 (l), it is clear that the fruit of his testimony cannot be used against him in any future trial. But the petitioner asks for more. He contends that his conviction must be vacated and the charges against him dismissed lest he be "subjected to [a] penalty . . . on account of [a] . . . matter . . . concerning which he [was] compelled . . . to testify . . . ." 47 U. S. C. § 409 (l). Frank v. United States, 347 F.2d 486. We disagree. In relevant part, § 409 (l) substantially repeats the language of the Compulsory Testimony Act of 1893, 27 Stat. 443, 49 U. S. C. § 46, which was Congress' response to this Court's statement that an immunity statute can supplant the Fifth Amendment privilege against self-incrimination only if it affords adequate protection from future prosecution or conviction. Counselman v. Hitchcock, 142 U.S. 547, 585-586. The statutory provision here involved was designed to provide such protection, see Brown v. United States, 359 U.S. 41, 45-46, not to confer immunity from punishment pursuant to a prior prosecution and adjudication of guilt. Cf. Reina v. United States, 364 U.S. 507, 513-514.
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The [***581] petitioner has phrased those questions as follows:
"A. Whether a public telephone booth is a constitutionally protected area so that evidence obtained by attaching an electronic listening recording device to the top of such a booth is obtained in violation of the right to privacy of the user of the booth.
[*350] "B. Whether physical penetration of a constitutionally protected area is necessary before a search and seizure can be said to be violative of the Fourth Amendment to the United States Constitution."
We decline to adopt this formulation of the issues. In the first place, the correct solution of Fourth Amendment problems is not necessarily promoted by incantation of the phrase "constitutionally protected area." Secondly, the Fourth Amendment cannot be translated into a general constitutional "right to privacy." That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. n4 Other provisions of the Constitution protect personal privacy from other forms of governmental invasion. n5 But the protection of a [**511] person's general right to privacy -- his right to be let alone by other people n6 -- is, like the [*351] protection of his property and of his very life, left largely to the law of the individual States. n7
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n4 "The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. . . . And a person can be just as much, if not more, irritated, annoyed and injured by an unceremonious public arrest by a policeman as he is by a seizure in the privacy of his office or home." Griswold v. Connecticut, 381 U.S. 479, 509 (dissenting opinion of MR. JUSTICE BLACK).
n5 The First Amendment, for example, imposes limitations upon governmental abridgment of "freedom to associate and privacy in one's associations." NAACP v. Alabama, 357 U.S. 449, 462. The Third Amendment's prohibition against the unconsented peacetime quartering of soldiers protects another aspect of privacy from governmental intrusion. To some extent, the Fifth Amendment too "reflects the Constitution's concern for . . . '. . . the right of each individual "to a private enclave where he may lead a private life."'" Tehan v. Shott, 382 U.S. 406, 416. Virtually every governmental action interferes with personal privacy to some degree. The question in each case is whether that interference violates a command of the United States Constitution.
n6 See Warren & Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).
n7 See, e. g., Time, Inc. v. Hill, 385 U.S. 374. Cf. Breard v. Alexandria, 341 U.S. 622; Kovacs v. Cooper, 336 U.S. 77.
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Because of the misleading way the issues have been formulated, the parties have attached great significance to the characterization of the telephone booth from [***582] which the petitioner placed his calls. The petitioner has strenuously argued that the booth was a "constitutionally protected area." The Government has maintained with equal vigor that it was not. n8 But this effort to decide whether or not a given "area," viewed in the abstract, is "constitutionally protected" deflects attention from the problem presented by this case. n9 For HN1the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210; United States v. Lee, 274 U.S. 559, 563. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. [*352] See Rios v. United States, 364 U.S. 253; Ex parte Jackson, 96 U.S. 727, 733.
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n8 In support of their respective claims, the parties have compiled competing lists of "protected areas" for our consideration. It appears to be common ground that a private home is such an area, Weeks v. United States, 232 U.S. 383, but that an open field is not. Hester v. United States, 265 U.S. 57. Defending the inclusion of a telephone booth in his list the petitioner cites United States v. Stone, 232 F.Supp. 396, and United States v. Madison, 32 L. W. 2243 (D. C. Ct. Gen. Sess.). Urging that the telephone booth should be excluded, the Government finds support in United States v. Borgese, 235 F.Supp. 286.
n9 It is true that this Court has occasionally described its conclusions in terms of "constitutionally protected areas," see, e. g., Silverman v. United States, 365 U.S. 505, 510, 512; Lopez v. United States, 373 U.S. 427, 438-439; Berger v. New York, 388 U.S. 41, 57, 59, but we have never suggested that this concept can serve as a talismanic solution to every Fourth Amendment problem.
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The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed partly of glass, so that he was as visible after he entered it as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye -- it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. HN2No less than an individual in a business office, n10 in a friend's apartment, n11 or in a taxicab, n12 a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits [**512] him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.
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n10 Silverthorne Lumber Co. v. United States, 251 U.S. 385.
n11 Jones v. United States, 362 U.S. 257.
n12 Rios v. United States, 364 U.S. 253.
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The Government contends, however, that the activities of its agents in this case should not be tested by Fourth Amendment requirements, for the surveillance technique they employed involved no physical penetration of the telephone booth from which the petitioner placed his calls. It is true that the absence of such penetration was at one time thought to foreclose [***583] further Fourth Amendment inquiry, Olmstead v. United States, 277 U.S. 438, 457, 464, 466; Goldman v. United States, 316 U.S. 129, 134-136, for that Amendment was thought to limit only searches and seizures of tangible [*353] property. n13 But HN3"the premise that property interests control the right of the Government to search and seize has been discredited." Warden v. Hayden, 387 U.S. 294, 304. Thus, although a closely divided Court supposed in Olmstead that surveillance without any trespass and without the seizure of any material object fell outside the ambit of the Constitution, we have since departed from the narrow view on which that decision rested. Indeed, we have expressly held that HN4the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements, overheard without any "technical trespass under . . . local property law." Silverman v. United States, 365 U.S. 505, 511. Once this much is acknowledged, and once it is recognized that the Fourth Amendment protects people -- and not simply "areas" -- against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.
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n13 See Olmstead v. United States, 277 U.S. 438, 464-466. We do not deal in this case with the law of detention or arrest under the Fourth Amendment.
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We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the "trespass" doctrine there enunciated can no longer be regarded as controlling. The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a "search and seizure" within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance.
[*354] The question remaining for decision, then, is whether the search and seizure conducted in this case complied with constitutional standards. In that regard, the Government's position is that its agents acted in an entirely defensible manner: They did not begin their electronic surveillance until investigation of the petitioner's activities had established a strong probability that he was using the telephone in question to transmit gambling information to persons in other States, in violation of federal law. Moreover, the surveillance was limited, both in scope and in duration, to the specific purpose of establishing the contents of the petitioner's unlawful telephonic communications. The agents confined their surveillance to the brief periods during which he used the telephone booth, n14 and [**513] they took [***584] great care to overhear only the conversations of the petitioner himself. n15
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n14 Based upon their previous vi
