Timothy J. Pastore, Esq., is a Partner in the New York office of Saul Ewing Arnstein & Lehr LLP (www.saul.com), where he is the Chair of the Security Systems Practice Group. Before entering private practice, Mr. Pastore was an officer and Judge Advocate General (JAG) in the U.S. Air Force and a Special Assistant U.S. Attorney with the U.S. Department of Justice. Reach him at (212) 980-7204 or by e-mail at email@example.com.
Are you a homeowner? Do you value your privacy?
Do me a favor stand inside your front door. Do you expect that your conduct is private in your home? Now, step immediately outside your front door, just a few feet from where you stood inside. How about now?
You may be surprised to learn that the law may treat these two spots very differently.
It could be that you have a reasonable expectation of privacy inside your home, but no such reasonable expectation immediately outside your home. This appears to be the ruling of the United States Court of Appeals for the First Circuit (an intermediate federal appeals court) in a case known as United States v. Moore-Bush, 2020 WL 3249060 (1st Cir. 2020).
In this recently decided case, the court considered whether the governments warrantless use of a pole camera to continuously record the front of the defendants home infringed on the defendants reasonable expectation of privacy in and around their home and, thereby, violated the Fourth Amendment of the U.S. Constitution. The appellate court reversed the trial court and determined that the warrantless use of the camera was permissible and not a violation of the defendants fourth amendment rights.
As a former prosecutor, I agree with the decision, and I am glad that the drug and gun dealing defendants were caught and are subject to punishment; however, the decision is nevertheless thought-provoking and controversial.
The principal defendant an attorney and magistrate operated a side business dealing in illegal drugs and guns. Not a good idea.
She and her boyfriend lived with her mother in a quiet residential neighborhood. After a confidential informant bought four guns illegally at the residence, officers installed a pole camera across the street that viewed one side of the house.
The pole camera took continuous video recording for approximately eight months; focused on the driveway and the front of the house; had the ability to zoom in so close that it can read license plate numbers; and created a digitally searchable log.
The police also conducted physical surveillance of the residence seeing what anyone on the street could see.
Based, in part, on evidence gathered by the pole camera, the police obtained a series of other search warrants related to the investigation. Eventually, the principal defendant, her boyfriend and the principal defendants mother were charged with drug trafficking.
In advance of the presentation of evidence, the trial court ruled that the use of the pole camera for an extended period, coupled with the ability to zoom and to search the recordings, constituted an illegal search under the Fourth Amendment, leading to suppression of critical evidence in the case.
The government appealed the ruling of the trial court that the use of the pole camera violated the defendants rights. The appellate court reversed holding that the pole camera revealed nothing more than could be lawfully viewed by officers on the street; and therefore, no warrant was required, and the evidence gathered by the camera and other warrant-based evidence gathered subsequently was admissible and could be used against the defendants in their criminal trial.
Among other things, the appellate court held that what one knowingly exposes to public view does not invoke reasonable expectations of privacy protected by the Fourth Amendment.
The majority opinion in the Moore-Bush case was accompanied by what is known as a concurring opinion where one or more appellate judges agree with the conclusions of the majority of the court, but for different reasons. In this case, one of the appellate judges separately wrote a concurring opinion that began by acknowledging the logic of defendants arguments. In particular, the judge analogized the case to sign stealing in baseball, where it is acceptable that a base runner might steal a sign from the other team, but using a hidden camera to continuously record all signs throughout a game is not.
The concurring opinion also raised a concern that, given the pace of innovation, law enforcement will have license to conduct a degree of unchecked criminal investigatory surveillance that the Fourth Amendment could not possibly have been intended to allow. Nevertheless, the concurrence did not disagree with the result.
What is interesting is that the police officers investigating the defendants could have sought a warrant from a court at any time for the use of the camera essentially mooting the issues ultimately raised in the appeal. For whatever reason, they did not. Maybe they did not want to risk being denied a warrant, maybe they were worried about bias because one of the defendants was a magistrate judge, maybe they deemed it totally unnecessary because, in their view, it did not rise to the level of an unreasonable search and seizure otherwise prohibited by the Fourth Amendment.
We may never learn the motivation of these investigating officers, but, at a minimum, we can thank them for getting guns and drugs off the street. The issue, of course, is whether they violated the Constitution in the process. I believe not and the United States Court of Appeals for the First Circuit agrees.
How about you? Do you agree? I suggest you think about it maybe out on your front porch and be sure to smile for the camera.
Timothy J. Pastore, Esq., is a Partner in the New York office of Saul Ewing Arnstein & Lehr LLP (www.saul.com), where he is the Chair of the Security Systems Practice Group. Before entering private practice, Mr. Pastore was an officer and Judge Advocate General (JAG) in the U.S. Air Force and a Special Assistant U.S. Attorney with the U.S. Department of Justice. Reach him at (212) 980-7204 or by e-mail firstname.lastname@example.org.
Originally posted here:
- Govt That Spies Has Insatiable Appetite - KMJ Now - February 4th, 2021
- No-knock search warrants began in Wisconsin, Rep. Myers wants to end them here - Wisconsin Examiner - February 4th, 2021
- Close the Gaps - East Bay Express - February 4th, 2021
- Is Americas Approach to Cannabis Racist? Study Shows Its Worse Than You Think - GreenState - February 4th, 2021
- Federal appeals court allows reporters to sue SWAT officer who tear-gassed them during Ferguson protests - JURIST - February 4th, 2021
- Invoking Scalia, Sotomayor Presses for Broad Fourth Amendment Protections - Reason - October 30th, 2020
- EFF Files Amicus Brief Arguing That Law Enforcement Access to Wi-Fi Derived Location Data Violates the Fourth Amendment - EFF - October 30th, 2020
- Main Points Of The Fourth Amendment To Chinese Patent Law (Approved On October 17, 2020, Effective From June 1, 2021) - Intellectual Property - China... - October 30th, 2020
- Column: Michigan can bring privacy into the 21st century - The Oakland Press - October 30th, 2020
- IMPD dismissed from Dreasjon Reed lawsuit - WTHR - October 30th, 2020
- The Criminal Justice of Amy Coney Barrett - Washington Monthly - October 30th, 2020
- A guide to the statewide constitutional amendments on the ballot in November 2020 - Yellowhammer News - October 30th, 2020
- RUTHS HOSPITALITY GROUP, INC. : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an... - October 30th, 2020
- Assembly Committee Clears Verrelli & Benson Bill Protecting Employees from Employer Tracking Device Violations - InsiderNJ - October 30th, 2020
- The tyranny of the experts - Leader & Times - October 30th, 2020
- Mike R. Galli is recognized by Continental Who's Who - PRNewswire - October 30th, 2020
- Mail Voting Litigation in 2020, Part II: Submission of Mail-In Ballots - Lawfare - October 30th, 2020
- In its 4th revision to the SEC, Palantir tries to explain what the hell is going on - TechCrunch - September 20th, 2020
- City of Pierre among South Dakota towns ordered to pay a total of $440000 because of forced catheterizations - Drgnews - September 20th, 2020
- Former Torrington officer seeks to have evidence suppressed before trial - Scottsbluff Star Herald - September 20th, 2020
- Council To Have One-Day Session To Learn About Police - The Rhino TImes - September 20th, 2020
- Things to Know Before Your Neighborhood Installs an Automated License Plate Reader - EFF - September 20th, 2020
- Attorney argues Haynes and his brother bribed witness to recant his testimony in 1999 murder case - Kankakee Daily Journal - September 20th, 2020
- Justice Ruth Bader Ginsburgs Lasting Impact on U.S. Traffic Laws - The Art of Gears - September 20th, 2020
- Editorial, August 10, 2020: Your cellphone might be "Big Brother" - Richmond.com - August 10th, 2020
- Common Ways to Fight Against a Drug Possession Charge - Student Assembly of the State University of New York - August 10th, 2020
- Trump Judge Casts Deciding Vote to Grant Qualified Immunity on First Amendment Retaliation Claim: Confirmed Judges, Confirmed Fears - People For the... - August 10th, 2020
- Did Judge Reeves Reach the Correct Result in Jamison v. McClendon? - Reason - August 10th, 2020
- The Police Lie. All the Time. Can Anything Stop Them? - Slate - August 10th, 2020
- The Court of Justice of the European Union in Schrems II: The impact of GDPR on data flows and national security - Brookings Institution - August 10th, 2020
- Calls for police reform and racial justice spur a flurry of resolutions before the ABA House - ABA Journal - August 10th, 2020
- Reporters Committee amicus brief in Alasaad v. Wolf - Reporters Committee for Freedom of the Press - August 8th, 2020
- Meet the Judge Who Thinks a Black Man Walking Around Is a Crime - Rewire.News - August 8th, 2020
- Who will police Springfields cops? - The Boston Globe - August 8th, 2020
- 'Defund the police' is not a real reform strategy - The Maine Wire - August 8th, 2020
- Assessing Indias obsession with data localisation - Deccan Herald - August 8th, 2020
- How 9/11 and the US Civil War provided the framework for federal agents in Portland - News@Northeastern - August 7th, 2020
- Senators Graham And Blumenthal Can't Even 'Earn' The EARN IT Act: Looking To Sneak Vote Through Without Debate - Techdirt - August 6th, 2020
- The Constitutional Case Against Trumps Use of the Department of Homeland Security - The New Yorker - August 6th, 2020
- 'Trump's Troops Are Breaking the Law and Creating Chaos' - FAIR - August 6th, 2020
- Portland demonstrates that government spying on citizens has become commonplace, and easy - Washington Times - August 6th, 2020
- Plainclothes NYC police grab protester and throw her into unmarked car - WSWS - August 6th, 2020
- Majority of Kingston aldermen view Kingstonian project tax pact favorably, with conditions - The Daily Freeman - August 4th, 2020
- Officers on the street without ID or insignia is dangerous - News-Press Now - August 4th, 2020
- "It's the decent thing to do" - News - Fowler Tribune - August 4th, 2020
- What would the Founding Fathers do? - Smoky Mountain News - August 4th, 2020
- How the president became the deporter in chief. - Slate - August 3rd, 2020
- Want To Reform The Police? Get Rid Of Qualified Immunity - WBUR - August 3rd, 2020
- Who is Zane James, why were his brother and father detained by police in Cottonwood Heights protest? - MEAWW - August 3rd, 2020
- Unpacking DHS's Troubling Explanation of the Portland Van Video - Lawfare - August 1st, 2020
- Capitol Hill grilling of tech CEOs highlights expansion of 'geofence warrants' - WRAL.com - August 1st, 2020
- R Sikoryaks latest project is a word-for-word adaptation of the U.S. Constitution - Boing Boing - August 1st, 2020
- FBI bulletin exposes another crack in ELD mandate - Land Line - Land Line Media - August 1st, 2020
- Analysis: Is Trump stretching the law to deploy federal police power in cities? - wenatcheeworld.com - July 31st, 2020
- NRA and Tea Party: Where are you now? - Greensboro News & Record - July 31st, 2020
- Fourth Amendment | United States Constitution | Britannica - July 30th, 2020
- Fourth Amendment - the Text, Origins, and Meaning - July 30th, 2020
- "It's the decent thing to do" - News - Pueblo Chieftain - July 30th, 2020
- Trump Judge Casts the Deciding Vote to Reverse District Court Ruling to Suppress Evidence Obtained in Violation of the Fourth Amendment: Confirmed... - July 29th, 2020
- Trump Judge Casts the Deciding Vote to Give Qualified Immunity to Officers Who Violated Fourth Amendment: Confirmed Judges, Confirmed Fears - People... - July 29th, 2020
- How does the Fourth Amendment apply to my child while at school? - Lawyers.com Blog - July 29th, 2020
- Ga. voters will decide thorny 'sovereign immunity' issue this fall - Georgia Recorder - July 29th, 2020
- Shot Twice in the Back: A Case Tests the Fleeing Felon Defense - The New York Times - July 29th, 2020
- Wronged by the Police? How to Defend Your Rights - Legal Reader - July 29th, 2020
- The innocents at home, anti-mask tales of purity - Greensburg Daily News - July 29th, 2020
- Someone who cared about safe cities would try to bring calm to chaos. Trump is doing the opposite to bolster his law-and-order reelection campaign. -... - July 29th, 2020
- Here's Why Cities Won't Be Able to Stop Trump's Secret Police - VICE - July 29th, 2020
- Radio Diary: A Harvard Law Professor Explains Why Federal Officers' Tactics In Portland Are Unlawful - WBUR - July 26th, 2020
- Two DHS Officials Apparently Just Admitted Their Troops Have Been Violating the Constitution - Law & Crime - July 26th, 2020
- John Krull: The innocents at home, anti-mask tales of purity - Terre Haute Tribune Star - July 26th, 2020
- Protester in Portland sues Trump for 'conspiracy to violate the U.S. Constitution' after alleged attack by feds - Pamplin Media Group - July 26th, 2020
- The Federal Coup to Overthrow the States and Nix the 10th Amendment Is Underway - River Cities Reader - July 26th, 2020
- LETTERS TO THE - Central Wisconsin News - Tribune Phonograph - July 26th, 2020
- The Majority of Americans Oppose Qualified Immunity. Where Is Congress? - Reason - July 26th, 2020
- Oregon sues US agencies over protest arrests; what gave feds authority to intervene? - ABA Journal - July 26th, 2020
- Can use of force restrictions change police behavior? Heres what we know - PBS NewsHour - July 26th, 2020
- Judge refuses to dismiss claims Balch Springs police violated rights of murdered teen Jordan Edwards - The Dallas Morning News - July 25th, 2020
- East Bay Homeless Living On Caltrans Property May Be Entitled To Cash - KALW - July 25th, 2020
- As journalism jobs decrease, the future of the discipline might depend on general education - Poynter - July 25th, 2020
- Trenton cop found a flask inside a councilwoman's car after crash, tried covering it up - The Trentonian - July 25th, 2020