On June 16, 2020, the First Circuit released its opinion in United States v. Moore-Bush.  The issue presented was whether the Government’s warrantless use of a pole camera to continuously record for eight months the front of Defendants’ home, as well as their and their visitors’ comings and goings, infringed on the Defendants’ reasonable expectation of privacy in and around their home and thereby violated the Fourth Amendment.  The appeal followed the district court’s decision in June 2019 in favor of Defendants’ motions to exclude evidence obtained via the pole camera.  The Government, without obtaining a warrant, had installed a pole camera on a utility pole across the street from Defendants’ residence.  The pole camera (1) took continuous video recording for approximately eight months, (2) focused on the driveway and the front of the house, (3) had the ability to zoom in so close that it can read license plate numbers, and (4) created a digitally searchable log.

In their motions to exclude, the Defendants, relying on Katz v. United States, argued they had both a subjective and objective reasonable expectation of privacy in the movements into and around their home, and that the warrantless use of the pole camera therefore constituted an unreasonable search under the Fourth Amendment.  The Government relied on an earlier First Circuit case, United States v. Bucci, which held that there was no reasonable expectation of privacy in a person’s movements outside of and around their home—“An individual does not have an expectation of privacy in items or places he exposes to the public.”  Thus, Bucci held that use of a pole camera for eight months did not constitute a search.
Continue Reading United States v. Moore-Bush: No Reasonable Expectation of Privacy Around the Home

On June 22, the Supreme Court issued its decision in Los Angeles v. Patel, striking down a Los Angeles city ordinance that allowed law enforcement to inspect hotel guest registers on demand as facially unconstitutional.  Writing for a 5-4 majority, Justice Sotomayor held that the ordinance violated the Fourth Amendment by failing to provide for any form of review of search requests before hotels were forced to comply with law enforcement demands.  According to the Court, this failure was fatal to the City of Los Angeles’ argument that the ordinance satisfies the requirements for the administrative search exception to the Fourth Amendment’s warrant requirement.
Continue Reading Supreme Court Strikes Down Ordinance Authorizing Warrantless Searches of Hotel Records

Last week, a federal judge in the Eastern District of Washington suppressed evidence from a disguised webcam that had monitored the front yard of the defendant’s home for six weeks.

In United States v. Vargas, U.S. District Judge Edward F. Shea ruled that defendant Leonel Michel Vargas had a reasonable expectation of privacy in the activities occurring in and around the front yard of his rural home, and accordingly, that the warrantless, continuous and covert recording of this space violated the Fourth Amendment.  In doing so, the court held that law enforcement may remotely and continuously view and record an individual’s front yard through the use of a hidden video camera located outside of the individual’s property only with a valid search warrant, which the officers in this case failed to procure in this case.


Continue Reading US Court: Reasonable Expectation of Privacy Exists in Rural Front Yard

In the wake of the Boston marathon bombings and in response to the quick work of law enforcement officials who were significantly aided in their identification of the suspected bombers by videos from government- and privately owned surveillance cameras, there has been renewed public discussion regarding the privacy implications of the proliferation of security cameras. While many government officials advocate the deployment of more security cameras and law enforcement access to captured material, privacy advocates urge caution with regard to increased surveillance. In particular, privacy advocates voice concern with regard to the potential use of surveillance by law enforcement officers on “fishing expeditions” — combing through video footage to identify individuals engaged in unusual behavior, without having any other evidence that those individuals are engaged in illegal activities. Below we have highlighted a few interesting pieces discussing the issues.


Continue Reading Boston Marathon Bombings Spark Renewed Debate Over Surveillance

Earlier this week, Twitter appealed a New York state judge’s ruling that required the company to produce an Occupy Wall Street protestor’s tweets, email address, and certain subscriber information.  The trial court judge had reasoned that the public nature of Twitter meant that the defendant lacked privacy interests in his tweets and that the government’s

Last week, the California legislature passed one of the nation’s most restrictive bills governing law enforcement’s ability to access location information.  Under the California Location Privacy Act, state and local government agencies would be required to secure search warrants before obtaining historical or current location information for any electronic device.  The California bill would curtail some of the law enforcement practices described in this New York Times article, which noted that cellphone carriers responded to 1.3 million law enforcement demands in 2011 — many of which came in the form of subpoenas, emergency requests, or other demands that can be less legally burdensome to secure than warrants.  

The California bill contains only a few narrow exceptions to the warrant requirement, such as responding to a user’s 911 call; with a user’s informed, affirmative consent; or in emergencies involving immediate danger of death or serious physical injury.  In the final round of amendments, the bill’s sponsors added an immunity provision for providers of location information: the Act is not to be construed “to create a cause of action against any foreign or California corporation, its officers, employees, agents, or other specified persons, for providing location information.”


Continue Reading California Legislature Bans Warrantless Location Tracking

The federal government conducted a search for purposes of the Fourth Amendment when it attached a GPS tracking device to a suspect’s car and used the device to track the suspect’s movements for 28 days, the U.S. Supreme Court ruled Monday.

All nine justices voted to uphold the decision by the U.S. Court of Appeals for the D.C. Circuit reversing Antoine Jones’s drug-trafficking conviction, which was partly based on evidence obtained from the tracking device. But the Court split 5-4 on how the government’s actions constituted a search within the meaning of the Fourth Amendment.

A five-justice majority, in an opinion written by Justice Antonin Scalia, held that the government’s physical attachment of the device to Jones’s car was the critical factor because the Fourth Amendment specifically protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”  Physically trespassing on one of Jones’s “effects” — the car — in order to obtain information would have been considered a search when the Fourth Amendment was adopted, the Court held, and such an intrusion therefore requires the government to obtain a warrant under most circumstances. Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Sonia Sotomayor joined Justice Scalia’s majority opinion.


Continue Reading Supreme Court: Attaching GPS Tracker to Suspect’s Car Constitutes Search For Purposes of Fourth Amendment

by David Fagan and Alex Berengaut

On November 10, 2011, Judge Liam O’Grady of the United States District Court for the Eastern District of Virginia issued a 60-page memorandum opinion in a dispute over the validity of a special court order issued to Twitter for non-content records for certain users connected to the government’s Wikileaks

Government officials must seek a warrant to compel the disclosure of cell phone location data, a federal district court ruled, holding that a federal law allowing the government to obtain some information without a warrant violates the Fourth Amendment.

In a one-page order upholding a magistrate judge’s decision, U.S. District Judge Lynn N. Hughes, of the Southern District of Texas, held Nov. 11 that records showing the “date, time, called number, and location of the telephone when the call was made” are constitutionally protected, and thus the government needs a warrant based on probable cause to compel the disclosure of such data. That standard is higher than the standard required for a court order under the Stored Communications Act, which requires a government entity to demonstrate that there are “specific and articulable facts showing that there are reasonable grounds to believe” the contents of or records about an electronic communication are “relevant and material to an ongoing criminal investigation.”


Continue Reading Federal Court Finds Warrant Required to Obtain Cell-Phone Locations