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.

The Defendants argued that Bucci was no longer controlling in the wake of Supreme Court’s decision in Carpenter v. United States, which held that the warrantless obtainment of cell-site location information was an intrusion into a person’s reasonable expectation of privacy and thus violated the Fourth Amendment.  Defendants argued that Carpenter made clear that a person has an objective reasonable expectation of privacy in the whole of their movements, even if exposed to the public.  Analogizing their situation to that in Carpenter, the Defendants argued that an eight-month long recording of the movements into and around their home was an unconstitutional search because they had a reasonable expectation that such movements would not be monitored and recorded for such a lengthy period of time.

The district court agreed, and held that Bucci was no longer controlling precedent for this particular set of facts.  Acknowledging that Carpenter was a “narrow” decision, the district court nevertheless grounded its decision on Carpenter’s “necessary reasoning; that is, a person does have some objectively reasonable expectation of privacy in space visible to public.”  Ultimately, the district court found that Defendants had in fact established both a subjective and objective reasonable expectation of privacy in the whole of their movements into and around their home, and that the Government’s use of a pole camera, and its manner of use, “permit[ted] the Government to piece together intimate details” of Defendants’ lives in contravention of the Fourth Amendment’s protection against unreasonable searches.

The First Circuit overturned the district court’s decision that Bucci was no longer binding precedent, because (1) the Carpenter opinion was “narrow,” (2) Carpenter did not “call into question conventional surveillance techniques and tools,” and (3) such conventional techniques include “security cameras.”  The First Circuit explained further that Bucci “firmly rooted its analysis in language from previous Supreme Court decisions, including Katz, Smith v. Maryland, California v. Ciraolo, and Kyllo v. United States,” the principles of which were not called into question by Carpenter.  Because the First Circuit held that Bucci was still controlling precedent, and Bucci had determined that there was no objective reasonable expectation of privacy in activity outside the home and exposed to public view, the use of the pole camera to film the outside of Defendants’ home in this case likewise did not constitute a search under the Fourth Amendment.

The First Circuit opinion relied additionally on stare decisis, and emphasized that Bucci was rooted primarily in the reasonable expectations test first espoused in Katz(“[T]he 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.”), Ciraolo (“The Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares.”), and Kyllo (holding that the use of non-standard heat-detection technology on the home was a search but affirming that “the lawfulness of warrantless visual surveillance of a home has still been preserved”).  Thus, even assuming Bucci did not control—which the First Circuit found it did—the lower court was still bound by the same Supreme Court precedent upon which Bucci relied.

Judge David Barron separately concurred in the judgment.  He began by acknowledging the logic of Defendants’ arguments, analogizing the case to sign stealing in baseball—while it is accepted that a runner might steal a sign at certain discrete times, using a hidden camera to continuously record all signs throughout a game is not.  Judge Barron also acknowledged the argument made by the Center for Democracy & Technology (amicus curiae represented by Covington on its brief) “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.”

Judge Barron agreed “that Bucci, per the law-of-the-circuit doctrine, stands in the way of the defendants’ contention that the surveillance here amounted to a search.”  However, he did not agree with the majority that “Carpenter not only prevents us, as a panel, from concluding that Bucci called it wrong, but also requires us, as a Circuit, to conclude that Bucci called it right.”  Instead, he observed that Carpenter acted as a cautionary warning from the Supreme Court that courts, including the First Circuit, “must be more attentive than Bucci was in its brief [one-paragraph] discussion of the Fourth Amendment to the risk that new technology poses even to those ‘privacies of life’ that are not wholly shielded from public view.”

Judge Barron focused further on the pace of technological change, and took issue with the majority’s decision to equate the type of pole camera used here to the same type of “security camera” mentioned in Carpenter.  Specifically, he argued that the caveat in Carpenter for the allowance of conventional surveillance techniques had “no bearing on the question before us.”  Judge Barron also was critical of Bucci’s brief discussion of the Fourth Amendment and of Katz.  In particular, he highlighted a key omission of the reasonable expectations test from Bucci—“But what [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”  Judge Barron argued that the line of Supreme Court cases discussing reasonable expectations of privacy—Katz, Ciraolo, Kyllo, and ultimately Carpenter—do not affirm the holding in Bucci, but instead call into question whether Bucci did not “misappl[y] those precedents from the get-go.”

Ultimately, Judge Barron called on the First Circuit to “give Bucci fresh consideration en banc, so that we may determine for ourselves whether the result that it requires is one that the Supreme Court’s decisions, from Katz to Carpenter, prohibit.”