Commonwealth v. Mora

• Citation: 150 N.E.3d 297,485 Mass. 360
• Decision Date: 06 August 2020
• Docket Number: SJC-12890
• Parties: COMMONWEALTH v. Nelson MORA (and two companion cases ).
• Court: United States State Supreme Judicial Court of Massachusetts

485 Mass. 360

150 N.E.3d 297

COMMONWEALTH

v.Nelson MORA (and two companion cases ¹ ).

SJC-12890

Supreme Judicial Court of Massachusetts, Essex..

Argued May 5, 2020

Decided August 6, 2020

Stephen D. Judge for the defendants.

Anna Lumelsky, Assistant Attorney General, for the Commonwealth.

Jennifer Lynch & Andrew Crocker, of California, Gregory T. Nojeim, of the District of Columbia, & Matthew R. Segal, Jessie J. Rossman, Kristin M. Mulvey, & Nathan Freed Wessler, for American Civil Liberties Union & others, amici curiae, submitted a brief.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

LENK, J.

Over a period of seven months, the Attorney General investigated an alleged drug distribution network based in Essex County. At different times during the course of the investigation, officers installed a total of five hidden video cameras on public telephone and electrical poles. Three of these cameras were aimed towards homes of alleged members of the drug conspiracy. Using the video footage collected by these "pole cameras," in addition to other evidence, the Commonwealth secured indictments against twelve defendants, including the defendants Nelson Mora, Ricky Suarez, and Lymbel Guerrero. Eight defendants moved to suppress the pole camera footage, and evidence derived from that footage, as the fruits of an unreasonable search, in violation of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. A Superior Court judge denied their motions on the ground that the pole camera surveillance did not constitute a search in the constitutional sense.

We conclude that the continuous, long-term pole camera surveillance targeted at the residences of Mora and Suarez well may have been a search within the meaning of the Fourth Amendment, a question we do not reach, but certainly was a search under art. 14. We remand for further findings as to whether investigators had probable cause to conduct these searches when the cameras targeted at Mora's and Suarez's houses were first installed.

1. Background. The parties stipulated to the essential facts relevant to the motion to suppress.²

In November of 2017, a confidential informant (CI) identified Mora as a large-scale drug distributor. The CI introduced an undercover officer to Mora for the purposes of arranging controlled drug purchases. Over the course of the investigation, the officer made ten controlled purchases of oxycodone and fentanyl from Mora.³

Shortly after the first controlled purchase, on December 6, 2017, investigators installed a pole camera near Mora's house in Lynn. This camera afforded a view of a portion of the front of his house, the sidewalk next to it, and the adjacent street. On March 23, 2018, investigators set up a second camera near Suarez's residence in Peabody, which provided a similar view of his home. The cameras directed at Mora's and Suarez's homes provided investigators with a view of their front doorways. Investigators later installed pole cameras in three other locations; one was directed along a street allegedly used by Mora to conduct his drug business, one was directed at the home of another defendant, and the final one near the home of another individual who is not a defendant. All of the cameras recorded uninterruptedly, twenty-four hours a day, seven days a week, until May 23, 2018. In total, the camera positioned near Mora's home captured 169 days of footage; the camera near Suarez's house captured sixty-two days.

The pole cameras used in the investigation shared the same technical capabilities. Each camera was able to make video but not audio recordings. None of the cameras had infrared or night vision capabilities, nor could they view inside any residence. Investigators also could, however, remotely zoom and angle the cameras in real time. On occasion, these features permitted investigators to read the license plate on a vehicle. These cameras captured without limitation all persons coming and going from the targeted residences.

While the cameras were operating, investigators could view the footage remotely using a web-based browser. The footage also was saved in a searchable format, allowing officers to review particular previously-recorded events. All of the data gathered through this surveillance was stored on a State police server, and later preserved on a removable computer hard drive.

Beginning in March of 2018, while the pole camera surveillance was underway, investigators sought and secured warrants for other forms of surveillance, including wiretaps of Mora's and other defendants' cellular telephones, as well as global positioning system (GPS) monitoring. On May 21, 2018, in conjunction with the arrests of the twelve defendants, investigators obtained search warrants for several locations, including the residences of Mora, Suarez, and Guerrero. The subsequent residential searches uncovered substantial quantities of heroin, cocaine, and other illicit substances, along with approximately $415,000 in United States currency.

Mora, Suarez, and Guerrero moved to suppress the pole camera footage, as well as other evidence derived from that footage.⁴ The five remaining⁵ defendants joined their motions. In October of 2019, the motion judge held an evidentiary hearing on these consolidated motions.

In a detailed memorandum and decision, the judge denied the motions to suppress on the ground that the pole camera surveillance did not violate the defendants' "reasonable expectation[s] of privacy." See Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). He concluded that the defendants whose homes were not captured by pole cameras, including Guerrero's, experienced only a de minimis invasion of their privacy. The judge acknowledged that the defendants whose residences were targeted, including Mora and Suarez, presented stronger arguments. Nonetheless, he determined that, because the pole camera surveillance in this case captured only information that was otherwise visible to the public, it was not so invasive that it constituted a "search" in the constitutional sense.

The judge distinguished the video footage collected by the pole cameras from location tracking data such as GPS monitoring and cell site location information (CSLI) gathered from cellular telephones. See, e.g., Commonwealth v. Augustine, 467 Mass. 230, 255, 4 N.E.3d 846 (2014), S.C., 470 Mass. 837, 26 N.E.3d 709 and 472 Mass. 448, 35 N.E.3d 688 (2015) (accessing multiple weeks of historical CSLI was "search" under art 14). The judge noted that the pole cameras covered only a fixed point; thus, he concluded, they did not track the defendants through public and private spaces, thereby revealing details about their private associations. Because, in his view, this surveillance did not expose the same degree of associational information as novel tracking technologies, such as CSLI, the judge determined that pole cameras remain a traditional surveillance technique that may be employed without a warrant.⁶

Three of the defendants -- Mora, Suarez, and Guerrero -- filed a petition in the county court for leave to pursue an interlocutory appeal of the denial of their motions to suppress; the single justice allowed the consolidated petitions and ordered that the appeal proceed in this court.

2. Discussion. a. Standard of review. Typically, "[w]hen reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law" (quotations and citation omitted). Commonwealth v. Almonor, 482 Mass. 35, 40, 120 N.E.3d 1183 (2019). Because the judge's findings were based entirely on documentary evidence,⁷ however, we review both his findings of fact and his conclusions of law de novo. See Commonwealth v. Johnson, 481 Mass. 710, 714-715, 119 N.E.3d 669, cert. denied, ––– U.S. ––––, 140 S. Ct. 247, 205 L.Ed.2d 138 (2019).

b. Whether the pole camera footage should have been suppressed. On appeal, the central question remains whether the pole camera surveillance of Mora, Suarez, and Guerrero was a warrantless search in violation of the Fourth Amendment or art. 14, such that the evidence gathered through that surveillance should be suppressed. We first must decide whether any of the surveillance in this case was a "search" in the constitutional sense. Commonwealth v. Magri, 462 Mass. 360, 366, 968 N.E.2d 876 (2012). "Under 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." Augustine, 467 Mass. at 241, 4 N.E.3d 846.

Most courts to have addressed pole camera surveillance have concluded that it does not infringe on any reasonable expectation of privacy. The recent decision in United States v. Moore-Bush, 963 F.3d 29 (1st Cir. 2020), typifies these courts' approach. There, the United States Court of Appeals for the First Circuit determined that pole camera surveillance is not a search because it falls under the "public view" principle that an individual does not have an expectation of privacy in items or places he exposes to the public. See id. at 32. See id. at 42, quoting California v. Ciraolo, 476 U.S. 207, 213, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) ("[a]ny home located on a busy public street is subject to the unrelenting gaze of passersby, yet ‘[t]he 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’ "). See also United States v. Bucci, 582 F.3d 108, 116–117 (1st Cir. 2009) ; United States v. Jackson, 213 F.3d 1269, 1280–1281 (10th Cir.), judgment vacated on other grounds, 531 U.S. 1033, 121 S.Ct. 621, 148 L.Ed.2d 531 (2000) ; United States vs. Aguilera, U.S. Dist. Ct., No. 06-CR-336, 2008 WL 375210 (E.D. Wis. Feb. 11,...