United States v. Moore-Bush

• Decision Date: 16 June 2020
• Docket Number: 19-1626,Nos. 19-1582,19-1625,Nos. 19-1583,s. 19-1582,s. 19-1583
• Citation: 963 F.3d 29
• Parties: UNITED STATES, Appellant, v. Nia MOORE-BUSH, a/k/a Nia Dinzey, Defendant, Appellee. United States, Appellant, v. Daphne Moore, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

963 F.3d 29

UNITED STATES, Appellant,

v.Nia MOORE-BUSH, a/k/a Nia Dinzey, Defendant, Appellee.

United States, Appellant,

v.Daphne Moore, Defendant, Appellee.

Nos. 19-1582

19-1625

Nos. 19-1583

19-1626

United States Court of Appeals, First Circuit.

June 16, 2020

Randall E. Kromm, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellant.

Judith H. Mizner, Assistant Federal Public Defender, for appellee Nia Moore-Bush, a/k/a Nia Dinzey.

Linda J. Thompson, with whom John M. Thompson and Thompson & Thompson, P.C. were on brief, for appellee Daphne Moore.

Matthew R. Segal, Jessie J. Rossman, Kristin M. Mulvey, American Civil Liberties Union Foundation of Massachusetts, Nathan Freed Wessler, Brett Max Kaufman, and American Civil Liberties Union Foundation on brief for American Civil Liberties Union and American Civil Liberties Union of Massachusetts, amici curiae.

Trisha B. Anderson, Alexander A. Berengaut, Jadzia Pierce, and Covington & Burling LLP, Washington, DC, on brief for Center for Democracy & Technology, amicus curiae.

Before Howard, Chief Judge, Lynch and Barron, Circuit Judges.

LYNCH, Circuit Judge.

This appeal by the prosecution raises the question of whether the Supreme Court's opinion in Carpenter v. United States, ––– U.S. ––––, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018), a cell phone location automatic tracking technology case, provides a basis for departing from otherwise binding and factually indistinguishable First Circuit precedent in United States v. Bucci, 582 F.3d 108 (1st Cir. 2009), and Supreme Court precedent, including Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), on which Bucci is based. In departing from that precedent and suppressing evidence obtained from a pole camera, the district court erred by violating the doctrine of stare decisis.

Under the doctrine of stare decisis, all lower federal courts must follow the commands of the Supreme Court, and only the Supreme Court may reverse its prior precedent. The Court in Carpenter was concerned with the extent of the third-party exception to the Fourth Amendment law of reasonable expectation of privacy and not with the in-public-view doctrine spelled out in Katz and involved in this case.

Carpenter was explicit: (1) its opinion was a "narrow" one, (2) it does not "call into question conventional surveillance techniques and tools," and (3) such conventional technologies include "security cameras." Carpenter, 138 S. Ct. at 2220. Pole cameras are a conventional surveillance technique and are easily thought to be a species of surveillance security cameras. Thus, Carpenter, by its explicit terms, cannot be used to overrule Bucci.

The district court erred for other separate reasons as well. The Bucci decision firmly rooted its analysis in language from previous Supreme Court decisions, including Katz, Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986), and Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). Bucci, 582 F.3d at 116-17. The Court in Carpenter was clear that its decision does not call into question the principles Bucci relied on from those cases. Carpenter, 138 S. Ct. at 2213-19.

The district court also transgressed a fundamental Fourth Amendment doctrine not revoked by Carpenter, that what one knowingly exposes to public view does not invoke reasonable expectations of privacy protected by the Fourth Amendment. This understanding, as explained by Justice Scalia in Kyllo, was part of the original understanding of the Fourth Amendment at the time of its enactment. Kyllo, 533 U.S. at 31-32, 121 S.Ct. 2038.

Affirming the district court's order would mean violating the law of the circuit doctrine, that "newly constituted panels in a multi-panel circuit court are bound by prior panel decisions that are closely on point." San Juan Cable LLC v. P.R. Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010). Although there are two exceptions to the doctrine, "their incidence is hen's-teeth-rare." Id. And neither exception is applicable here.

The argument made in support of the district court's suppression order is that the logic of the opinion in Carpenter should be extended to other technologies and other Fourth Amendment doctrines, and this extension provides a basis to overturn this circuit's earlier precedent in Bucci. Nothing in Carpenter's stated "narrow" analysis triggers the rare second exception to the law of the circuit doctrine. Carpenter, 138 S. Ct. at 2220.

The defendants thus ask us to violate the vertical rule of stare decisis, that all lower federal courts must follow the commands of the Supreme Court and that only the Supreme Court may reverse its prior precedent, and the law of the circuit, binding courts to follow circuit precedent. See Bryan A. Garner et al., The Law of Judicial Precedent 21-43 (2016). Affirming the district court would also violate the original understanding of the Fourth Amendment.

I.

A. The Investigation and Indictments

The following facts are undisputed. Following a tip from a cooperating witness ("CW"), the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") began investigating defendant Nia Moore-Bush in January 2017 for the unlicensed sale of firearms. About a month into the investigation, in February 2017, Moore-Bush and her then-boyfriend, later-husband, Dinelson Dinzey moved in with Moore-Bush's mother, defendant Daphne Moore, at 120 Hadley Street in Springfield, Massachusetts, in a quiet residential neighborhood. At the time, Moore was a lawyer and Assistant Clerk Magistrate for the Hampden County, Massachusetts, Superior Court. Moore-Bush and Dinzey lived at the property "off and on" for the period relevant to this appeal.

The government had evidence that 120 Hadley Street, Moore's property, was the site of illegal activity even before installation of the pole camera. For example, on May 5, 2017, the CW, acting on the government's orders, wore a recording device and purchased four guns illegally from Moore-Bush, through Dinzey, at that location.

Approximately two weeks later, on or about May 17, 2017, ATF installed a camera towards the top of the public utility pole across the public street from the unfenced-in house at 120 Hadley Street (the "pole camera"). The record is silent as to whether the camera was visible. The camera was used until mid-January 2018, when Moore-Bush and Dinzey were arrested. Investigators did not seek any judicial authorization to install the pole camera and did not need to do so under the law at that time in May of 2017. The images from the pole camera captured one side of the front of Moore's house. The camera did not capture the house's front door; it did show the area immediately in front of the side door, the attached garage, the driveway to the garage, part of the lawn, and a portion of the public street in front of the house. A tree in the front yard, when it had leaves, partially obstructed the camera's view.

The government also from time to time had investigators conduct physical surveillance of these same areas, and presumably more areas, from the public street. Those surveillance officers could see everything the pole camera could see, and even more. The tree, when it had leaves, did not obstruct their view. The record is silent as to whether the officers on the street used cameras, binoculars, or the like, but during physical surveillance they were often close enough to observe and record license plate numbers of vehicles in the driveway.

The district court declined to hold an evidentiary hearing on the technical capabilities of the pole camera; nonetheless, the following is established by the record. The pole camera operated 24/7. Officers could access the video feed either live or via recordings. When they were watching the pole camera's live stream, but only then, officers could control the camera's zoom, pan, and tilt features remotely, akin to what an observer on the street could see with or without visual aids. The zoom feature was powerful enough for officers observing live to read the license plates on cars parked in the driveway. The camera's resolution was much lower at night in the darkness. Regardless of the zoom feature, the pole camera could not capture anything happening inside of the house. Everything it captured was visible to a passerby on the street. The pole camera did not and could not capture audio, and so captured no sound, even sounds which could be heard on the street. The record does not indicate what the pole camera looked like or its manufacturer.

The camera did not cover or capture all aspects of life at 120 Hadley Street. According to an affidavit from a government investigator appended to one of the wiretap applications, the pole camera footage was only of limited use because it captured just a portion of the front of the house, was partially obstructed by a tree, and had to be monitored live in order to use the zoom feature to see faces, license plates, and other details clearly.

The government used different investigative tools over time to investigate Moore-Bush and those thought to be co-conspirators at this location, including using a CW and having officers conduct physical surveillance of the property. Warrants were obtained, based in part on the pole camera evidence. Pursuant to warrants, law enforcement tracked suspects' locations using cell phone location data. Pursuant to warrants, investigators mounted GPS trackers on suspects' vehicles. Pursuant to a warrant, officers searched the private contents of Dinzey's Facebook account. Pursuant to court orders, officers installed pen registers and trap and trace devices on several cell phones. They received judicial authorization to wiretap several phones. They also listened to consensually recorded jail calls made by Moore's long-time romantic partner, who they believed was also involved in...