United States v. Moore-Bush

• Decision Date: 09 June 2022
• Docket Number: s. 19-1582,19-1625,s. 19-1583,19-1626
• Citation: 36 F.4th 320 (Mem)
• 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

36 F.4th 320 (Mem)

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 9, 2022

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, with whom Jessie J. Rossman, Nathan Freed Wessler, Brett Max Kaufman, Andrew Crocker, Samir Jain, Gregory T. Nojeim, and Mana Azarmi were on brief, for amici curiae American Civil Liberties Union, American Civil Liberties Union of Massachussetts, Center for Democracy & Technology, and Electronic Frontier Foundation in support of defendant-appellees.

Bruce D. Brown, with whom Katie Townsend, Gabriel Rottman, and Mailyn Fidler were on brief, for amici curiae Reporters Committee for Freedom of the Press and Eight Media Organizations in support of defendant-appellees.

Before Barron, Chief Judge, Lynch, Howard, Thompson, Kayatta, and Gelpí, Circuit Judges.

Opinion En Banc

AMENDED OPINION^*

Per curiam.

The district court order granting Daphne Moore and Nia Moore-Bush's motions to suppress is unanimously reversed by the en banc court. We remand with instructions to deny the motions to suppress.

BARRON, Chief Judge, THOMPSON and KAYATTA, Circuit Judges, concurring.

The Fourth Amendment to the U.S. Constitution "seeks to secure ‘the privacies of life’ against ‘arbitrary power,’ " Carpenter v. United States, ––– U.S. ––––, 138 S. Ct. 2206, 2214, 201 L.Ed.2d 507 (2018) (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886) ), by "plac[ing] obstacles in the way of a too permeating police surveillance," id. (quoting United States v. Di Re, 332 U.S. 581, 595, 68 S.Ct. 222, 92 L.Ed. 210 (1948) ). It is with that "Founding-era understanding[ ] in mind," id., that we must determine in these consolidated appeals whether the Fourth Amendment places any limits on the use by law enforcement of the kind of surveillance -- unimagined in 1789 -- that it engaged in here: the continuous and surreptitious recording, day and night for eight months, of all the activities in the front curtilage of a private residence visible to a remotely-controlled digital video camera affixed to a utility pole across the street from that residence.

The Fourth Amendment issue concerning the use of such surveillance arises here in connection with the criminal cases that the federal government brought in the United States District Court for the District of Massachusetts against Nia Moore-Bush and her mother, Daphne Moore, on federal drug- and gun-related charges. Each defendant moved in the District Court to suppress on Fourth Amendment grounds all evidence derived from the digital compendium created through the long-term use of the video pole-camera surveillance of the front curtilage of the defendants’ residence. The government opposed the motions on the ground that no Fourth Amendment "search" had been conducted. The District Court then granted the defendants’ motions to suppress.

As we will explain, we conclude -- unlike our colleagues -- that the government did conduct a Fourth Amendment "search" when it accessed the digital video record that law enforcement had created over the course of the eight months in question, notwithstanding the government's contention that the record itself is merely a compendium of images of what had been exposed to public view. As we also will explain, however, we agree with our colleagues that the District Court's order granting the defendants’ motions to suppress must be reversed.

We come to that latter conclusion because the relevant controlling precedent from our circuit that was in place at the time that the government drew upon the pole-camera surveillance was United States v. Bucci, 582 F.3d 108 (1st Cir. 2009). And, there, a panel of this court had held that the use by law enforcement of uncannily similar pole-camera surveillance did not constitute a search within the meaning of the Fourth Amendment and so raised no Fourth Amendment concerns. Id. at 116-17. Thus, while we conclude -- unlike our colleagues -- that subsequent developments in Fourth Amendment jurisprudence support the overruling of Bucci and the conclusion that the government conducted a search here, we also conclude that, under the "good faith" exception to the Fourth Amendment's warrant requirement, see Davis v. United States, 564 U.S. 229, 238-41, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011), the government was entitled to rely on Bucci in acting as it did, Bucci, 582 F.3d at 116. Cf. United States v. Campbell, 26 F.4th 860, 873, 887-88 (11th Cir. 2022) (en banc) (applying the good-faith exception even though it had not been raised by the parties in their initial briefings).

The result is that our court is unanimous in holding that the District Court's order granting the motions to suppress must be reversed. Our court's rationale for that holding, however, is most decidedly not.

The three of us who join this separate opinion would reverse the District Court's order granting the defendants’ motions to suppress based solely on the "good faith" exception to the Fourth Amendment's warrant requirement. We reject, however, our colleagues’ view that the accessing by law enforcement in a criminal case of the record created by the kind of suspicionless, long-term digital video surveillance at issue here does not constitute a Fourth Amendment search.

Mindful of the brave new world that the routine use of such all-encompassing, long-term video surveillance of the front curtilage of a home could bring about, we are convinced that the government does conduct a search within the meaning of the Fourth Amendment when it accesses the record that it creates through surveillance of that kind and thus that law enforcement, in doing so, must comply with that Amendment's limitations. For, in accord with post- Bucci precedents from the Supreme Court of the United States that recognize the effect that the pace of technological change can have on long assumed expectations of privacy, we are convinced that no other conclusion would be faithful to the balance that the Fourth Amendment strikes between the right to be "secure" in one's home and the need for public order.¹

I.

A.

The following facts -- including the characteristics of the pole camera and the recording that it produced -- are undisputed on appeal. The federal Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") began investigating Moore-Bush in January 2017, for the unlicensed sale of firearms.² ATF began to have concerns during the investigation that Moore-Bush was trafficking in narcotics.

About a month into the ATF investigation, Moore-Bush moved in with her mother, Moore, who lived at 120 Hadley Street in Springfield, Massachusetts. ATF agents claimed that they came to suspect that Moore-Bush -- though not, at that point, her mother -- was using the Hadley Street residence as the site for illegal firearms and narcotics transactions.

The location of the home made it difficult for law enforcement to undertake the physical surveillance of it. So, on or around May 17, 2017, ATF agents, without seeking a warrant, surreptitiously installed a digital video camera near the top of a utility pole across the public street from the residence.

The District Court found -- based on the defendants’ undisputed contentions -- that the digital, video pole camera was "hid[den] ... out of sight of its targets." It further found that law enforcement used the camera to "surreptitiously surveil[ ]" the Hadley Street residence.

ATF agents were able to view a live-stream of what the camera recorded through a password-protected website. The agents also could, remotely, pan, tilt, and zoom³ the camera to better focus on individuals or objects of interest.

When not zoomed, the camera had within its view roughly half of the front structure of the 120 Hadley Street residence, including its side entrance and a gardening plot near that entrance, the whole of the home's private driveway, the front of the home's garage, much of the home's front lawn, and the vast majority of the walkway leading from the home's private driveway up to the home's front door (although not the front door itself).⁴ The camera also had within its view a portion of the public street that ran parallel to the front of the house and perpendicular to the private driveway.

Because of the positioning of the camera, it was not able to peer into the home's interior. However, images in the record taken from the footage captured by the camera indicate that the camera could discern the presence of a person looking out the front windows of the house and see inside the front of the garage when its door was up.

The camera recorded in color, but it did not record audio. The camera's footage was digitally stored and could be retrieved and re-watched at any time.

The camera could and did operate at night, but the resulting footage was lower in quality. For example, when the camera recorded in the dark, it became more difficult -- although not impossible -- for the camera accurately to depict license plate numbers.

The camera recorded the Hadley Street residence for approximately eight months without interruption. It captured numerous comings, goings, and occurrences in the front curtilage of the residence -- from the mundane (such as persons going to and from the residence, parking, smoking cigarettes, or taking out the trash) to the potentially incriminating. The resulting record included all these movements and interactions. The government does not represent that law enforcement officers were continuously watching the livestream of the video while the...