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Can police secretly spy on your home without a warrant? The First Circuit doesn’t know

After three years and two written opinions, the appeals court is unable to make up its mind.

BOSTON (CN) — Despite three years’ deliberation on the issue, the First Circuit failed to decide whether police may install a secret video camera outside someone’s home and record everything that happens there for eight months without a warrant.

The en banc court split 3-3 in a 129-page ruling, leaving the issue completely up in the air.

Judges Sandra Lynch, Jeffrey Howard and Gustavo Gelpí saw no reason why police need a warrant to record what anyone walking by a home can see.

“People are frequently filmed in public, with or without their consent, and these videos can be posted online and viewed thousands of times,” they wrote. They added that “a basic model of one brand of doorbell security camera can be purchased for just $51.99,” after which they provided a citation to a review in Wired magazine.

“Indeed, there are now often demands that officers wear video cameras on their persons as they perform their duties,” they noted.

But Judges David Barron, O. Rogeriee Thompson and William Kayatta — all Obama appointees — argued that even if a casual observer walking by could see or even videotape what was happening outside the home, this case was different.

“We have not yet encountered,” they said, “the casual, accidental observer … who could take in all that occurs in a home’s curtilage over the course of eight months and recall it perfectly and at a moment’s notice.”

This type of unblinking compilation over time “reveals information about a person’s life, including, potentially, familial, political, professional, religious and sexual associations,” they said. And allowing it under the Fourth Amendment would mean that there was nothing to stop the government from “accessing a database containing continuous video footage of every home in a neighborhood, or for that matter, in the United States as a whole.”

The case in question involved Daphne Moore, a former assistant clerk-magistrate with the court system in Springfield, Massachusetts, as well as her daughter and son-in-law. Police charged members of the family with trafficking drugs from Springfield to Vermont, where they would exchange them for cash and firearms.

Much of the evidence came from a secret video camera that police mounted on a utility pole outside Moore’s home, where her daughter and son-in-law were frequent guests. The camera recorded everything that happened outside the home in color and produced a searchable digitized record.

Police officers were able to tilt and pan the camera, as well as zoom in to read license plates, although they couldn’t see inside the home or record audio.

The First Circuit approved a similar camera back in 2009. But the Moores argued that the 2009 case was no longer valid after a 2018 Supreme Court decision that said the Fourth Amendment could be violated by a cellphone-location-tracking device.

A federal judge sided with the Moore family in June 2019, ruling that the camera evidence couldn’t be used at trial because the police didn’t have a warrant. A year later, a three-judge panel of the First Circuit disagreed and sided with the government. But the court agreed to rehear the case en banc at the urging of Barron, who recently became the circuit’s chief judge.

The court’s struggle with the issue was obvious from the fact that it took the judges more than 14 months after oral argument to issue a decision, an extraordinary amount of time.

The result of the ruling is a loss for the Moores, because Barron, Thompson and Kayatta ultimately concluded that the evidence in this particular case was admissible because it was gathered prior to the Supreme Court’s 2018 decision.

As for future cases, the result is unclear. There’s a good chance the Supreme Court will take the opportunity to decide the issue, given the First Circuit’s inability to reach a result and the fact that other courts have divided over it, with the Seventh Circuit allowing such a pole camera despite the Supreme Court’s recent ruling and the Colorado Supreme Court holding otherwise.

As technology becomes more and more sophisticated, any such ruling would give the court a chance to weigh in more broadly on the limits of privacy rights.

For Lynch, Howard and Gelpí — appointed by Presidents Bill Clinton, George W. Bush and Joseph Biden, respectively — the Moores “did not have a subjective expectation of privacy, nor would it have been objectively reasonable for them to.” The judges also said that pole cameras are “plainly a conventional surveillance tool” that have been used since the 1980s and are not “souped-up” and “newfangled” as their colleagues suggested.

But to the other judges, “the creation of a searchable, digital videologue of all the activities in the front curtilage of a home for many months” suggests a “brave new world.” They feared that it could lead to unwarranted privacy intrusions by the government “to an extent that has been unimaginable for most of our history.”

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