Nelson Mora, et al. v. Commonwealth of Massachusetts, SJC-12890.  Oral argument scheduled for May 5, 2020.

Related:   Commonwealth v. McCarthy, SJC-12750.  Opinion issued April 16, 2020.

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Defendants were arrested as part of an ongoing state effort to interrupt commerce in drugs.  As part of that effort, police installed, without warrants, video cameras in public spaces outside defendants’ houses.  These “poll cameras” permitted uninterrupted video recording of the outside of these houses and were equipped with zoom features to permit closer scrutiny.  

Defendants moved to suppress the video evidence as violative of the Fourth Amendment of the U.S. Constitution and Article 14 of the Constitution of the Commonwealth of Massachusetts.  The Superior Court denied relief, finding that defendants have no reasonable expectation of privacy in the exteriors of their homes, which were plainly visible to the world.

Interlocutory review was sought and granted.

Appellants/Defendants argue that incessant videorecording denies defendants’ constitutionally promised privacy interests, which are not defined with reference to brightline distinctions between exteriors and interiors, but rather with respect to the reasonable expectations of privacy enunciated in Katz v. United States, 389 U.S. 347 (1969).  Static, unceasing and warrantless mechanical surveillance is a search which intrudes beyond any reasonable bounds of police powers.  

Defendants are supported by several civil rights and technology advocacy entities, who join in characterizing the surveillance in issue as “Orwellian.”

The state stands firm in its view that that which is in plain view is not private, and that even if issues were to be found in these searches, error should be excused on the basis of the police’s good faith.

Just weeks ago the Supreme Judicial Court outlined constitutional parameters of static camera recordings of vehicles permanently placed at the ends of bridges linking the main land of Massachusetts with Cape Cod.   Following an extensive review of the foundational ideas that support the law of searches and privacy, and after concluding that the camera surveillance in issue could be a search, the court found no constitutional violation as the car in question could be seen without technology and any intrusion was of limited duration.   Chief Justice Gant wrote separately in concurrence, suggesting that the course going forward might be better served if authorizations based on reasonable suspicion and subsequent probable cause were obtained in advance of surveillance. 

Appellants/Defendants embrace McCarthy as pointing the way for a decision in their favor.  The state has tradition on its side: many considerations of poll cameras have found their use to be constitutionally innocuous, with only a few courts demanding that this form of surveillance  be cabinned by time limits.

Justlawful’s Observation.  The “in plain sight” argument offered by the state, if woodenly applied, could lead to results that would undermine Katz.  Moreover, the argument that recording shows only what a passerby might see becomes problematic if human rather than mechanical supervision were in issue.  Were a person to stand in observation of a residence without interruption, the homeowner or resident might well feel intruded upon, even if the onlooker could see only the exterior of the home, and might be justified in seeking injunctive relief to cause the behavior to cease.   

Briefs of the Parties

Commonwealth v. Mora – SJC-12890 Appellants’ Brief

Commonwealth v. Mora — Commonwealth’s Brief

Commonwealth v. Mora — Appellants’ Reply Brief

The McCarthy Decision

2020 04 16 Commonwealth v. McCarthy SJC-12750

For those fond of legal history, an 1890 Harvard Law Review article outlining Warren and Brandeis’ Views of Privacy

Warren and Brandeis, _The Right to Privacy_