ACLU asks Supreme Court to rule in Massachusetts police surveillance case

Attorneys are asking the U.S. Supreme Court to take up a case involving the use of police surveillance cameras outside a Massachusetts woman's home.

The American Civil Liberties Union and the ACLU of Massachusetts filed a petition with the Supreme Court on Friday, citing the case of Daphne Moore, whose Springfield home was under police surveillance for eight months. Police placed a camera on a utility pole outside her home in 2017 during a federal investigation of a drug trafficking ring. Moore's daughter was charged with drug trafficking in 2017. A year later, Moore, then an assistant clerk magistrate Hampden Superior Court, was charged with money laundering, narcotics conspiracy and lying to federal authorities.

Her attorneys asked that the surveillance not be admitted as evidence because it was obtained without a warrant.

"This technology allows police to secretly watch, record and ultimately analyze the details of our privates lives," said Jessie Rossman, managing attorney at the ACLU of Massachusetts. "As the price of this technology continues to drop and as its usage continues to increase by law enforcement, the need for clarity from the Supreme Court about the kinds of constitutional protections under the Fourth Amendment are becoming increasingly urgent."

Lower court rulings have been split on the question of whether the footage from outside Moore's home constituted a search and required a warrant. Prosecutors argued that it is no different from other surveillance methods and the cameras only record what takes place outside a home, for which there is no expectation of privacy. An appeals court was deadlocked on the case and where to draw the line on surveillance.

Because the courts have been divided, the ACLU petition argues that the Supreme Court should take up this case and ultimately set guidelines about when the long-term use of surveillance cameras — so-called "pole surveillance" — requires a warrant.

"This Court’s intervention is necessary in light of the significant threat to Americans’ Fourth Amendment rights posed by the police practice in question," the petition reads. "And while it is clear that police use of pole cameras is proliferating, the full scope of the problem is impossible to ascertain. People who are surveilled but never charged, or against whom the government chooses not to use evidence derived from
the surveillance, will have neither notice nor recourse."

The petition cites a 2018 Supreme Court ruling that said people have a reasonable expectation of privacy while out in public and the government needs a warrant to track someone's cell phone location data.

Massachusetts' highest court ruled in 2020 that the long term use of pole surveillance by police violates the state constitution. But the court declined to decide the case on Fourth Amendment grounds, saying that the “status of pole camera surveillance ‘remains an open question’” under the Fourth Amendment of the U.S. Constitution.