Are pole cameras legal?

You may not always realize it, but one of the most important protections you have in America is a constitutional right to privacy. This means that the government cannot intrude on your home or take your personal belongings without good reason. The Fourth Amendment to the US Constitution and Article 14 of the Massachusetts Declaration of Rights forbids the government from conducting unreasonable searches and seizures and requires search warrants based on probable cause before any police search occurs.

In today’s technologically driven world the question of what counts as a search is often difficult and sometimes requires help from the courts. In an August 2020 case before Massachusetts’s highest court called Commonwealth v. Mora, justices took a look at the question of long-term surveillance using pole cameras and whether or not this could count as an unreasonable search.

What is a pole camera and why were they used in this case?

In November 2017 a confidential informant spoke to law enforcement and identified the defendant, Nelson Mora, as a large-scale drug dealer. An undercover police officer was sent to investigate Mora and able to make ten different transactions, obtaining oxycodone and fentanyl from him.

Shortly after the first purchase, officers began installing pole cameras or hidden video surveillance devices on public telephone and electrical poles aimed at the homes of other individuals suspected to be associated with Mora’s drug dealing activities.

These cameras provided views of the fronts of the houses, the sidewalks next to them, and the surrounding streets. They recorded activity 24 hours a day, 7 days a week and together captured over 200 days of footage. While the cameras were not equipped with night vision capabilities, they were able to zoom in and change their angles in real time. All the footage collected was stored on a State Police server and accessible to the investigators through a search bar function.

Without obtaining a search warrant for the cameras, the officers were able to collect footage leading to the arrest and filing of criminal charges against the suspected dealers.

How did the defense respond to what happened?

Defense lawyers for the accused argued that the pole camera footage that was collected was an unreasonable search in violation of the Fourth Amendment and Article 12. The defense team asked the lower court to suppress or throw out this evidence.

The lower court judge who heard these arguments ultimately decided that they would not suppress the evidence. This judge reasoned that the cameras did not violate the defendants’ reasonable expectation of privacy (right to privacy) they only captured footage that was publically available. The judge added that since the cameras were attached to fixed points on public telephone and electrical poles they were not tracking the accused through private spaces.

Disagreeing with the lower court judge’s decision, the defendants appealed to the Massachusetts Supreme Judicial Court.

What legal questions did the Supreme Court look at?

The Massachusetts Supreme Court analyzed the case by breaking down what happened into three different legal questions:

  • Should the pole camera footage be suppressed?
  • Did the accused have an expectation of privacy?
  • How targeted was the surveillance?

The Court began by considering two important theories about privacy in the legal sense:

  • Public view theory
  • Mosaic theory

The main idea behind the public view theory is that an individual does not have a reasonable expectation of privacy in items or places they exposes to the public. For example, if a person were walking down a busy public street, there would be no reasonable expectation of privacy if someone overheard something they said or stared at them for the way they were dressed.

Mosaic theory is a little bit different. Mosaic theory is the idea that the large scale and long-term collection of data or information about a person paints a bigger picture or “mosaic” about that person that could be considered a violation of a person’s privacy rights. While the government argued based on the public view theory that the pole cameras only relied on publically available information, the lawyers for the accused made the case using the mosaic theory that the camera footage created a bigger picture that infringed on the privacy rights of the defendants.

What was the final outcome of the case?

The Supreme Court ultimately sided with the accused, agreeing that the long-term pole camera surveillance of the homes was in fact a search. Police required probable cause to begin these searches.

One of the arguments that the government made was that the defendants did not have fencing or hedges around their house, meaning that what the cameras saw was in public view and therefore not private. The Court rejected this argument, saying that the constitutional principles behind privacy apply to everyone, regardless of the resources they have to physically protect their homes from government surveillance.

The Court went on to add that the home is an important protection guaranteed by the Fourth Amendment and Article 12. The Court compared the home to a castle, making the case that just because the outside of a home is in public view, does not mean that long-term 24/7 surveillance is not an intrusion of privacy. The court compared this kind of surveillance to a castle under siege, writing: Although its walls may never be breached, its inhabitants certainly could not call themselves secure.

Lastly, the Court concluded that the 24/7 targeting of the homes of the accused revealed personal information that in-person police investigation simply would not have had the time or resources to reveal. The footage showed how individual people looked and behaved, who they met with, and how they interacted with others.

How will Massachusetts law change thanks to this case?

The decision in this case is a victory for people who support strong privacy rights. New technologies raise important questions in the freedom versus security debate. In the long-term, police officers in Massachusetts will have to adjust their approach to their investigations, remembering that the right to privacy is a constitutional right that applies even when high-tech cameras are in use.



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