United States v. Moore-Bush

Court: U.S. Court of Appeals for the First Circuit

Date Filed: Feb. 11, 2021

Updates: On June 9, 2022, the U.S. Court of Appeals for the First Circuit, sitting en banc, divided 3-3 on the question whether the Fourth Amendment requires a warrant before the government engages in persistent, targeted camera surveillance of the home. The effect of the split disposition is to affirm the district court’s holding that a warrant was required in this case; the First Circuit was unanimous, though, in concluding that the defendant was not entitled to suppression of the evidence because the government had relied in good-faith on prior precedent holding that such surveillance is not a Fourth Amendment “search.” 

On Nov. 18, 2022, Moore petitioned the U.S. Supreme Court to hear the case. The Reporters Committee and 13 media organizations filed a friend-of-the-court brief in support of Moore’s petition on Dec. 21, 2022. The media coalition’s brief highlights the threat that targeted camera surveillance can pose to First Amendment freedoms, including the right to gather the news, and highlights its use in past leak hunts to ferret out reporters’ confidential sources.

Background: For about eight months in 2017, government officials monitored the outside of Daphne Moore’s Massachusetts home using a remote-control camera mounted to a nearby utility pole. The camera, which was used without a warrant, provided a continuous surveillance feed that could be searched, evaluated and analyzed from a distant office building. With help from the camera feed, Massachusetts law enforcement officials later arrested Moore and her daughter, Nia Moore-Bush, for allegedly being part of a drug trafficking ring.

Moore-Bush and Moore sought to suppress the pole camera evidence, arguing that the government’s use of the camera without first obtaining a warrant was a violation of the Fourth Amendment. In June 2019, a judge for the U.S. District Court for the District of Massachusetts ordered that the video records collected from the pole camera could not be used as evidence. The camera feed, he wrote, invaded the two defendants’ reasonable expectation of privacy under the Fourth Amendment.

The government appealed the decision, and a panel of judges on the U.S. Court of Appeals for the First Circuit overturned the district court’s ruling, holding that the camera’s use could never amount to a Fourth Amendment “search.” The full bench of the First Circuit then granted rehearing to reconsider whether 24/7 camera surveillance of a particular location is a Fourth Amendment search requiring a warrant in light of the Supreme Court’s 2018 decision in Carpenter v. United States, which held that the government’s seizure of more than a week’s worth of cell-site location information without a warrant violated the Fourth Amendment.

Our Position: The court should reject the First Circuit panel’s construction of the Fourth Amendment and affirm the decision of the district court.

• The Fourth Amendment must be rigorously applied when First Amendment rights, including the right to gather the news, are at stake.
• Persistent camera surveillance burdens First Amendment interests, including the integrity and confidentiality of the newsgathering process.
• The panel’s rule would permit the government to monitor the movements of journalists and sources without limit.

Quote: “It is difficult to overstate the value of the reporting that would be lost if journalists could not credibly promise their sources’ confidentiality. Such confidentiality is a critical component of the reporter-source relationship — a core journalistic practice and a necessary feature of investigative journalism, and that confidentiality is compromised when law enforcement can warrantlessly obtain information about journalists’ or sources’ whereabouts.”

Related: In 2017, the Reporters Committee filed a friend-of-the-court brief in Carpenter v. United States. The brief explained why location tracking implicates First Amendment values, including reporter-source confidentiality.