Breaking open a case can be hard work for the police. If they want to prove somebody is committing a crime in their home, they must do a stakeout — or perhaps several — to build the probable cause to intrude further. So in 2017, federal agents skipped the hassle.
The Bureau of Alcohol, Tobacco, Firearms and Explosives suspected drug activity at Daphne Moore’s home in Springfield, Mass., but agents lacked sufficient evidence for a raid. Instead of watching from a parked vehicle to strengthen their case, they snuck into her quiet, residential neighborhood and mounted a spy camera on a utility pole across the street from their target.
Then they recorded everything: comings and goings, interactions at Moore’s doorway, even the inside of the garage when it was open. The surveillance continued not just for a few hours but 24/7 for eight months. During this span, the agents never cleared their snooping with a judge, as the Fourth Amendment ordinarily would require.
The constitutional runaround would have been impossible for most of U.S. history. Officers doing surveillance from public vantage points had to wait and watch. But advancing technology provides new alternatives — even while the Fourth Amendment, which prohibits “unreasonable searches and seizures,” stays the same.
Moore and her adult daughter, who eventually faced charges, cited the Fourth Amendment and asked for suppression of evidence. Their judge agreed, but the 1st U.S. Circuit Court of Appeals reversed the decision in 2022. The opinion, if it stands, would keep the Fourth Amendment on a trajectory toward irrelevance.
The appellate court held that reasonable people living in modern society would not expect privacy in the areas around their homes. So federal agents needed no warrant. The Fourth Amendment did not apply because no “search” occurred.
Pointing a camera at someone’s house and watching for 5,000 hours without blinking counts the same as strolling past on a morning walk.
Forcing people to prove an “expectation of privacy” before they can enjoy the Fourth Amendment’s protections has increasingly undermined civil rights since the Supreme Court invented the standard in 1967 in a case about a covert listening device on a phone booth. The problem is that privacy expectations are a moving target that shrinks as technology expands.
Homeowners standing alone in their yards would have expected protection from government snooping through the 18th and 19th centuries. They lacked indoor plumbing, but they also lacked digital cameras sending live feeds to police headquarters.
Law enforcement has come a long way since then.
New York City innovated first with police wiretapping in 1895. By 1950 informants were wearing hidden microphones. Next came aerial surveillance, triggering Supreme Court opinions greenlighting airplane and helicopter flyovers in California and Florida.
Other cases have dealt with secret transmitters on trucks in Minnesota and New Mexico, thermal imaging of a house in Oregon, and GPS tracking in North Carolina and Washington, D.C. The question in these cases was whether Fourth Amendment “searches” occurred. While the answer was “yes” in some cases, others went the other way on the theory that the surveillance methods used were commonplace.
That’s a worrying standard, especially as technology advances. Code enforcers now use satellite imagery to issue citations in Humboldt County, Calif. Some cities, including Houston, require businesses to record their customers and hand video files to the police upon request. And Amazon gives Ring recordings to investigators without warrants.
Drones, facial recognition and other biometric tools could expand the government’s reach further. And the Supreme Court, in turn, could hold that citizens expect less and less privacy. The incredibly shrinking Fourth Amendment could disappear altogether.
Moore and her daughter have petitioned the Supreme Court to consider their motion to suppress. Our public interest law firm, the Institute for Justice, filed a friend-of-the-court brief in the case, arguing for a return to the ordinary definition of “search.” If officers have a target and hunt for evidence — especially over long periods — that’s a search by any standard.
The warrantless surveillance outside Moore’s home may or may not have been reasonable, but that’s a separate question. The courts owe it to citizens to provide an answer. The constitutional evasions must end.
