Litigation Update: United States v. Moore-Bush

Is long-term police use of a surveillance camera targeted at a person’s home and curtilage a Fourth Amendment search?

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In 2017, ATF agents placed a surveillance camera on a pole across the street from Daphne Moore’s home in Massachusetts. They suspected Moore’s daughter of dealing drugs and guns.

They watched the house for eight months until they obtained enough evidence to get a warrant. The warrant led to a prosecution. Moore and her daughter moved to suppress the evidence. The district court granted this motion but the First Circuit later reversed.

Now, Moore and her daughter are asking the Supreme Court to decide “[w]hether long-term police use of a surveillance camera targeted at a person’s home and curtilage is a Fourth Amendment search.” A nearly identical certiorari petition arose from the Seventh Circuit a year ago but was denied. The Federalist Society covered that petition on a previous teleforum featuring a debate about whether the word “search” in the Fourth Amendment should be interpreted in accord with the reasonable-expectation-of-privacy test or in accord with the word’s plain meaning.

Join Institute for Justice Senior Attorney, Robert Frommer, for a litigation update on this interesting Fourth Amendment question and the petition before the Court. The Institute for Justice filed an amicus brief urging the court to grant the petition for certiorari.


Robert Frommer, Senior Attorney, Institute for Justice 

Moderator: Adam Griffin, Law Clerk, US District Courts


As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript



Jack Capizzi:  Welcome to today’s Federalist Society virtual event. Today, May 11, 2023, we are excited to present a litigation update in the case of United States v. Moore-Bush. My name is Jack Capizzi, and I’m an Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call.


      Today, we are delighted to be joined by Robert Frommer, a Senior Attorney for the Institute for Justice. And our moderator today is Adam Griffin, a law clerk for the U.S. District Courts and a member of our Property Rights Practice Group Executive Committee.


      After our speakers have given their remarks, we will turn to you, the audience, for any questions you might have. If you have a question at any point during the opening remarks, please type it into the Q&A feature at the bottom of your screen, and we will handle questions as we can towards the end of today’s program. With that, thank you all for being with us. Adam, over to you.


Adam Griffin:  Thanks, Jack. Thank you to The Federalist Society and to everyone for being on the call today. I’m first going to introduce our speaker, Robert Frommer, who’s a Senior Attorney at the Institute for Justice and, importantly, is the leader of IJ’s project on the Fourth Amendment. In his practice at the Institute for Justice, Rob is focused on economic liberty -- defending economic liberty for street vendors, ending civil asset forfeiture abuse, and defending the commercial speech First Amendment rights of individuals and businesses.


      For this case, he authored the amicus brief—IJ’s amicus brief—urging the Supreme Court to grant certiorari in the case of United States v. Moore-Bush. Moore-Bush asked the Court to decide whether -- when officers put a camera on a pole that is watching Miss Moore-Bush’s house for eight months, continuously, to accumulate evidence to get a warrant, whether that amounts to a search under the Fourth Amendment. This petition is part of a long-running circuit split on this exact question.


      I’ll now turn it over to Mr. Frommer to discuss the importance of this case and IJ’s amicus brief. Mr. Frommer, the floor is yours. Thank you.


Robert Frommer:  Thank you so much, Adam. And thank you for having me here today. As Adam said, I’m Robert Frommer. I’m a Senior Attorney at the Institute for Justice, and I run IJ’s project on the Fourth Amendment, and we’re profoundly interested in issues like the camera issue here.


      I’d say that it’s important to recognize that technology has radically changed the face of policing. Innovations in cameras and wireless technology, in particular, allows for the cheap and easy deployment of surveillance systems by governments. And that can include surveillance systems that are pointed at private persons and residences. And as Adam pointed out, the fundamental issue in this case is whether the Fourth Amendment has anything at all to say about that or whether, instead, governments can conduct this kind of prolonged video surveillance on whomever they want without getting a warrant or anyone’s permission.


      Now, it's important to understand the facts of this case. I think that helps explain the broader issues here. So way back in January 2017, the Alcohol, Tobacco, Firearms—the federal agency—they began investigating a woman named Nia Moore-Bush and her husband. At first, they thought they were selling guns illegally. Then they started suspecting them of selling some drugs. 


      So about a month into the investigation, Moore-Bush and her -- Moore-Bush moves in with her mother, Daphne Moore, and Daphne lived in a single-family home in a quiet residential neighborhood in Springfield, Massachusetts. Now, the ATF wanted to surveil Daphne’s house to confirm agents’ suspicions about this drug dealing and about Nia, but the house was—and this from an opinion—located on a quiet residential street where physical surveillance was difficult to conduct without detection, so it’d be hard to have a stakeout there. But the ATF was not deterred.


      In May of 2017, the agents surreptitiously installed a digital video camera near the top of a utility pole across the street from Daphne’s house. And that camera was hidden out of sight, so no one could see it. Now, importantly, the government never asked, seeked, or obtained a warrant to install this camera—it just did that on its own say so. And after it was installed, the ATF agents could operate the camera remotely. They could watch it in a  livestream. They could pan in, zoom, tilt, and as a result, this camera was really, really accurate. It could accurately capture facial expressions, details on clothing, small objects in a person's hand, even keys or a cigarette, and even the license plates and numbers of cars that would come in and out of the driveway.


      Now, this camera operated day and night, 24 hours a day, and all of this footage was recorded, digitally stored, and available for agents to look at afterward. And this kept going on for eight months—this camera was constantly recording for eight months. And as a result, it gave the police a comprehensive record of every time anyone ever entered or exited Daphne’s home, as well as numerous other details about what was going on at the home.


      Now, fast forward almost a year later. There’s a grand jury, and it indicts Daphne, the mother, on drug charges—namely, distribution and possession with intent to distribute heroin, cocaine, and other things. They also charged Nia, as well, during this. And now, both Daphne and Nia, the daughter, they file a motion to suppress evidence at the district court—specifically, the evidence that was obtained from the pole camera. And what they said is, essentially, the issue that’s in the case here, which is -- they said that the prolonged covert use of a hidden pole camera to spy on or record the activities associated with a private home—namely, their home—was a search, and as such, the government should’ve had to have gotten a warrant.


      What happened is that, actually, the district court initially agreed. It’s noted that the First Circuit—which includes Massachusetts—had a case from 2009 called Bucci that had said that pole cameras were not a search. But the district court reasoned, “Well, to be honest, there’s been a lot of distance between 2009 and now, namely, the Supreme Court’s decision -- United States Supreme Court decision in United States v. Jones.” That is the GPS tracking case where it said, “Attaching a GPS tracker to someone’s car was a search.”


      And probably even more importantly, it said also there’s that decision in what’s known as Carpenter, which said that warrantless access of someone’s cell site location information, which would let you follow where they went, that was a search. And it said, “Based on those two decisions, this Bucci decision from 2009 doesn’t seem supportable anymore.” So the court said, “Yeah. This prolonged kind of surveillance was a search.” The government didn’t get a warrant, and the government waived any argument that it had a good faith -- that it qualified for what’s known as a good faith exception, that it could have relied on Bucci to do this. So it said, “Nope. Evidence gets tossed.” 


      So next thing you know, the government appeals this—as you would expect—to the First Circuit, and when it gets to a panel— it initially goes to a three-judge panel—the three-judge panel just, sort of, slams the door shut on what the district court said. It said Bucci was not undercut by Jones and Carpenter. It said that it viewed that case as being dispositive on the legal principle that “an individual does not have an expectation of privacy in items or places he exposes to the public.” Now, that was two of the judges. A third judge, Judge Barron, he concurred in the judgment but said, “We really should take this en banc to decide if Bucci is still good law in light of Jones and Carpenter.” Well, that’s what happened.


      There’s oral argument and silence for over a year when the decision finally comes out. Now, it’s important to recognize there are six judges on this en banc at the First Circuit. When this en banc decision comes out, it’s split 3-3, which means that Bucci survives. And the decision itself really just has this short two-sentence summary opinion reversing the district court. But then, when you get underneath that short summary, you see that there’s a huge fight brewing.


      Now, remember, there are six judges. On one side were the two judges on the panel decision -- there are three judges there, but that included the people in the majority of the panel decision. And that side said, “No. No. This isn’t a Fourth Amendment search at all. After all, Daphne Moore’s house was exposed to public view, and based on Supreme Court precedent—unreasonable expectation of privacy—that meant that she had no reasonable expectation of privacy against even long-term pole camera surveillance.” It said, like I said, that it didn’t -- Jones and Carpenter didn’t cast doubt on that decision. And in particular, those three judges viewed the privacy interest in the long-term recording of your own home as being less than the privacy interest that was involved in Carpenter—the movement from place to place. They said that, in part, because neighbors could observe activity at the home. I mean, people could also observe you walking around during the day, but that was their decision.


      By contrast, the other three judges—which Judge Barron was one of—concluded -- wrote a 96-page of concurring opinion. And they said that, “No. No. No. No. No. Long-term pole camera surveillance is a search. It is absolutely a search.” They looked at Carpenter, and they saw -- they really viewed it as saying that when one reasonably leaves one’s home, you aren’t expecting a perfect form of surveillance to follow you. And they said that same principle applied when you’re at your home, that there isn’t going to be this perfect system of surveillance that’s going to capture everything about your home. And they said that -- and they recognized that, in the past, you could do a stakeout—a human stakeout. Here, as we pointed out, that wouldn’t have been really viable—and human stakeouts didn’t require warrants. But prior to the digital age, as this case shows, that would’ve been pretty much impossible to literally have done that.


      So instead, this camera is this kind of long-term, unblinking surveillance of the home, and because it’s so comprehensive, it runs right into the concerns that Justice Sotomayor raised in Jones and which were really at bear in Carpenter, which is this kind of long-term surveillance can reveal deeply personal information about a person’s life, including their familial, political, professional, sexual relations. And so because it’s so revealing, the three-judge concurrence said, “No. This is a search.” It’s a search and that the government violated Daphne Moore’s reasonable expectation of privacy. But even despite that, it said, “We’re still going to allow the evidence in because when the officers put the -- when ATF put the camera up, they thought Bucci was still good law, and so we’re going to say that the good faith exception applied,” reversing the district court at that point.


      So now this case -- and so after that happened, Moore went for cert—has asked for cert. The government took several months in responding to this, and I think that is a -- it shows the deep status of the split and the difficulty of explaining to the Supreme Court why review on this kind of matter is inappropriate. Because after all, the First Circuit wasn’t writing on a blank slate.


      The Moore case further sharpened a huge split of authority, as Adam mentioned, between both several federal appellate courts and also some state supreme courts. And again, that split exists because of the Supreme Court’s statements that the reasonable expectation of privacy doesn’t include things that you voluntarily expose to the public. So on the -- so the Seventh Circuit, in United States v. Tuggle, recently, reluctantly held that long-term video surveillance wasn’t a search. It was really wringing its hands in that opinion. You could almost feel it begging SCOTUS to take the case. Unfortunately, it didn’t.


      And then there was another decision from the Sixth Circuit—a case called United States v. Houston, from about seven years ago. ANd they said there was -- not a search because there’s no reasonable expectation of privacy in video footage that was ten weeks of coverage. And it said that because, in part, even though, like in the First Circuit case, the Sixth Circuit panel noted that a physical stakeout wouldn’t have been viable, it then went on to credulously state that the camera was -- didn’t impinge on reasonable expectation of privacy because—and I have to quote this—“the ATF theoretically could’ve staffed an agent disguised as a construction worker to sit atop the pole for ten weeks.” So you got some severe manipulations of reality in order to say that this is perfectly fine.


      Now, on the other side of the split, saying that this kind of prolonged surveillance is a search, we have a Fifth Circuit case, all the way back from 1987, where it held that nearly two months of pole-camera surveillance—pretty much like this, in this case—was a search. And it literally noted that the fact that somebody could walk by your house and get a fleeting glimpse is different than the kind of comprehensive surveillance that these cameras allow. And it went on to warn that this kind of indiscriminate video surveillance, if it was left unchecked, would raise the specter of the Orwellian state.


      Now fast forward 30 years. State v. Jones from the South Dakota Supreme Court, it says the same thing. It distinguishes those REP cases involving flyovers and -- from saying that there’s no reasonable expectation of privacy. And again, it says that this kind of long-term monitoring is qualitatively different. And it, too, noted that if this isn’t checked, it raises the specter of an Orwellian state and unlocks the gate to a true surveillance society.


      And just a couple years ago, in People v Tafoya, the Colorado Supreme Court also said that this kind of long-term monitoring was a search. And it, noting the other decisions, said that this surveillance involved a degree of intrusion that a reasonable person wouldn’t have anticipated. In other words, you might anticipate somebody walking by and getting a fleeting glimpse or even a nosey neighbor, but you don’t expect -- nobody expects a camera trained on their property for months on end.


      Now, there’s a split here, and sometimes splits are about things that are academic—technically interesting but don’t have that much implication on the real world. This is not one of those cases. This is a hugely important issue because the split turns on whether long-term surveillance is a search for Fourth Amendment purposes.


      Now you got to remember something here. Something being a search or a seizure is what gets you in the Fourth Amendment door. It's what starts triggering Fourth Amendment scrutiny. So if long-term camera surveillance isn’t considered a search, then it’s not governed by the Fourth Amendment at all. What that means is that not only don’t the police need to get a warrant, they don’t even need to have any suspicion. They can just put the camera up because, after all, it doesn't implicate any of your Fourth Amendment rights.


      Imagine if the government said, “Okay. We’re going to put a bunch of these cameras up around different residences, and they’re going to look at people’s residences, and they’re also going to look at the public street. And then we’re going to connect them together so that they can track you from one place to the next to the next to the next to the next. Not just your home but everywhere you go. That’s quite possible. There’s technology out there right now that’s been installed in numerous cities that allows for that kind of monitoring. If this kind of video -- after all, in those situations, you’re out and about in the public. You left your house. You’re moving around. So if the idea that this gets no Fourth -- you get not Fourth Amendment protections, that means the government can set up this kind of system with really no check whatsoever.


      Like I said, this isn’t an abstract problem. There are numerous cities across the United States that started installing these network camera systems that allow both the monitoring of people’s private residences but also where they go. And they’re networked together so that they carry comprehensive itinerary.


      In fact, in Baltimore, just recently, there was a case very similar to this. It’s not a pole camera. It’s a little bit higher in the sky. It was a drone, and the drone was flying over Baltimore and for several hours a day. And what it could do is it could pinpoint individuals, and then it could track where those people went. And the program got shut down, but the Fourth Circuit went -- it went en banc at the Fourth Circuit, and in a very tight decision, the Fourth Circuit said that that kind of drone, eye-in-the-sky program, that could create that kind of comprehensive picture of your comings and goings, was a search that violated the Fourth Amendment.


      So this is a huge issue. This case shows the shape of things to come if the question fundamentally is, “Are we going to allow governments to install these kinds of surveillance systems absent any kind of judicial scrutiny?” or whether we’re going to say, “No. The Fourth Amendment applies here. And maybe these are allowable in certain situations, but we have the control of the courts running it, making sure that there’s an adequate evidentiary basis to put in place.” Because after all, it is intrusive.


      Now, you’ve heard me say all of these -- this huge controversy that’s going on—this huge split -- and the question is, why is this split in place? And it really comes down to the Reasonable Expectation of Privacy Test and how it has failed. Now, the Reasonable Expectation of Privacy Test was developed in a case called Katz. And there, someone was using a phone booth to make a call, and the Supreme Court -- and the police intercepted it. And what the Supreme Court said is that even though the booth wasn’t Katz’s, the government had violated Katz’s reasonable expectation of privacy because he expected it to be private.


      And so, what you need in order to get Fourth Amendment protection under the reasonable expectation of privacy framework is you need two things. One, you need to subjectively expect a place to be private, and you need to show that you expected that. But probably, the part -- the second part is the part that causes the most mischief. The court has to decide that that -- your subjective expectation of privacy is one that society would deem to be reasonable. And the problem with that is that what courts have repeatedly said is that, “Well, whenever you expose anything to the public, you no longer have any sort of -- there’s no socially expectation that that’s going to be held private or that you’re going to have Fourth Amendment protection.


      Now, at first, that principle led to only minimal observations that were out in public places, like I’d look at your -- you’re driving down the street, and I look at your license plate, and that’s technically -- while the police are looking at you, that’s something that you’ve definitely exposed to the public, so that’s not a search under the REP formula. But as the -- especially as the word drugs started raging, that narrow principle started expanding.


      And as -- it began to get applied to more and more police surveillance, even things like planes—police flying planes over people’s property in order to look down and see if they’re doing anything untoward. And now it’s gone even beyond that. At least with a flyover, it’s just a few seconds. Here, it’s literal, constant monitoring of one’s home, with those courts saying and many circuits saying, “Police can do that whenever or however they want. They can do it to whomever they want, and there’s nothing the Fourth Amendment says about that.” 


      So it’s important -- this pole camera issue is an important issue in its own right, but it’s also important because it shows the fundamental problems with the reasonable-expectation-of-privacy test. It is a fundamentally circular test that puts judges in the place of artificially constraining the reach of our constitutional rights. And the reason for that is by having judges at the very beginning decide what society deems reasonable, it turns them into little more than philosopher kings. And it artificially kicks certain things out of the Fourth Amendment bucket altogether.


      Now, there’s a far simpler approach than REP. REP’s been around for 55 years—56 years now—and it’s time to put it -- it’s time to retire it because there’s a better way forward. And that’s what we call something -- the ordinary-meaning test. And this is far simpler. It’s far more faithful, both to the Constitution’s text and to the original understanding of the framers.


      Now, just think about the term, the Fourth Amendment. It says you can’t suffer unreasonable searches or seizures. Well, what does search mean? Not unreasonable expectation of privacy. Nobody in the 1780s and 1790s said, “Oh, search means when the government violates a reasonable expectation of privacy that society deems reasonable.” No. They just used the basic dictionary definition of the term search, which means it’s a purpose -- a purposeful investigative act, to look through for the purpose of finding something, to explore, to examine by inspection.


      So what that does is by simply saying a government conducts a search whenever officers undertake a purposeful investigative act with respect to your person or property, the ordinary-meaning test both is consistent with what the framers had envisioned—that’s why they used the term search, plain word search—and it also keeps things simple. This case is a simple case under the ordinary-meaning test. In this case, what’d the government do? It installed a camera on a pole, so it could monitor Daphne’s house and her comings and goings for months. It took a purposeful investigative act towards Daphne and her house. That’s a search. See how simple that is. Don’t have to get into anything about -- and a lot of these splits -- a lot of the cases that look at the reasonable expectation of privacy framework, they start looking at these technical details, which really are distinctions without a difference. 


      They start deciding like, “Oh, was there a fence? How tall was the fence? Were there gaps between the fence?” As if our constitutional rights rise and fall about what the local zoning code allows and what our budget can afford. No. In this situation, if you just say, “Look, the government purposefully installed a camera, so it could find out information,” that’s a search. And that keeps things simple and doesn’t ask judges to ponder whether -- and turn judges into philosopher kings. It just asks them to look at a simple, historical fact, not make value judgments.


      And of course, you can see just by keeping things simple, this ordinary-meaning test is a much better way of moving forward and would hold the government to -- its feet to -- the government’s feet to the fire, in this case and other cases like it, because it provides benefits over both the existing tests—the trespass test and the Reasonable Expectation of Privacy Test.


      First, the ordinary-meaning test keeps all the same protections that we currently have and then some. Every search that would be -- every search that is a search due to the trespass test or the Reasonable Expectation of Privacy Test would also be deemed a search under the ordinary-meaning test because, again, in all those situations, the government took a purposeful investigative act. And it gets rid of these artificial constraints that create loopholes for the government to exploit. Like with the trespass test—what if we don’t install the GPS tracker on you, but we just keep a satellite monitor on you? Or the Reasonable Expectation of Privacy Test, like we’re talking here: “Oh, you have a -- your home is on a busy street, a less busy street.” Rather than having judges trying to chop that up and decide what your rights are, it just says, “Did the government try to investigate you? Yeah? Okay. Let’s move on.”


      And that means that the law is objective and more predictable by focusing on these simple historical facts. Instead of forcing judges to create these value judgments, everybody will understand exactly what is a search and what isn’t. And importantly, it particularly -- given the technological change that I talked about at the beginning of this talk, the Reasonable Expectation of Privacy Test is wholly inadequate compared to the ordinary-meaning test because ordinary-meaning test is technology neutral. It doesn’t matter whether it’s a walkie-talkie or a super satellite or whatever. It doesn’t matter the technology. If the government investigates you, it committed a search, whereas, with the Reasonable Expectation of Privacy Test, the Court has said that once technology becomes commonly available, you lose any reasonable expectation of privacy that the government won’t be using against you. And I tell you what, there are a lot of cameras out there.


      I talked to somebody just yesterday who owns -- he’s a hunter, and he owns like 20 cameras. These are commonplace, including cameras that can do this wireless technology. So if you really keep going down the REP road, at some point, the Court’s going to have to say, “Well, these are commonplace, and therefore you don’t have an expectation of privacy against being surveyed by a wireless camera.”


Adam Griffin:  Rob, while I have you on a pause, let me just say to our audience, if you have any questions, please type them into the Q&A or chat function at the bottom. I should’ve said that at the beginning, and I apologize. But if anybody has any questions, there’s a Q&A function at the bottom of the screen. I’ll turn it back over to you, Rob.


Robert Frommer:  Okay, and I don’t have much more on this. I think that the -- but I’d say that this is -- the order and meaning test would be superior because, as we see through this discussion here, by just keeping the search question simple—just asking if the government purposely investigated you—it brings more things into the Fourth Amendment bucket, and that’s hugely important. Like I was saying before, if things don’t get into the Fourth Amendment bucket, there’s no protections against them. If the Supreme Court said that pole camera monitoring was fine -- imagine it -- anticipate a camera across the street to come because, at that point, the police can do whatever they want.


      By keeping the search test simple, we bring more things into the Fourth Amendment bucket, and then courts can decide what is constitutionally reasonable. Maybe it requires a warrant. Maybe in some situations, things don’t require a warrant. But it allows that kind of contouring and oversight over police activities that’s absolutely necessary in order to protect our right to be secure in our persons and property. And with that, I’ll leave it there.


Adam Griffin:  Thanks, Rob. That was excellent. I did have a question to start us off. So you say why it’s a search—that a search shouldn’t be reasonable expectation. We should have the ordinary-meaning test and purposeful investigative act. I don’t know if this is outside -- this may be outside the bounds of the cert petition, but why would it be -- it seems like you’re suggesting this would then be unreasonable, that police can’t do this. Right? So you can’t have an unreasonable search. You’re saying under the ordinary-meaning test that did a search, why is it unreasonable?


Robert Frommer: And I think for that, what you look at—and it is a little bit outside because -- and this is an issue also because everything gets pushed into the word “search” and whether a search occurred. We never get to that backend. This would be -- this situation, I believe, would be deemed unreasonable for the reason -- you go back to the time of the framing of the Fourth Amendment. There’s actually great scholarship that says unreasonable in the words of the Fourth Amendment meant against the reason of the common law. And so, you have to ask yourself --  if you have a historical analogue, that’s great, but if you don’t, you basically have to ask yourself, “Would people at the time of the framing deem this kind of activity to be against the common law—unreasonable under the common law?” And I think to ask that question’s almost to answer it. I think anyone that -- if you imagine channeling James Madison or Thomas Jefferson or one of the framers, and saying, “What do you think? Would it be okay if the government just installed a special viewing device that could watch you for months?” They would say, “No. No. The government -- they need some permission before they can do that.” I think that’s pretty common.


      Hot air balloons, for instance -- you think about weird things when you do Fourth Amendment work. Hot air balloons came around right around the 1780s—that’s when they first got invented. And so I would love if somebody could’ve asked one of the framers what they would’ve felt if the government had flown a hot air balloon over their property to see what was going on there. I have a pretty strong feeling that they would’ve all been aghast by that. But by getting us in -- but sorry. I’m going a long way, but by getting us in here, I think what we can do is say, “Is this consistent with the kind of security of our persons and property that they expect at the common law and they want to provide moving forward?” And if the answer is, “Yes,” then you can do it without a warrant, and if it’s, “No,” then you can’t do it without a warrant. And I think that’s -- again, it involves value judgments, but at some point—and some kind of historical analysis -- but it’s not about whether the thing gets any protection whatsoever. It’s just about how do we contour? How do we oversee the government or to ensure that people’s rights to be secure are maintained?


Adam Griffin:  Right. Thank you. So I guess that’s an ordinary-public-meaning test for search, and then it’s sort of a history and tradition from reasonable -- particularly, the reason of the common law at the time. So 1791, what were the common law protections, and then is it analogous to that?


Robert Frommer:  Exactly. And of course, not in every situation are you going to have a nice, tight historical analog, but I think you have to -- but constitutions require us to put ourselves in those people’s shoes, and I think that is a task that the Court can do and should do.


Adam Griffin:  So we have some questions in the chat box. So this is kind of a direct one, but why is it -- and this kind of goes to a follow-up question that I had. Rod Candelaria (sp) says, “‘Houses’, as used in the Fourth Amendment, must mean the residential premises, no?”


Robert Frommer:  It does.


Adam Griffin:  So this is a search of a house, right? I mean, why -- what’s the reason that it wouldn’t be a search of a house under the Fourth Amendment?


Robert Frommer:  I’m looking outside my house, and I see somebody looking over at my house. They can see my house right now. I can see them. They’re looking at my house. I’ve exposed my house to the public, so under reasonable expectation of privacy framework, I’ve exposed my house to the public. After all, that guy right there—okay, stop looking—can see my house, and therefore, that means the police can put up a pole camera for my house to monitor my house. The fact that it’s textually -- houses are textually enumerated in the Fourth Amendment doesn’t really change anything here because it all turns on this fantasy that by [inaudible 37:002] I guess, not walling oneself off in a dome and hiding from the world, you’ve consented to everybody and anybody monitoring you as long as they want.


Adam Griffin:  Because for [inaudible 37:16] you readdress -- can you hear me? Would you readdress how this would affect the growing use by governments to have high-definition cameras, including license plate and face identification software, in public locations for public safety? So public location, you got a high-definition camera that scans license plate, does facial identification software, and those are in place for public safety. How would your theory of the Fourth Amendment -- how would the decision on this case affect that growing use of governments -- use of those cameras by government?


Robert Frommer:  Well, it would bring those cameras inside—as I’ve been saying—the Fourth Amendment bucket. It would say that the camera is a -- it’s a purposeful, investigative act. Right? It’s sitting there. It’s meant to capture people and their cars and their movement, and it’s doing that in order to uncover information. So, “Okay, we’re in a search.” And I think, at that point, you get into -- so now -- and I’m glad we talked about reasonableness just a minute ago because that’s where this goes. It goes directly into reasonableness and what would be reasonable.


      Now with common law, like way back when, you could have an individual police officer on a corner, right? I mean, that’s pretty commonplace. So an individual camera that is just monitoring a static public location—like an intersection or something—is akin to an officer. And even though it might be technically a search, it’s not one that is -- that it’s really unreasonable, and so you could probably do that.


      The issue starts becoming -- when you take those cameras and you have things like license plate, face identification, and you start networking them, and you start recording and creating a database—a comprehensive log that can be -- where you can follow people—that is beyond the kin of any individual officer. That’s not an individual officer sitting on a corner. That is something that they could not do—that no ordinary person or no ordinary individual officer could do. And it also greatly—as we were talking about—exposes your comings and goings, where you go, who you’re interacting with. And that is very threatening to one’s security in their persons and property. 


      So I would say that kind of camera system has huge constitutional problems that could potentially be ameliorated through the proper use of -- proper control and use of warrants. But if these cameras are held not to even be a search, then these panopticons—for lack of a better word—will move forward, absent any constitutional scrutiny whatsoever.


Adam Griffin:  So Rod Candelaria (sp) says—and I think this all private activity, but—“A hunter could -- could a hunter search a property for deer by means of a battery of cameras installed on the acreage?”


Robert Frommer:  Oh, okay. Since it’s a hypo, I’m going to assume a few things for the purposes of hypo. I’m going to assume that the hunter -- it’s his own property. And of course, if it’s his own property, he can use those cameras. Of course, even it’s someone else’s property, if he obtains and gets permission from the property owner -- let’s say -- my father-in-law used to have a cousin who would come over and hunt every once in a while—I live on a lot of land—and he would ask to install cameras to see what was going around—to see what -- if there’s anything worth hunting—and that was perfectly fine. The difference is, is when the government starts doing this.


      We have cases in Tennessee and Pennsylvania where the government came into people’s property and installed a camera on their property, not out across the street—like in this case—but literally on their property, in order to try to uncover wrongdoing or whatever. So that’s a huge issue that we’re litigating right now in a number of states, but it’s all of the same piece. Like, what is the boundaries of your right to be secure in your persons or your property? And that’s what we’re focused on.


Adam Griffin:  So I’m reading the next question. The bad precedent that the government is relying on to justify the search. So I guess there’s some prior Supreme Court precedent, some prior lower court precedent, circuit precedent that they’re relying on to justify the search. If the Supreme Court were to grant cert and rule that Moore-Bush’s search were unconstitutional, would the person from the bad precedent—from the precedent that gets overturned -- would they have any recourse, such as coram nobis, which I think is a Latin term applied in common law to call the Court’s attention to facts that would have changed the judgment but were outside the record and unknown the Court at the time of judgment. So I’m actually wondering if all cases that relied on the bad precedent, if that bad precedent was overturned, could they go back and say -- would there be any retroactive protection for people who lost under the old law?


Robert Frommer:  Probably not. It depends on the precise legal issue. And I’m very impressed, by the way, with your recitation of coram nobis. I just remember that we had some case about it a few years ago. But other than that, it’s just a funny-sounding term.


Adam Griffin:  Well, I just looked it up online, so not --


Robert Frommer:  Oh --


Adam Griffin:  The glories of the internet.


Robert Frommer:  You’re cheating. FedSoc audience, recognize that. No. I don’t think so because I think what they would say here -- I mean, unless you get some kind of sweeping opinion, which I don’t -- as much as I’m saying that the government -- or that the Court should junk reasonable expectation of privacy—the entire line of REP cases or at least the ones where they say there is no search—and replace them, I think what’s more likely to happen in this particular case, if cert is granted, is that the Court will -- it’ll address this particular issue—the long-term pole camera issue. It might say things that have implications on some of the cases that the lower courts have used in saying there was no search in these pole-camera cases, but I don’t think it’s going to -- I don’t think -- for instance, it’s not going to, like, say, a flyover case—what is that? California v. Ciraolo. It’s not going to say that is no longer good law. It’s not going to clean house like that. But if you have a pole-camera case, then maybe it’s quite possible that, if you’re still in the system, you might be able to get it changed, depending on how the Court comes out. But upstream precedent -- I’m less optimistic for you, but you go, Sean.


Adam Griffin:  So I’m not sure if it would be a sea change in the law, but if you’re still in the system with a pole-camera search, you might be able to get relief, but it probably won’t apply retroactively -- maybe. But to people who were previously arrested based on pole-camera searches and they’ve already have a conviction and judgment, they probably won’t be able to get relief from this opinion.


Robert Frommer:  Probably.


Adam Griffin:  If they were to take --




Robert Frommer:  Probably. I deal with the Fourth Amendment stuff. I don’t know how all the retroactive application, the Teague v Lane, and all that stuff. I left that all behind in law school.


Adam Griffin:  [Laughter] Understandable. So I had a question about the -- if you had a person up in the pole, sitting there for ten weeks—an ATF agent sitting there -- brought to mind the Alito tiny constable, giant carriage -- like, if you had a tiny constable fitting under a giant carriage, that the constable could fit in. If they -- could the police officers do that, though? I mean, could the police -- would that be a violation? If it weren’t technology, it were just an ATF agent sitting there -- or even maybe a little bit more realistic. You have an eight-week/ten-week stakeout. The police, maybe, aren’t there 24/7, but they’re there. They go by the house regularly for eight months, collecting information on a stakeout. Would that be a search under the Fourth Amendment?


Robert Frommer:  Under current law, probably not.




Robert Frommer:  Under my order and meaning test, yes, it would be a search. Again, the work there -- and the advantage, I think, of the test is that the search question is easy. And what we then get into is the harder question of, “Well, what’s constitutionally reasonable, in that, what would be consistent with the common law?" And there, the Court would be able to -- and I think this is a feature, not a bug, that by doing this it gives the Court the ability of fine tuning what degree of oversight, what degree of permission is required before the government can engage in that particular activity?


      Right now, with both the trespass and the REP frameworks that we have in place, we’ve ended up in a situation where our reasonableness analysis is just -- it’s really become rather paltry. It really is just a warrant preference model, which is, “If it’s a search, you got to get a warrant,” which -- and I think, generally, that’s good, but I think there is a more nuanced analysis that can take place that should actually be looking at the scope of the intrusion—the degree to which it violates security—and then looking back at those common law historical analogs in order to determine the proper level of oversight in order to maintain people’s security. I’m not saying that’s an easy thing to do, but I think it’s a far better system than what we have now, which kicks most things out the door before -- out of the Fourth Amendment door before it even gets in.


Adam Griffin:  Makes good sense. So you’re saying that right now, all the weight’s on search. If something’s a search, it’s a -- Reasonable Expectation of Privacy Test is search, and so you should just distinctly look at, is it a search and then is it reasonable.


Robert Frommer:  Exactly. Modern Fourth Amendment jurisprudence has jammed everything into that first search question, and as a result, the reasonableness analysis is impoverished, and I think we can fix that.


Adam Griffin:  Well, that was the end of our questions. Do you have any closing remarks? And then we can wrap up unless anybody else has other questions.


Robert Frommer:  No. Thank you for having me here. This is an incredibly important case, and this is -- we are on -- I think everybody can recognize we are on a bit of a technological -- we’re on the hockey stick of growth. Technological growth is happening, and it’s happening at an increasing rate. The current tests that we have in place for determining when the government is called to [inaudible 49:12] the Fourth Amendment are antiquated and outdated. And this case -- the Court should take this case in order to protect our rights against long-term video monitoring. But it should also use this case to start blazing a path towards a new search -- test for what a search is, one that’s technologically neutral and that puts the courts back in the game of overseeing police conduct.


Adam Griffin:  Thank you, Mr. Frommer, and thank you to our audience for being here. Sorry. We got another question, but they were just saying, “Well done.” So I’m getting some congratulations. Now I’ll turn it back over to Jack. Thanks, everyone.


Jack Capizzi:  Well, thank you, Adam, especially for being our moderator today. And thank you as well to Robert for his valuable time and expertise. I want to, of course, thank all of our attendees for joining. As always, we do welcome listener feedback, if you’d like to submit any, by email at [email protected]. Please keep an eye on our website and your emails for announcements about future webinars. We’ll be having quite a few coming out as the decisions are released in the next few weeks. With that, thank you all for joining us today. We are adjourned.