SPRINGFIELD — Before the trial gets underway for a mother and daughter accused of being part of a drug and weapons trafficking ring, a federal judge has already ruled that eight months worth of video surveillance of their East Forest Park home is inadmissible.
Specifically, Judge William G. Young ruled on June 4 that footage from a hidden camera across the street from the home of Daphne Moore and her daughter, Nia Moore-Bush, is a violation of 4th Amendment protections against unlawful searches by the government.
Andrew W. Lelling, U.S. attorney for Massachusetts, on June 6 filed an appeal of the decision with the U.S. Court of Appeals for the First Circuit.
The same day, lawyers for Daphne Moore filed a U.S. District Court motion to suppress all other evidence derived from that video surveillance, calling it “fruit of the poisonous tree.”
Young’s ruling is being hailed by the American Civil Liberties Union of Massachusetts for upholding privacy rights in the digital age.
Police have always had been empowered to conduct surveillance by having officers camped out to observe suspects, said William Newman, director of the Western Massachusetts office of the ACLU. But, he said, “Constant surveillance that can be electronically logged for who is coming or going and every person’s face is recorded and entered in a database basically forever is different.”
Nia Moore-Bush and her boyfriend were indicted in January 2018 on charges they were involved in a conspiracy to shuttle drugs and guns between Massachusetts and Vermont, and to launder money. The boyfriend, Dinelson Dinzey, pleaded guilty to unlawful weapons and drug trafficking charges in May. He is due to be sentenced in September.
Daphne Moore was arrested in December 2018 and charged with money laundering, narcotics conspiracy and lying to federal authorities. Since her indictment, she has been on unpaid leave from her job as an assistant clerk magistrate at Hampden Superior Court.
The arrests were the result of a lengthy investigation by federal law enforcement that culminated with a raid on Moore’s home at 120 Hadley St. on Jan. 12, 2018.
Law enforcement secretly mounted a video camera on a utility pole across the street from the residence some eight months prior to the raid. This would appear to coincide with a period just after Moore-Bush and Dinzey were arrested on drug trafficking charges following a state police traffic stop on Interstate 91 in Greenfield in May 2017.
As described in court documents, the camera provided a view of the front of the home, the driveway and the street out front. Footage was stored in a digital library that could be indexed and searched.
The camera recorded no audio — although court documents make reference to there also being a court-authorized wiretap — and could not see inside the windows of the home. But the camera could be remotely controlled to zoom in on the license plates of vehicles in front of the house.
And all that, according to Young, raises concerns regarding Moore and Moore-Bush’s constitutional right to privacy.
Young wrote that the camera “collected information that permitted the government to peer into Moore-Bush and Moore’s private lives and constitutionally protected associations in an objectively unreasonable manner.”
While there is nothing that would have prevented law enforcement from parking a surveillance van on the street and keeping notes of all who came and went, Young ruled the technology involved with the camera changes everything.
“Humans are imperfect note-takers and not all blessed with photographic memory,” he wrote. “The pole camera, however, captured every single second that passed over eight months in a digitally searchable form.”
Also, people host guests in their houses for any number of reasons, he said, and none of those reasons are necessarily any business of the government.
“The continuous video taken by the pole camera thus threatens to chill these religious, political and associational activities,” he said. “The surveillance here risks chilling some core First Amendment activities.”
The ruling cites two other cases, a 2009 ruling by the First Circuit Court of Appeals in United States v. Bucci, and the 2018 Supreme Court ruling in United States v. Carpenter.
In one case, police in 2005 monitored Sean Bucci, a suspected drug dealer from North Reading, with a pole camera similar to the one in this case. But that camera had a fixed view, could not zoom in, and could not be adjusted by remote control. Bucci appealed his conviction, but it was denied as the court ruled “an individual does not have an expectation of privacy in items or places he exposes to the public.”
In the other case, Timothy Carpenter appealed his conviction for armed robbery after police used cellphone towers to place him in the area of several robberies in Michigan and Ohio. The Supreme Court ruled 5-4 that the government could not use cell towers to track a person’s movements — even if the person ventured out in public — without first applying for a warrant.
The Carpenter decision established that people have a reasonable expectation of privacy when out in public, and that overrules the finding in Bucci. The two decisions are not reconcilable, Young wrote.
“Though Carpenter does not discuss pole cameras, its logic contradicts Bucci’s and requires this court to examine whether the government’s use of the pole camera constitutes a search,” he wrote.
Prosecutors in the Moore case filed a motion asking Young to reconsider the same day as his ruling. The motion, submitted by Assistant U.S. Attorney Amy Harman Burkart, argues that the video technology in this case is not unique or even substantially different from pole cameras that have been successfully used as evidence in dozens of other prosecutions.
“If the government had rented the home across the street from the defendants’ and rotated agents through to conduct live surveillance, they could have employed the same techniques where there was activity of investigative significance. They could also have turned on a video camera,” the motion reads.
Young denied the motion June 5, setting the stage for the U.S. attorney’s appeal.
Matthew Segal, legal director of the ACLU of Massachusetts, said the decision has serious implications for law enforcement surveillance operations.
“The district court correctly concluded that, if the government wants to undertake this intrusive, constant, and long-term surveillance, it should get a warrant,” he said.
On the issue that people have a reasonable expectation of privacy, even when they are outside of their house, Newman said Young also ruled correctly.
“The fact is people who walk outside their houses don’t waive all privacy rights,” he said. “We don’t have to be in our homes to have an expectation of privacy.