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ACLU asks Supreme Court to consider Springfield case challenging warrantless surveillance

A worker is harnessed at the top of a telephone pole.
Creative Commons
A worker is harnessed at the top of a telephone pole.

A 2017 federal investigation in Springfield, Massachusetts, involving drug and firearms crimes is at the center of an issue that could come before the U.S. Supreme Court. CommonWealth Magazine reporter Shira Schoenberg explains who is taking this to the highest court and what they are seeking.

Shira Schoenberg, Commonwealth Magazine: The ACLU, both the national branch and the ACLU of Massachusetts, are asking the U.S. Supreme Court to consider a case that essentially could set limits on the police's ability to conduct long-term camera surveillance without obtaining a search warrant. The issue is, basically, can you put a camera in a public place in front of somebody's home and just take that video for months on end without a warrant?

Carrie Healy, NEPM: So is there a difference between state law and federal law on this?

There is. The Supreme Judicial Court has ruled that under the Massachusetts state constitution, there was a case where the police had put some cameras on a utility pole outside some drug dealer's homes. And the judge said that that's not admissible because this type of long-term surveillance needs to have a warrant. They say, under the [state] constitution, it is an unconstitutional search and seizure. if you literally aim a camera at somebody's home for months without getting a warrant.

But under federal law, it's not clear because the courts have really come down both ways on whether this constitutes a search and seizure under the Fourth Amendment of the US Constitution. So there have been different federal court rulings landing on both sides of this issue. The current case that the ACLU is asking the Supreme Court to take, actually went up to the Court of Appeals, and a panel of appeals court judges found that an individual doesn't have an expectation of privacy in the front of their home. But then it went to the full appeals court, who considered it with all six justices — it's called an en banc review — and those justices actually deadlocked. They came out 3 to 3 and couldn't make that decision on whether this type of surveillance constitutes a Fourth Amendment search.

So it makes a difference whether there was a person staked out watching this residence in Springfield versus a camera on a pole.

So, you could, in theory, have an in-person stakeout and stand outside somebody's house, and that would be fine under the Constitution. That's not a problem. But in the case like this, the police were saying it was this residential, quiet neighborhood where you can't do in-person surveillance. And then the question becomes really, the use of the technology. Is putting this pole camera, staring up somebody's house in this residential neighborhood, is that the equivalent of just putting a person outside? Or is the technology something different, something potentially more nefarious, that exposes more? You know, you're literally getting this 24-hour stream of somebody's house. So is that a higher level of intrusion of privacy than having a person, who is sitting in front of your house, who might have to leave occasionally, or who you might notice is sitting in front of your house?

This also comes down to the fact that they were being surveilled by federal Alcohol, Tobacco and Firearms agents. Is there an expectation that this is going to come down one way or the other? The surveillance happened in 2017, and here we are with a Supreme Court that is a very different court than what was in 2017.

It is. And I think the first big question is just whether the court's going to take the case at all. It's a petition for cert, which means the ACLU is asking the Supreme Court to take the case, but it's the justices’ decision whether to actually do so. I think the ACLU does make a strong case that if you really have dueling rulings on this from different federal appeals courts, that there is a strong argument to be made that the U.S. Supreme Court should decide the issue.

And then it comes down to exactly how the justices are going to split. And I think that at this point that's very much an open question. I mean, as you said, it's a very different court. And I don't know that we have all the information on how these justices are going to come down on a privacy and surveillance issue like this one.

So now we wait?

Now we wait. We see if the court takes the case. And if they do, then it'll go to oral arguments — and it will certainly take time before we get to arguments and briefings and eventually a ruling.

Carrie Healy hosts the local broadcast of "Morning Edition" at NEPM. She also hosts the station’s weekly government and politics segment “Beacon Hill In 5” for broadcast radio and podcast syndication.

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