United States v. Moore-Bush

963 F.3d 29

• Court: Court of Appeals for the First Circuit
• Decided: June 16, 2020
• Docket: 19-1582P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 19-1582 19-1625 UNITED STATES,

Appellant,

v.

NIA MOORE-BUSH, a/k/a Nia Dinzey,

Defendant, Appellee.

Nos. 19-1583 19-1626 UNITED STATES,

DAPHNE MOORE,

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Howard, Chief Judge, Lynch and Barron, Circuit Judges.

Randall E. Kromm, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellant. Judith H. Mizner, Assistant Federal Public Defender, for appellee Nia Moore-Bush, a/k/a Nia Dinzey. Linda J. Thompson, with whom John M. Thompson and Thompson & Thompson, P.C. were on brief, for appellee Daphne Moore. Matthew R. Segal, Jessie J. Rossman, Kristin M. Mulvey, American Civil Liberties Union Foundation of Massachusetts, Nathan Freed Wessler, Brett Max Kaufman, and American Civil Liberties Union Foundation on brief for American Civil Liberties Union and American Civil Liberties Union of Massachusetts, amici curiae. Trisha B. Anderson, Alexander A. Berengaut, Jadzia Pierce, and Covington & Burling LLP on brief for Center for Democracy & Technology, amicus curiae.

June 16, 2020 LYNCH, Circuit Judge. This appeal by the prosecution

raises the question of whether the Supreme Court's opinion in

Carpenter v. United States, 138 S. Ct. 2206 (2018), a cell phone

location automatic tracking technology case, provides a basis for

departing from otherwise binding and factually indistinguishable

First Circuit precedent in United States v. Bucci, 582 F.3d 108

(1st Cir. 2009), and Supreme Court precedent, including Katz v.

United States, 389 U.S. 347 (1967), on which Bucci is based. In

departing from that precedent and suppressing evidence obtained

from a pole camera, the district court erred by violating the

doctrine of stare decisis.

Under the doctrine of stare decisis, all lower federal

courts must follow the commands of the Supreme Court, and only the

Supreme Court may reverse its prior precedent. The Court in

Carpenter was concerned with the extent of the third-party

exception to the Fourth Amendment law of reasonable expectation of

privacy and not with the in-public-view doctrine spelled out in

Katz and involved in this case.

Carpenter was explicit: (1) its opinion was a "narrow"

one, (2) it does not "call into question conventional surveillance

techniques and tools," and (3) such conventional technologies

include "security cameras." Carpenter, 138 S. Ct. at 2220. Pole

cameras are a conventional surveillance technique and are easily

- 3 - thought to be a species of surveillance security cameras. Thus,

Carpenter, by its explicit terms, cannot be used to overrule Bucci.

The district court erred for other separate reasons as

well. The Bucci decision firmly rooted its analysis in language

from previous Supreme Court decisions, including Katz, Smith v.

Maryland, 442 U.S. 735 (1979), California v. Ciraolo, 476 U.S. 207

(1986), and Kyllo v. United States, 533 U.S. 27 (2001). Bucci,

582 F.3d at 116-17. The Court in Carpenter was clear that its

decision does not call into question the principles Bucci relied

on from those cases. Carpenter, 138 S. Ct. at 2213-19.

The district court also transgressed a fundamental

Fourth Amendment doctrine not revoked by Carpenter, that what one

knowingly exposes to public view does not invoke reasonable

expectations of privacy protected by the Fourth Amendment. This

understanding, as explained by Justice Scalia in Kyllo, was part

of the original understanding of the Fourth Amendment at the time

of its enactment. Kyllo, 533 U.S. at 31-32.

Affirming the district court's order would mean

violating the law of the circuit doctrine, that "newly constituted

panels in a multi-panel circuit court are bound by prior panel

decisions that are closely on point." San Juan Cable LLC v. P.R.

Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010). Although there are two

exceptions to the doctrine, "their incidence is hen's-teeth-rare."

Id. And neither exception is applicable here.

- 4 - The argument made in support of the district court's

suppression order is that the logic of the opinion in Carpenter

should be extended to other technologies and other Fourth Amendment

doctrines, and this extension provides a basis to overturn this

circuit's earlier precedent in Bucci. Nothing in Carpenter's

stated "narrow" analysis triggers the rare second exception to the

law of the circuit doctrine. Carpenter, 138 S. Ct. at 2220.

The defendants thus ask us to violate the vertical rule

of stare decisis, that all lower federal courts must follow the

commands of the Supreme Court and that only the Supreme Court may

reverse its prior precedent, and the law of the circuit, binding

courts to follow circuit precedent. See Bryan A. Garner et al.,

The Law of Judicial Precedent 21-43 (2016). Affirming the district

court would also violate the original understanding of the Fourth

Amendment.

I.

A. The Investigation and Indictments

The following facts are undisputed. Following a tip

from a cooperating witness ("CW"), the Bureau of Alcohol, Tobacco,

Firearms, and Explosives ("ATF") began investigating defendant Nia

Moore-Bush in January 2017 for the unlicensed sale of firearms.

About a month into the investigation, in February 2017, Moore-Bush

and her then-boyfriend, later-husband, Dinelson Dinzey moved in

with Moore-Bush's mother, defendant Daphne Moore, at 120 Hadley

- 5 - Street in Springfield, Massachusetts, in a quiet residential

neighborhood. At the time, Moore was a lawyer and Assistant Clerk

Magistrate for the Hampden County, Massachusetts, Superior Court.

Moore-Bush and Dinzey lived at the property "off and on" for the

period relevant to this appeal.

The government had evidence that 120 Hadley Street,

Moore's property, was the site of illegal activity even before

installation of the pole camera. For example, on May 5, 2017, the

CW, acting on the government's orders, wore a recording device and

purchased four guns illegally from Moore-Bush, through Dinzey, at

that location.

Approximately two weeks later, on or about May 17, 2017,

ATF installed a camera towards the top of the public utility pole

across the public street from the unfenced-in house at 120 Hadley

Street (the "pole camera"). The record is silent as to whether

the camera was visible. The camera was used until mid-January

2018, when Moore-Bush and Dinzey were arrested. Investigators did

not seek any judicial authorization to install the pole camera and

did not need to do so under the law at that time in May of 2017.

The images from the pole camera captured one side of the front of

Moore's house. The camera did not capture the house's front door;

it did show the area immediately in front of the side door, the

attached garage, the driveway to the garage, part of the lawn, and

a portion of the public street in front of the house. A tree in

- 6 - the front yard, when it had leaves, partially obstructed the

camera's view.

The government also from time to time had investigators

conduct physical surveillance of these same areas, and presumably

more areas, from the public street. Those surveillance officers

could see everything the pole camera could see, and even more.

The tree, when it had leaves, did not obstruct their view. The

record is silent as to whether the officers on the street used

cameras, binoculars, or the like, but during physical surveillance

they were often close enough to observe and record license plate

numbers of vehicles in the driveway.

The district court declined to hold an evidentiary

hearing on the technical capabilities of the pole camera;

nonetheless, the following is established by the record. The pole

camera operated 24/7. Officers could access the video feed either

live or via recordings. When they were watching the pole camera's

live stream, but only then, officers could control the camera's

zoom, pan, and tilt features remotely, akin to what an observer on

the street could see with or without visual aids. The zoom feature

was powerful enough for officers observing live to read the license

plates on cars parked in the driveway. The camera's resolution

was much lower at night in the darkness. Regardless of the zoom

feature, the pole camera could not capture anything happening

inside of the house. Everything it captured was visible to a

- 7 - passerby on the street. The pole camera did not and could not

capture audio, and so captured no sound, even sounds which could

be heard on the street. The record does not indicate what the

pole camera looked like or its manufacturer.

The camera did not cover or capture all aspects of life

at 120 Hadley Street. According to an affidavit from a government

investigator appended to one of the wiretap applications, the pole

camera footage was only of limited use because it captured just a

portion of the front of the house, was partially obstructed by a

tree, and had to be monitored live in order to use the zoom feature

to see faces, license plates, and other details clearly.

The government used different investigative tools over

time to investigate Moore-Bush and those thought to be co-

conspirators at this location, including using a CW and having

officers conduct physical surveillance of the property. Warrants

were obtained, based in part on the pole camera evidence. Pursuant

to warrants, law enforcement tracked suspects' locations using

cell phone location data. Pursuant to warrants, investigators

mounted GPS trackers on suspects' vehicles. Pursuant to a warrant,

officers searched the private contents of Dinzey's Facebook

account. Pursuant to court orders, officers installed pen

registers and trap and trace devices on several cell phones. They

received judicial authorization to wiretap several phones. They

also listened to consensually recorded jail calls made by Moore's

- 8 - long-time romantic partner, who they believed was also involved in

illegal activities; looked through discarded trash; and subpoenaed

financial and other records.

The pole camera recorded useful evidence throughout its

duration. The record shows that officers included evidence from

the pole camera, along with many other pieces of evidence, in

successful wiretap and search warrant applications starting in

July 2017 and continuing throughout the fall and winter. This

usefulness explains the eight-month duration of the use of the

camera.

By the end of 2017, the government was prepared to bring

charges that Moore-Bush and Dinzey were trafficking narcotics from

Springfield to Vermont, where they would exchange drugs for cash,

firearms, and other valuables. A federal grand jury indicted

Moore-Bush, Dinzey, and three others from Vermont as co-

conspirators, but not the mother Moore, on January 11, 2018, for

conspiracy to distribute and possess with intent to distribute

heroin and twenty-eight grams or more of cocaine base, in violation

of 21 U.S.C. §§ 846 and 841(b)(1)(B)(iii). Moore-Bush and Dinzey

were arrested the following day. The pole camera, which at this

point had been up for about eight months, was removed soon after

her arrest, in "mid-January 2018."

Over the course of 2018, the government gathered

evidence that Moore was involved in her daughter's drug trafficking

- 9 - scheme, in part based on evidence that Moore-Bush was depositing

cash from her drug sales into bank accounts in Massachusetts and

Vermont held by Moore in trust for Moore-Bush. Almost a year after

the original indictment, on December 20, 2018, the grand jury

returned a superseding indictment naming Moore-Bush,1 Dinzey, the

three Vermont co-conspirators, and adding three other co-

conspirators and Moore, Moore-Bush's mother.2

Moore was charged with one count of conspiracy to

distribute and possess with intent to distribute heroin, cocaine,

and cocaine base, in violation of 21 U.S.C. § 846 (Count One); one

count of distribution and possession with intent to distribute

heroin, cocaine, and cocaine base, in violation of 21 U.S.C.

§ 841(a)(1) on November 17, 2017 (Count Three); one count of money

1 Moore-Bush was charged with one count of conspiracy to distribute and possess with intent to distribute heroin, cocaine, and 280 grams or more of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(iii) (Count One); five counts of distribution and/or possession with intent to distribute narcotics, in violation of 21 U.S.C. § 841(a)(1) (Counts Two through Six); two counts of money laundering conspiracy, in violation of 18 U.S.C. § 1956(h) (Counts Seven and Eight); seven counts of money laundering, in violation of 18 U.S.C. § 1956(a)(1) (Counts Eleven and Fourteen through Nineteen); one count of conspiracy to deal firearms without a license, in violation of 18 U.S.C. § 371 (Count Twenty); two counts of dealing firearms without a license, in violation of 18 U.S.C. § 922(a)(1)(A) (Counts Twenty- One and Twenty-Two); and one count of aiding and abetting the possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 2 (Count Twenty-Three). 2 The superseding indictment also removed one of the original Vermont co-conspirators.

- 10 - laundering conspiracy in financial transactions in Hampden County,

Massachusetts, Washington County, Vermont, and elsewhere, in

violation of 18 U.S.C. § 1956(h) (Count Eight); multiple counts of

money laundering in those same locations, in violation of 18 U.S.C.

§ 1956(a)(1) with her daughter at T.D. Bank (Counts Fourteen

through Nineteen); one count of making false statements to federal

agents around January 12, 2018, in violation of 18 U.S.C. § 1001

(Count Twenty-Four); and a drug forfeiture charge.

B. The Motions to Suppress and District Court Opinion

On April 22, 2019, Moore moved to suppress the pole

camera evidence and the fruits of that evidence. Moore-Bush filed

a very similar motion on May 2, 2019. The motions argued that the

government's use of the pole camera was a search under the Fourth

Amendment to the United States Constitution that required judicial

authorization. They argued they had both subjective and

objectively reasonable expectations of privacy in "the whole of

[their] physical movements in and out of [their] home for a period

of eight months."3 They argued the entire recording over the eight

3 They did not argue that the government had "physically intrud[ed]" onto their property under the "trespass" theory of Fourth Amendment searches. See Florida v. Jardines, 569 U.S. 1, 5 (2013). Indeed, the pole on which the camera was installed was a public utility pole across the street from Moore's home and not on her property.

- 11 - months was a search, and they did not attempt to define what period

of time the government might legally have recorded them, if any.

Moore-Bush and Moore acknowledged that the Bucci

decision from this circuit upheld the constitutionality of a pole

camera that also operated for eight months. They argued that Bucci

was no longer controlling precedent because "[t]he search and

seizure landscape, particularly regarding the scope of individual

privacy rights, has changed considerably since Bucci was decided."

In particular, they pointed to the Supreme Court case Carpenter v.

United States. They also cited Florida v. Jardines, 569 U.S. 1

(2013), and United States v. Jones, 565 U.S. 400 (2012). They did

not argue that the good faith exception could not apply or that

probable cause did not exist.

The government opposed the motions to suppress on May 6,

2019, addressing its arguments to the grounds Moore-Bush and Moore

asserted in their motions. It argued that neither defendant had

shown enough to support a finding of a subjective expectation of

privacy. Further, it argued that Bucci was controlling and Bucci

directly foreclosed any argument that Moore-Bush or Moore had an

objectively reasonable expectation of privacy in the front of their

home. It argued Carpenter did not impact, much less overrule,

Bucci because Carpenter was a "narrow" decision about cell-site

location information that did not "call into question conventional

surveillance techniques and tools, such as security cameras."

- 12 - Carpenter, 138 S. Ct. at 2220. And the government argued Jardines

and Jones could not overrule Bucci because those cases primarily

dealt with physical trespass, which is not at issue in this case.

The government did not argue at any time that probable cause

existed for either the installation of the pole camera or its

eight-month duration. In its opposition, the government did not

raise the good faith exception to argue that, regardless, the

evidence could not be suppressed.

The district court heard oral argument on the motions on

March 13, 2019. On June 4, 2019, it released a memorandum and

order granting Moore-Bush and Moore's motions to suppress.4 In

its order, the court found that both defendants subjectively

"expected privacy in the whole of their movements over the course

of eight months from continuous video recording with magnification

and logging features in the front of their house." The court held

that defendants' direct and imputed subjective privacy interests

were "infer[red]" from their choice to live in a home in a quiet

suburban neighborhood. The court reasoned that persons who live

in quiet suburban neighborhoods have greater privacy interests

than persons who live in other neighborhoods.

The court held that Bucci was not controlling because of

the Supreme Court's decision in Carpenter, which it found freed it

4 The June 4, 2019, order made minor, non-substantive corrections to an otherwise identical order from June 3, 2019.

- 13 - to reevaluate the issue of whether warrantless pole camera

surveillance requires a warrant. The district court held that:

"(1) continuous video recording for approximately eight months;

(2) focus on the driveway and front of house; (3) ability to zoom

in so close that [the pole camera] can read license plate numbers;

and (4) creation of a digitally searchable log" made the use of

the pole camera a search. It did not determine if any discrete

part of the recording was not a search or at what point during the

duration of the pole camera's recording a warrant was required.

It simply suppressed the entirety of the pole camera evidence.

Since no exception under Davis v. United States, 564

U.S. 229, 239 (2011), was raised by the government in its

opposition to the defendants' suppression motions, the district

court considered any government argument as to the good faith

exception to have been waived. The court suppressed all evidence

obtained directly by the pole camera, but "[took] no action with

regard to evidence collected indirectly from the Pole Camera."5

The government filed a motion for reconsideration on

June 4, 2019. For the first time in the proceedings, it attached

the specific photos and videos from the pole camera that it

5 On June 6, 2019, Moore filed a "Renewed Motion for Evidentiary Hearing on Derivative Evidence and Suppression of Evidence Derived From Fruits of Pole Camera Surveillance," with argument on this point. The district court has not ruled on it yet because of these appeals.

- 14 - intended to introduce at trial. Based on those photos and the

record as a whole, it argued that the district court had

inaccurately exaggerated the pole camera's technical capabilities.

Citing Davis and United States v. Sparks, 711 F.3d 58 (1st Cir.

2013), for the first time, the government argued that the good

faith exception to the Fourth Amendment's exclusionary rule should

apply and permit it to introduce the pole camera evidence even if

the evidence were unconstitutionally obtained.

The district court denied the motion for reconsideration

on June 5, 2019. On June 6, 2019, the government appealed the

suppression order. On June 19, 2019, it appealed the order denying

reconsideration.

II.

A. The Doctrine of Stare Decisis Controls This Case

The doctrine of stare decisis comes from the Latin maxim

"stare decisis et non quieta movere," meaning "to stand by the

thing decided and not disturb the calm." Ramos v. Louisiana, 140

S. Ct. 1390, 1411 (2020) (Kavanaugh, J., concurring in part). "The

doctrine of stare decisis renders the ruling of law in a case

binding in future cases before the same court or other courts owing

obedience to the decision." Gately v. Massachusetts, 2 F.3d 1221,

1226 (1st Cir. 1993). It "precludes the relitigation of legal

issues that have previously been heard and authoritatively

determined." Eulitt ex rel. Eulitt v. Me., Dep't of Educ., 386

- 15 - F.3d 344, 348 (1st Cir. 2004) (citing Stewart v. Dutra Constr.

Co., 230 F.3d 461, 467 (1st Cir. 2000) (subsequent history

omitted)).

The role of stare decisis is to "keep the scale of

justice even and steady, and not liable to waver with every new

judge's opinion." Ramos, 140 S. Ct. at 1411 (Kavanaugh, J.,

concurring in part) (quoting 1 W. Blackstone, Commentaries on the

Laws of England 69 (1765)). It is "a foundation stone of the rule

of law." Allen v. Cooper, 140 S. Ct. 994, 1003 (2020) (quoting

Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 798 (2014)).

The doctrine is commonly divided into horizontal and

vertical precedent. See Garner et al., supra, at 27. Vertical

precedents are decisions in "the path of appellate review," meaning

Supreme Court decisions control all lower federal courts and

circuit court decisions control federal district courts in their

circuits. Id. at 28 (citing Evan H. Caminker, Why Must Inferior

Courts Obey Superior Court Precedents?, 46 Stan. L. Rev. 817, 825

(1994)). Courts are absolutely bound to follow vertical

precedents. Id. at 27.

The Supreme Court has repeatedly stressed the importance

of both circuit and district courts faithfully following vertical

precedent. See Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd.,

460 U.S. 533, 535 (1983) (per curiam) ("Needless to say, only this

Court may overrule one of its precedents."); Hutto v. Davis, 454

- 16 - U.S. 370, 375 (1982) (per curiam), reh'g denied, 455 U.S. 1038

(1982) ("[U]nless we wish anarchy to prevail within the federal

judicial system, a precedent of this Court must be followed by the

lower federal courts no matter how misguided the judges of those

courts may think it to be."); see also Eberhart v. United States,

546 U.S. 12, 19-20 (2005) (praising the Seventh Circuit for

following Supreme Court precedent despite its doubts).

The law of the circuit doctrine protects horizontal

precedent, or precedent from the same court, meaning that generally

"a prior panel decision shall not be disturbed." United States v.

Lewko, 269 F.3d 63, 66 (1st Cir. 2001). The law of the circuit

doctrine has two recognized, narrow exceptions, but "their

incidence is hen's-teeth-rare." San Juan Cable LLC, 612 F.3d at

33. The first exception applies when "the holding of the prior

panel is 'contradicted by controlling authority, subsequently

announced.'" Id. (quoting United States v. Rodríguez, 527 F.3d

221, 225 (1st Cir. 2008)).6 The second exception, which is even

more uncommon, applies only in those "rare instances in which

authority that postdates the original decision, although not

directly controlling, nevertheless offers a sound reason for

6 No one contends that Carpenter directly overrules prior law approving the use of pole cameras by law enforcement without obtaining a warrant, the first exception to the law of the circuit doctrine.

- 17 - believing that the former panel, in light of fresh developments,

would change its collective mind." Id. (quoting Williams v.

Ashland Eng'g Co., 45 F.3d 558, 592 (1st Cir. 1995) (subsequent

history omitted)).7

The respecting of both kinds of precedent is essential

at all levels in the operation of the federal courts. As the

Supreme Court recently explained, stare decisis "promotes the

evenhanded, predictable, and consistent development of legal

principles, fosters reliance on judicial decisions, and

contributes to the actual and perceived integrity of the judicial

process." Kisor v. Wilkie, 139 S. Ct. 2400, 2422 (2019) (quoting

Payne v. Tennessee, 501 U.S. 808, 827 (1991)).

The Supreme Court has decided several recent appeals

based on stare decisis. In Allen v. Cooper, for instance, the

Court looked to not only the relevant precedent's narrow legal

holding but also its method of analysis. See Allen, 140 S. Ct. at

1003-07. And the Court noted that even it, the final court of

appeal in our judicial system, will not overrule past Supreme Court

precedent absent a "'special justification' over and above the

belief 'the precedent was wrongly decided.'" Id. at 1003. See

also Gundy v. United States, 139 S. Ct. 2116, 2123-26 (2019)

7 Other circuits have an even more restrictive test. See Garner et al., supra, at 492-93.

- 18 - (following the Court's previous interpretation of the Sex Offender

Registration and Notification Act and therefore finding no non-

delegation issue); Ramos, 140 S. Ct. at 1390 (discussed more

below).

B. Bucci Built on Supreme Court Case Law and Is Controlling Here

Bucci is a First Circuit case, decided in 2009, which

held that the government's use of a pole camera across the street

from Bucci's home for eight months was not a search because Bucci

did not have an objectively reasonable expectation of privacy in

the front of his home. Bucci, 582 F.3d at 116-17. That holding

is on all fours8 with the issue presented in Moore-Bush and Moore's

8 Bucci is not factually distinguishable from the case at hand. Law enforcement officials installed a video camera on the utility pole across the street from both defendants' houses. Bucci, 582 F.3d at 116. Both cameras were directed at the respective homes' garages and driveways. Id. Both cameras operated for eight months. Id. Both defendants challenged law enforcement's use of a pole camera on Fourth Amendment grounds and moved to suppress the evidence obtained from it. Id. There are even more factual similarities. Bucci, like Moore-Bush and Moore, was implicated in a drug trafficking conspiracy. Id. at 111. Neither home had fences, gates, or shrubbery to block a passerby's view of the garage or driveway from the street. Id. at 116-17. We take judicial notice that the record in the Bucci case makes clear that the pole camera's footage there also could be viewed live and was recorded. Order Denying Motion to Suppress, United States v. Bucci, No. 1:03-cr-10220-NMG (D. Mass. Dec. 22, 2004), ECF No. 114. Agents in both cases monitored the footage to track the movements of the houses' inhabitants and guests. Id. The only factual difference of any note between the two cases is that law enforcement officers in Bucci were not able to zoom, pan, or tilt the camera remotely while they directly viewed the images in real time. Bucci, 582 F.3d at 116. The district

- 19 - cases. That holding in Bucci relied on basic Fourth Amendment

principles explicated by the Supreme Court in cases stretching

back decades, and even to the Founders. Those cases relied on in

Bucci remain good law today.

Bucci began its analysis by laying out a legal test first

established by the Supreme Court in Katz and later formalized in

Smith v. Maryland, 442 U.S. at 740. Id. (citing United States v.

Rodríguez-Lozada, 558 F.3d 29, 37 (1st Cir. 2009)) (explaining

that a reasonable expectation of privacy must be established before

a court may reach the merits of a motion to suppress). To establish

that he had a reasonable expectation of privacy, "Bucci must show

that 1) he 'has exhibited an actual, subjective expectation of

privacy' in the area searched; and 2) 'such subjective expectation

is one that society is prepared to recognize as objectively

reasonable.'" Id. (quoting United States v. Rheault, 561 F.3d 55,

59 (1st Cir. 2009) (itself citing Smith, 442 U.S. at 740)).

Bucci focused on the second part of the test about "the

lack of a reasonable objective expectation of privacy because this

court correctly determined that this distinction is "too thin" to distinguish Bucci. On appeal, defendants argue that their case is distinguishable from Bucci because they have a privacy interest "in the whole of their movements over the course of eight months from continuous video recording with magnification and logging features in the front of their house," while we described Bucci's privacy interest as an interest "in the front of his home." Id. We reject the attempt to distinguish these two cases merely by describing the same privacy interest with different words.

- 20 - failure is so clear." Id. (citing United States v. Vilches-

Navarrete, 523 F.3d 1, 14 (1st Cir. 2008)). It said that "[a]n

individual does not have an expectation of privacy in items or

places he exposes to the public," like Bucci's front yard, and

held that "[t]hat legal principle is dispositive here." Id. at

117.

Bucci based that statement of law on language from three

Supreme Court cases. First, it relied on and cited to a principle

from Katz that "the Fourth Amendment protects people, not places.

What a person knowingly exposes to the public, even in his own

home or office, is not a subject of Fourth Amendment protection."

Id. (quoting Katz, 389 U.S. at 351). Then Bucci cited to the part

of the Court's decision in Ciraolo, 476 U.S. at 213, that says,

"[t]he Fourth Amendment protection of the home has never been

extended to require law enforcement officers to shield their eyes

when passing by a home on public thoroughfares." Id. Finally,

Bucci cited to the portion of Kyllo, 533 U.S. at 31-33, that

discusses the lawfulness of unenhanced visual surveillance of a

home.9 Id.

9 The First Circuit cases cited to in Bucci -- Rodríguez- Lozada, Rheault, and Vilches-Navarrete -- themselves also relied on the Supreme Court's decisions in Smith, Kyllo, and Ciraolo, or circuit precedents based on those cases. In each of those cases, this court rejected that there was a reasonable expectation of privacy as to areas far more private and less accessible to public view than the views here, all visible to anyone on the street. See Rheault, 561 F.3d at 61 (relying on fact tenant could not

- 21 - C. Carpenter Directly Prohibits Any Departure from Stare Decisis

No case from the Supreme Court decided since Bucci,

including Carpenter, undermines Bucci or the Supreme Court cases

on which Bucci relied. To the contrary, Carpenter reaffirms the

analysis the Bucci court undertook by explicitly protecting

conventional surveillance techniques and by repeatedly affirming

the underlying language from Supreme Court cases which Bucci cited

and which provided the rationale of the Bucci decision. Because

we are strictly bound to apply Supreme Court precedent, this

language in Carpenter prohibits us and the district court from

departing from stare decisis.

The limitations expressed in the Carpenter analyses are

not mere dicta. We consider both the language protecting

conventional surveillance technology and the reaffirmation of the

existing Fourth Amendment case law quoted in Bucci to be essential

to the Court's holding in Carpenter.

But even if both the analyses and the express limiting

language were dicta, federal circuit and district courts are not

free to ignore them. See United States v. Santana, 6 F.3d 1, 9

(1st Cir. 1993) ("Carefully considered statements of the Supreme

exclude other tenants from a third-floor landing in a building); Rodríguez-Lozada, 558 F.3d at 37 (stating casual visitor has no expectation of privacy as to apartment of another); Vilches- Navarrete, 523 F.3d at 14 (holding there is no reasonable expectation of privacy in secret apartment under hidden hatch in maritime vessel).

- 22 - Court, even if technically dictum, must be accorded great weight

and should be treated as authoritative when, as in this instance,

badges of reliability abound."); McCoy v. Mass. Inst. of Tech.,

950 F.2d 13, 19 (1st Cir. 1991) ("[F]ederal appellate courts are

bound by the Supreme Court's considered dicta almost as firmly as

by the Court's outright holdings, particularly when, as here, a

dictum is of recent vintage and not enfeebled by any subsequent

statement."); see also Pierre N. Leval, Judging Under the

Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1250

(2006) (describing how dicta are "often treated as binding law").

Even beyond Carpenter's expressly stated limitations,

Carpenter did not provide cause to question Bucci for a different

reason. Carpenter concerned whether the doctrine that there can

be no reasonable expectation of privacy in information placed in

the hands of third parties should be extended to the new situation

of the government obtaining from cellular telephone companies over

a period of time cell-site location information ("CSLI").

Carpenter, 138 S. Ct. at 2211. CSLI generates a time-stamped

record of the user's past location whenever a phone accesses the

wireless network, which, for smartphone users, is often several

times a minute. Id. Carpenter holds that the collection of seven

days of CSLI constitutes a search within the meaning of the Fourth

Amendment, but it did not reach the question of the consequences

of data collection over a shorter period. Id. at 2217 n.3.

- 23 - Carpenter's limitations unquestionably apply here. Pole

cameras are conventional, not new, technology.10 They are the

exact kind of "conventional surveillance technique[]" the Court

carefully said it was not calling into question. Id. at 2220.

Pole cameras have been mentioned in published decisions in our

circuit since at least 2003, see United States v. Montegio, 274 F.

Supp. 2d 190, 201 (D.R.I. 2003), and outside of the circuit since

at least 1987, see United States v. Cuevas-Sanchez, 821 F.2d 248,

250-51 (5th Cir. 1987). This is in sharp contrast to the much

more recent technology at issue in Carpenter, which was unique to

"modern" phones that "generate increasingly vast amounts of

increasingly precise CSLI." Carpenter, 138 S. Ct. at 2212.

Indeed, in common parlance, pole cameras are "security

cameras." The Court in Carpenter described "security cameras" as

a type of a "surveillance technique[]" that the Court's opinion

10 The district court erred as to the record, doing so in service of its conclusion that pole cameras, or at least this pole camera, represent a potential new privacy threat. Pole cameras are video cameras. The record does not indicate that the "digitally searchable log" the district court relied on is anything more than a recording that could be started at different points in time, much like VHS tapes. The fact that the camera could zoom, pan, and tilt also does not significantly set it apart from pre- existing technology, especially since these features were only available to officers observing the footage live. Amicus curiae the Center for Democracy & Technology warn us that pole cameras could be abused in the future if the government were to combine them with facial recognition technology or artificial intelligence. But those issues are simply not present in this case.

- 24 - did not call into question, a longstanding technique routinely

deployed by government and private actors alike. While there may

be other uses for security cameras, they are clearly used for

surveillance, and that use was specifically referred to by the

Court. Thus, pole cameras are security cameras in the way that is

relevant for this analysis.11

11 The district court attempted to distinguish pole surveillance cameras from security cameras by arguing that security cameras "guard against . . . crime" (alteration in original), while pole cameras "investigate suspects." The concurrence attempts to make a similar distinction. Both attempts fail, and neither provides any basis to avoid the rule of stare decisis. Most neighborhoods, for their own safety and for other reasons, do not want crime within their boundaries, and guarding against crime involves investigating suspects. Privately owned cameras routinely record property privately owned by others or common areas with multiple owners. In addition, recordings from privately owned video cameras have been used many times in this circuit to prosecute people accused of crimes. See, e.g., United States v. Smiley, 3:19-CR-00752-RAM, 2019 WL 6529395, at *5 (D.P.R. Dec. 4, 2019) (discussing the government's use of footage from a privately owned camera installed on a cruise ship to prove a domestic violence charge); United States v. Tsarnaev, 53 F. Supp. 3d 450, 458 (D. Mass. 2014) (discussing evidence obtained from a camera installed in a Macy's department store). The attempted distinction, in any event, misses the point Carpenter was making. Similarly, "security cameras" are not exclusively owned by private parties; they are commonly owned by the government and are often used for law enforcement purposes. It is not true that the government only uses security cameras as if it were acting to protect its own proprietary interests. The City of Springfield, for example, reports on its website that it operates more than forty cameras located throughout the city to "get a real time look at resident and business complaints or concerns." Real Time Camera's Assist DPW, City of Springfield (Dec. 24, 2013 7:46 AM), https://www.springfield-ma.gov/dpw/index.php?id=cameras. The Massachusetts Bay Transit Authority ("MBTA") has installed hundreds of cameras on its buses that live-stream footage to central dispatch and MBTA Transit Police officers' cars. Martine

- 25 - In addition, the government argues that Carpenter leaves

intact the principles Bucci relies on from Supreme Court precedents

in Katz and Ciraolo. We agree. The Supreme Court was clear in

Carpenter that its decision does not call into question the

language Bucci cited from Supreme Court precedent in Katz, 389

U.S. at 351, Ciraolo, 476 U.S. at 213, and Kyllo, 533 U.S. at 31-

33. Two of those cases, Katz and Kyllo, were cited repeatedly

throughout the Court's decision in Carpenter. Carpenter, 138 S.

Ct. at 2213-19. Indeed, Carpenter cited some of the same language

from Katz that was cited in Bucci. Id. at 2213 ("the Fourth

Amendment protects people, not places").

Nowhere in the Carpenter opinion does the Court suggest

that any of those cases, or any part of the Court's existing Fourth

Amendment framework involving the lack of Fourth Amendment

protection for places a defendant knowingly exposes to public view,

has been overruled or modified. Instead, the opinion was framed

as "how to apply the Fourth Amendment to a new phenomenon." Id.

Powers, New Cameras Keep Watch on MBTA Buses, The Boston Globe (Feb. 12, 2014), https://www.bostonglobe.com/metro/2014/02/11/ begins-installation-bus-security-cameras/Z1QwILHvLb3TgsgOPXa9yM/ story.html. When these cameras were installed, the Suffolk County District Attorney commented that they would be useful both to deter crime and to investigate it after it has occurred. Id. As said, Carpenter holds that particular surveillance technologies, including security cameras, are not called into question. And even if the limitations in Carpenter were only dicta, the doctrine of stare decisis would apply. See Santana, 6 F.3d at 9.

- 26 - at 2216. In Carpenter, the Court refused to extend the third-

party doctrine that "a person has no legitimate expectation of

privacy in information he voluntarily turns over to third parties"

to long-term monitoring of CSLI. Id. at 2216 (quoting Smith, 442

U.S. at 743-44). It explicitly framed its holding in terms of the

third-party doctrine, a doctrine not relevant here. Id. ("We

therefore decline to extend Smith and [United States v.] Miller[,

425 U.S. 435 (1976),] to the collection of CSLI."). Indeed, it

specifically criticized Justice Thomas's and Justice Gorsuch's

dissents for attempting to revisit Katz when neither party asked

the Court to do so. Id. at 2214 n.1.

The cases cited by Katz, Ciraolo, and Kyllo naturally

extend to the circumstances here. The defendants and the

concurrence argue that law enforcement's eight-month use of the

pole camera is distinguishable because it was particularly

"unrelenting, 24/7, perfect." But the Court's existing Fourth

Amendment case law has already considered and allowed behavior

that might be described as "unrelenting" and found no violation of

any reasonable expectation of privacy. Any home located on a busy

public street is subject to the unrelenting gaze of passersby, yet

"[t]he Fourth Amendment protection of the home has never been

extended to require law enforcement officers to shield their eyes

when passing by a home on public thoroughfares." Ciraolo, 476

U.S. at 213.

- 27 - Conversely, the Court in Carpenter explained why CSLI is

different than the information obtained by a public view of a

particular location, such as from pole cameras. CSLI "provides an

all-encompassing record of the [cell phone] holder's whereabouts,"

id. at 2217, "beyond public thoroughfares and into private

residences, doctor's offices, political headquarters, and other

potentially revealing locales," id. at 2218. There is no

equivalent analogy to what is captured by the pole camera on the

public street, which is taking images of public views and not more.

A pole camera does not track the whole of a person's movement over

time.

The Carpenter Court reasoned that CSLI creates

"otherwise unknowable" data and is as comprehensively invasive for

law enforcement to use "as if it had attached an ankle monitor to

the phone's user." Id. That is not this situation, and pole

cameras are plainly not an equivalent to CSLI. The pole camera

here captured only a small slice of the daily lives of any

residents, and then only when they were in particular locations

outside and in full view of the public. Pole cameras are fixed in

place and do not move with the person as do cell phones generating

CSLI. In many ways, as described earlier, this pole camera

- 28 - captured less information about Moore and Moore-Bush than someone

on the street could have seen and captured.

D. The Language from Supreme Court Cases on Which Bucci Relied Requires Reversal of the District Court

Because they were not altered in Carpenter or any other

case, the principles in the case law relied on in Bucci continue

to be good law. The government argued that the cases cited in

Bucci have "the most closely on-point holdings" and "provide the

same support for the conclusion that use of a pole camera is not

a 'search' that they did when Bucci and cases like it were

decided." We agree. The concurrence is wrong to say that Bucci

misreads the Supreme Court precedents on which it relies. If

anything, Carpenter reinforces Bucci's reading of these existing

precedents, and we remain bound by Supreme Court precedent to reach

the same conclusion this court did when it decided Bucci. It

remains true, as a general matter, that:

The Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

Katz, 389 U.S. at 351 (internal citations omitted); see also

Ciraolo, 476 U.S. at 213 (quoting a portion of the language from

Katz copied above).

- 29 - The government also argues that nothing in Jones or

Jardines purports to overrule the rule of Katz and Ciraolo that a

person does not have a reasonable expectation of privacy in the

actions he or she exposes to the public view. Indeed, the majority

opinions in Jones and Jardines are inapposite because they rely on

a trespass theory, not a reasonable expectations theory.

Our analysis must be "informed by historical

understandings 'of what was deemed an unreasonable search and

seizure when [the Fourth Amendment] was adopted.'" Carpenter, 138

S. Ct. at 2214 (quoting Carroll v. United States, 267 U.S. 132,

149 (1925)). Justice Scalia's majority opinion in Kyllo

establishes that, at the time of adoption of the Fourth Amendment,

"[v]isual surveillance was unquestionably lawful because 'the eye

cannot by the laws of England be guilty of a trespass.'" Kyllo,

533 U.S. at 31-32. Indeed, Justice Scalia's opinion in Kyllo

quoted Boyd v. United States, 116 U.S. 616, 628 (1886), which

itself quoted from English law, Entick v. Carrington, 19 How. St.

Tr. 1029, 95 Eng. Rep. 807 (K.B. 1765).

Bucci cited Kyllo. Bucci, 582 F.3d at 117. In Kyllo,

the Court affirmed that "the lawfulness of warrantless visual

surveillance of a home has still been preserved." Kyllo, 533 U.S.

at 32. By granting Moore-Bush and Moore's suppression motions,

the district court broke with the original understanding of the

Fourth Amendment as found by the Supreme Court.

- 30 - Kyllo also aids our analysis in another way. The issue

there concerned "the use of a thermal-imaging device aimed at a

private home from a public street to detect relative amounts of

heat within the home." Id. at 29. In particular, in holding that

the use of a thermal-imaging device is a search, the Court

distinguished between this uncommon and then new technology and

technology that is "in general public use." Id. at 34.

E. No Exception to Stare Decisis Applies for Other Reasons

Even absent the explicit limiting language in Carpenter,

Carpenter's reasoning does not undermine Bucci's reasoning.

Moore-Bush and Moore disagree and make the following argument.

Bucci rests on what they characterize as a categorical statement:

"An individual does not have an expectation of privacy in items or

places he exposes to the public." Bucci, 582 F.3d at 117 (citing

Katz, 389 U.S. at 351). "That legal principle is dispositive

here." Id.

Carpenter, on the other hand, contains the following

passage that, in the words of the district court, seems "to cabin

-- if not repudiate -- that principle": "A person does not

surrender all Fourth Amendment protection by venturing into the

public sphere. To the contrary, 'what [one] seeks to preserve as

private, even in an area accessible to the public, may be

constitutionally protected.'" Carpenter, 138 S. Ct. at 2217

(alteration in original) (quoting Katz, 389 U.S. at 351-52).

- 31 - The alleged tension between these two statements,

according to the defendants, "offers a sound reason for believing

that the former panel [in Bucci], in light of fresh developments,

would change its collective mind," permitting this panel to revise

otherwise binding horizontal precedent. Williams, 45 F.3d at 592.

There is no such reason.

The referred-to passage from Bucci and the "cabining"

language from Carpenter both quote from the same decision, Katz.

And the specific quotes at issue immediately follow one another in

the opinion. Katz, 389 U.S. at 351. It is true that Katz said

generally, "[w]hat a person knowingly exposes to the public, even

in his own home or office, is not a subject of Fourth Amendment

protection." Id. It then provided a possible exception to that

rule: "[b]ut what he seeks to preserve as private, even in an area

accessible to the public, may be constitutionally protected." Id.

Bucci's statement that the general rule "is dispositive here"

certainly meant that no established exception applied in that case,

not that no exceptions exist. Bucci quoted Katz at page 351, and

the exception was raised in the very next sentence of the opinion

in Katz.12 Indeed, here, the only images recorded were those of

12 In a Fed. R. App. P. 28(j) letter, Moore stated that the government cited Vega-Rodriguez v. Puerto Rico Telephone Co., 110 F.3d 174 (1st Cir. 1997), to support the "categorical rule" in Bucci that "an individual does not have an expectation of privacy in items or places he exposes to the public." The government did no such thing. It cited Vega-Rodriguez for the proposition that

- 32 - the front areas of Moore's house, exposed to the view of any member

of the public. Defendants clearly did nothing to seek to preserve

those views as private.

Moreover, as discussed above, Carpenter did not purport

to alter Katz as to what constitutes a search when law enforcement

uses traditional technology.13 Instead, it rooted its analysis in

existing case law, which was untouched or affirmed in Carpenter.

Carpenter and Bucci are not in tension for several reasons. One

is that they rely on the same case law foundation. And we note

that it is up to the Supreme Court, not this court, to address

arguments that anything in the Katz line of cases has been

overruled. See Rodriguez de Quijas v. Shearson/Am. Express, Inc.,

490 U.S. 477, 484 (1989) ("[T]he Court of Appeals should . . .

leav[e] to this Court the prerogative of overruling its own

decisions.")

"the mere fact that the observation is accomplished by a video camera rather than the naked eye, and recorded on film rather than in a supervisor's memory, does not transmogrify a constitutionally innocent act into a constitutionally forbidden one." Id. at 181. This, too, remains good law. 13 Further, the district court erred in interpreting statements of general law made in a Fourth Amendment case as it did. "Fourth Amendment analysis is renownedly fact specific." United States v. Beaudoin, 362 F.3d 60, 70 (1st Cir. 2004), vacated on other grounds by Champagne v. United States, 543 U.S. 1102 (2005). Chief Justice Marshall's warning from almost two centuries ago applies here: "It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used." Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821).

- 33 - Nor can any basis for overruling Bucci be found in the

Carpenter Court's reference to "some basic guideposts" in Fourth

Amendment jurisprudence, including the amendment's goals of

"secur[ing] 'the privacies of life' against 'arbitrary power',"

Carpenter, 138 S. Ct. at 2214 (quoting Boyd, 116 U.S. at 630) and

"plac[ing] obstacles in the way of a too permeating police

surveillance," id. (quoting United States v. Di Re, 332 U.S. 581,

595 (1948)). These general principles were firmly in place before

Carpenter (and Bucci) and acknowledged in Carpenter as such. Id.

We agree with the government that nothing in Jones

undermines the principle from Katz and Ciraolo, repeated in Bucci,

that a person does not have a reasonable expectation of privacy in

the actions he or she knowingly exposes to public view. No basis

for revisiting Bucci can be found in Carpenter's noting that five

justices, in concurrences written by Justice Alito and Justice

Sotomayor, had agreed in the 2012 case Jones that a GPS tracker

attached to someone's car could violate someone's expectation of

privacy in the whole of their physical movements. Id. at 2217

(citing Jones, 565 U.S. at 430 (Alito, J., concurring in judgment);

id. at 415 (Sotomayor, J., concurring)). The Carpenter Court

reasoned that this would apply with equal force to CSLI. But it

did so by closely analogizing between the two technologies, stating

that CSLI, like GPS information, "provides an intimate window into

- 34 - a person's life" because it "provides an all-encompassing record

of the holder's whereabouts." Carpenter, 138 S. Ct. at 2217.

As the Sixth Circuit has noted in affirming the denial

of a motion to suppress evidence obtained from pole cameras, the

concurrences in Jones are easily distinguished on this point. The

concurrences were concerned "that long-term GPS monitoring would

'secretly monitor and catalogue every single movement," United

States v. Houston, 813 F.3d 282, 290 (6th Cir. 2016) (quoting

Jones, 565 U.S. at 430 (Alito, J., concurring in judgment)), and

"generate[] a precise, comprehensive record of a person's public

movements," id. (quoting Jones, 565 U.S. at 415 (Sotomayor, J.,

concurring)).14 Information obtained from pole cameras does not

give rise to the same concerns.

14 The Sixth Circuit again rejected this argument in United States v. May-Shaw, 955 F.3d 563, 567 (6th Cir. 2020). In addition, several district courts have also considered the issue, and they have all found that pole cameras still do not constitute a search. See United States v. Fanning, No. 1:18-cr-362-AT-CMS, 2019 WL 6462830 (N.D. Ga. May 28, 2019); United States v. Gbenedio, No. 1:17-CR-430-TWT, 2019 WL 2173994 (N.D. Ga. May 17, 2019); United States v. Kelly, No. 17-cr-175-pp, 2019 WL 2137370 (E.D. Wis. May 16, 2019); United States v. Harris, No. 17-CR-175, 2019 WL 2996897 (E.D. Wis. Feb. 19, 2019); United States v. Kubasiak, No. 18-CR-120, 2018 WL 6164346 (E.D. Wis. Aug. 23, 2018); United States v. Tirado, No. 16-CR-168, 2018 WL 3995901 (E.D. Wis. Aug. 21, 2018); United States v. Kay, No. 17-CR-16, 2018 WL 3995902 (E.D. Wis. Aug. 21, 2018); United States v. Tuggle, No. 16-cr- 20070-JES-JEH, 2018 WL 3631881 (C.D. Ill. July 31, 2018). The Sixth Circuit affirmed the constitutionality of pole cameras after the Supreme Court's decision in Jones. See Houston, 813 F.3d 282.

- 35 - Recently, the Supreme Court in Ramos v. Louisiana had an

extensive discussion of the role of stare decisis in deciding

constitutional cases, with various justices laying out their own

tests for when to overrule precedent. Ramos, 140 S. Ct. 1390.

None of their respective tests suggest that we should understand

Carpenter as having overruled or modified existing Fourth

Amendment precedent so as to put it in tension with our analysis

in Bucci.

The majority opinion in Ramos, written by Justice

Gorsuch, states that the Court should consider "the quality of the

decision's reasoning; its consistency with related decisions;

legal developments since the decision; and reliance on the

decision." Id. at 1405 (quoting Franchise Tax Bd. Of Cal. v.

Hyatt, 139 S. Ct. 1485, 1499 (2019)).15

The decisions in Katz v. United States, 389 U.S. 347

(1967) (Stewart, J.), Smith v. Maryland, 442 U.S. 735 (1979)

(Blackmun, J.), California v. Ciraolo, 476 U.S. 207 (1986) (Burger,

C.J.), and Kyllo v. United States, 533 U.S. 27 (2001) (Scalia,

J.), cannot be called less than high-quality. As described above,

nothing before or since those decisions draw into question their

reasoning. And law enforcement has substantially relied on these

15Justice Sotomayor joined this part of the majority's opinion, while also filing a concurrence.

- 36 - precedents to deploy surveillance technologies like pole cameras

in countless criminal investigations.

In this case, law enforcement officers relied on these

precedents in deciding not to obtain a warrant for the pole camera,

both when it was initially installed and later as they continued

to use the camera over an eight-month period during this major

drug crime conspiracy investigation. This was not an example of

law enforcement installing a camera without even reasonable

suspicion. Before the camera was installed, a CW, acting on the

government's orders, purchased four guns illegally from Moore-

Bush, through Dinzey, at Moore's house. Evidence obtained from

the pole camera after it was installed was used in successful

wiretap and search warrant applications starting in July 2017 and

continuing throughout the fall and winter. Their reliance interest

is particularly strong here, where evidence obtained after a short

period of surveillance likely could have supported a warrant

application and showed the need for continuing surveillance.

As stressed by the government in their briefing, law

enforcement's reliance interest is not limited to just this case.

Pole cameras are often used by law enforcement officers to show

that they exhausted other investigative techniques before seeking

a warrant for a more invasive surveillance. See, e.g., United

States v. Bregu, 948 F.3d 408, 411 (1st Cir. 2020) (noting that

pole camera evidence was used to obtain a warrant for cell phone

- 37 - location information); United States v. Figueroa, 501 F. App'x 5,

6 (1st Cir. 2013) (unpublished) (same for wiretap). Indeed, law

enforcement did so in this case. As the government has argued,

affirmance of the district court would call into question other

surveillance technologies that similarly have been used for

decades, which would be in direct conflict with the Supreme Court's

statement in Carpenter that it did not call into question

"conventional surveillance techniques." Carpenter, 138 S. Ct. at

2220. This is particularly true if it were to call into question

the use of security cameras, which have long been used for

continuing surveillance over time and, for the reasons discussed

above, are hard to distinguish from pole cameras. It is hardly an

answer to these reliance concerns to say that law enforcement can

no longer rely on clear Supreme Court precedent and First Circuit

precedent in Bucci and must take refuge in the good faith doctrine,

as the concurrence suggests.

Although the court in Ramos overruled the relevant

precedent in that case, Apodaca v. Oregon, 25 U.S. 404 (1972)

(plurality opinion), it did so because Apodaca was "unusual" in

the way the opinions were divided 4-1-4. Ramos, 140 S. Ct. at

1399 (quoting McDonald v. Chicago, 561 U.S. 742, 766 n.14 (2010)).

We note that, of all the cases that stand for the proposition that

there is no objective privacy interest in what is exposed to public

view, none were similarly divided.

- 38 - The dissent in Ramos was even more concerned with the

harm of upsetting reliance interests than the majority was. Id.

at 1436-39 (Alito, J., dissenting). In particular, it highlighted

the state's interest in the finality of its verdicts and warned of

a "potential tsunami of litigation" following the majority's

ruling. Id. at 1436. If we were to interpret Carpenter as

overruling part of the Court's existing Fourth Amendment legal

framework, it would raise the same concerns.

Justice Kavanaugh's partial concurrence lays out a

three-part test for when to overrule precedent: if the precedent

is "egregiously wrong"; it has "caused significant negative

jurisprudential or real-world consequences"; and "overruling the

prior decision [would] unduly upset reliance interests." Id. at

1414-15. Again, there is nothing to suggest that any of the

Supreme Court cases relied on by Bucci are wrong, let alone

"egregiously wrong." Pole cameras are commonly used by law

enforcement and, particularly in their current iteration, have not

had significant negative real-world consequences. The

government's reliance interest in the sustained use of the pole

camera was significant. Had the government been put on any notice

that it needed to obtain a warrant to continue surveillance, it

- 39 - likely would have sought and obtained a warrant early on based on

the new evidence the camera revealed.16

The district court's view of Carpenter also conflicts

with other binding First Circuit precedent. This court has already

rejected the proposition that Carpenter produced "a sea change in

the law of reasonable expectation of privacy," United States v.

Morel, 922 F.3d 1, 8 (1st Cir. 2019), and consequently, that

argument also cannot provide a basis. In United States v. López,

890 F.3d 332, 340 (1st Cir. 2018), this court declined to invoke

the second exception where we had already rejected a party's

interpretation of Supreme Court case law in an unpublished opinion.

Finally, this court has never found the second exception

to the law of the circuit to be permissible in the face of such

explicit commands from the Supreme Court. To the contrary, we

have declined to apply the exception where the Supreme Court

explicitly narrowed its holding. See Wallace v. Reno, 194 F.3d

279, 281 (1st Cir. 1999) ("Although this provision might appear to

channel judicial intervention in all deportation matters to the

16 Justice Thomas's opinion concurring in the judgment noted his disagreement with "the Court's typical formulation of the stare decisis standard . . . because it elevates demonstrably erroneous decisions -- meaning decisions outside of the realm of permissible interpretation -- over the text of the Constitution and other duly enacted federal law." Ramos, 140 S. Ct. at 1421 (quoting Gamble v. United States, 139 S. Ct. 1960, 1981 (2019) (Thomas, J., concurring in judgment)). Again, there is no indication that any of the existing Fourth Amendment cases relevant here were wrongly decided.

- 40 - court of appeals, the Supreme Court concluded that section 242(g)

governed only three specific decisions by the Attorney General

. . . .").

III.

We reverse and remand with instruction to deny the

motions to suppress.

-Concurring Opinion Follows-

- 41 - BARRON, Circuit Judge, concurring in the judgment. When

a catcher flashes the sign for a fastball rather than a curve, he

takes the risk that the runner on second will tip off the batter

to the pitch that's coming. But, while that runner's sign stealing

breaks no rules, his team's does if it involves hiding a high-

resolution video camera with zooming capacity behind the wall in

center field, recording every move that the opposing catcher makes

behind the plate, and using that video log to keep hitters in the

know for all nine innings. See Statement of the Commissioner from

Robert D. Manfred, Jr., Commissioner of Baseball, Major League

Baseball (Jan. 13, 2020), https://img.mlbstatic.com/mlb-

images/image/upload/mlb/cglrhmlrwwbkacty27l7.pdf.

The defendants in this case share Major League

Baseball's intuition that expectations of privacy are not merely

the residue of technological capacity. They ask us to be guided

by it, however, for a more consequential purpose than setting the

rules for America's pastime. They ask us to rely on it to find

that the Fourth Amendment of the United States Constitution bars

law enforcement's warrantless and suspicionless use of

surreptitious, unrelenting remote-control video surveillance of

the entryways of private residences.

The defendants concede that -- at least to some

significant extent -- both their home's side entrance and its

garage were knowingly exposed to public view. They thus

- 42 - acknowledge that they knowingly took the risk of exposing their

comings and goings to and from their home to the equivalent of the

runner on second -- whether an undercover detective in the bushes

across the street or a neighbor walking his dog.

But, the defendants contend, law enforcement's

warrantless use of a remotely controlled video camera stealthily

affixed to a neighborhood utility pole, supplying a live feed to

the station house, and trained on those parts of their residence

without relent for eight months still interfered with their

reasonable expectations of privacy. And, for that reason, they

contend, it still constituted a search that violated the Fourth

For most of our nation's history, the most vigilant

voyeur could not replicate this kind of surveillance of the

concededly observable but often intimate daily activities of life

that occur so close to home. For that reason, the defendants

contend, society should be prepared to accept the legitimacy of

their expectation of privacy in them, even though their unblinking

and ceaseless electronic monitoring is now possible. Otherwise,

the defendants -- like the amici -- warn that, given the pace of

innovation, law enforcement will have license to conduct a degree

of unchecked criminal investigatory surveillance that the Fourth

Amendment could not possibly have been intended to allow. See Br.

for The Center for Democracy & Technology at 19-25 (describing how

- 43 - technological advances, such as facial recognition software and

rapid search capabilities, will enable pole cameras, and thereby

law enforcement, to be more intrusive and efficient in the

immediate future).

Based on this concern, the District Court ruled that the

government's continuous, unmanned, and warrantless video

surveillance of the defendants' movements in and out of their

residence did interfere with their reasonable expectation of

privacy. For that reason, it granted the defendants' motions to

suppress all evidence traceable to the pole camera, as the

government had offered no reason for concluding that, insofar as

its use constituted a search, it was a constitutional one.

The government's appeal from that ruling raises the two

distinct questions that the majority's opinion addresses. The

first is whether one of our own precedents from 2009, United States

v. Bucci, 582 F.3d 108 (1st Cir. 2009), requires that we reverse

the District Court and accept the government's contention that the

video surveillance at issue here did not violate the defendants'

reasonable expectation of privacy and thus did not constitute a

search for Fourth Amendment purposes. The second is whether, even

if Bucci does not compel that outcome, we are nonetheless bound to

reach it as a matter of stare decisis, due to the United States

Supreme Court's post-Bucci decision in Carpenter v. United States,

138 S. Ct. 2206 (2018).

- 44 - I agree with my colleagues' conclusion that Bucci, per

the law-of-the-circuit doctrine, stands in the way of the

defendants' contention that the surveillance here amounted to a

search. I do not agree, however, with my colleagues' further

suggestion that Carpenter not only prevents us, as a panel, from

concluding that Bucci called it wrong, but also requires us, as a

Circuit, to conclude that Bucci called it right.

If that were so, then Bucci's one-paragraph analysis of

this constitutional issue would suffice as our Circuit's

explanation for why, seemingly, whole neighborhoods may be

subjected to this type of warrantless surveillance without law

enforcement first having to offer up so much as an articulable

suspicion that it will turn up evidence of a crime. In my view,

Carpenter is better read to be but the Supreme Court's latest sign

that we must be more attentive than Bucci was in its brief

discussion of the Fourth Amendment to the risk that new technology

poses even to those "privacies of life" that are not wholly

shielded from public view. Carpenter, 138 S. Ct. at 2214 (quoting

Boyd v. United States, 116 U.S. 616, 630 (1886)). And, because

that sign is one that we are obliged to steal, I thus read

Carpenter, if anything, only to underscore the need for us to

reconsider Bucci en banc.

- 45 - I.

Bucci held that the use of a video pole camera pointed

at the front door of the defendant's home for eight months was not

a search because such surveillance did not interfere with any

objectively reasonable expectation of privacy that the defendant

had. See 582 F.3d at 116-17. Under the law-of-the-circuit

doctrine, that no-search ruling controls the outcome for us here

unless: (1) it "is contradicted by subsequent controlling

authority, such as a decision by the Supreme Court, an en banc

decision of the originating court, or a statutory overruling,"

United States v. Barbosa, 896 F.3d 60, 74 (1st Cir. 2018) (citing

United States v. Rodríguez, 527 F.3d 221, 225 (1st Cir. 2008)),

cert. denied, 139 S. Ct. 579 (2018); or (2) "authority that

postdates the original decision, although not directly

controlling, nevertheless offers a sound reason for believing that

the former panel, in light of fresh developments, would change its

collective mind," id. (citing Williams v. Ashland Eng'g Co., 45

F.3d 588, 592 (1st Cir. 1995)).

The defendants respond that Bucci rested on a single

"legal principle" that it deemed to be "dispositive": "An

individual does not have an expectation of privacy in items or

places he exposes to the public." 582 F.3d at 117 (citing Katz v.

United States, 389 U.S. 347, 351 (1967) ("[T]he Fourth Amendment

protects people, not places. What a person knowingly exposes to

- 46 - the public, even in his own home or office, is not a subject of

Fourth Amendment protection.")). But, the defendants go on to

point out, Carpenter, which held that the government's subpoena of

the cell-site location records of a defendant from his cell phone

carrier constituted a "search" subject to the Fourth Amendment,

explained that "[a] person does not surrender all Fourth Amendment

protection by venturing into the public sphere." 138 S. Ct. at

2217. And, the defendants then note, even though the target of

the "surveillance" in Carpenter had not taken explicit steps to

"preserve" that information "as private," id. (quoting Katz, 389

U.S. at 351), the Court held that he had a reasonable expectation

of privacy in it in part because "society's expectation has been

that law enforcement agents and others would not -- and indeed, in

the main, simply could not -- secretly monitor and catalogue" such

information, id. (quoting United States v. Jones, 565 U.S. 400,

430 (2012) (Alito, J., concurring in judgment)).

The defendants contend that these passages from

Carpenter give a "new gloss," Rodríguez, 527 F.3d at 222, to the

single legal principle on which Bucci claimed to have relied, such

that we must conclude that the panel in that case now "would change

its collective mind," id. at 225 (quoting Williams, 45 F.3d at

592). They thus argue that, as the District Court held, Carpenter

at least triggers the second exception to the law-of-the-circuit

doctrine.

- 47 - I am not persuaded that Carpenter strips Bucci of its

precedential force, given the differing factual contexts in which

the two cases arise. See Williams, 45 F.3d at 592 (noting that

the second exception "pertains to . . . relatively rare

instances"). In Bucci, the defendant's movements all occurred on

his own property. Yet, the panel there explained, he had not

shielded that property from outside prying eyes by, say, erecting

a privacy fence or planting a tree. 582 F.3d at 116-17. The

"surveillance" at issue in Carpenter, however, was of the

defendant's movements all over town and thus in places over which

he had no control akin to that of the defendant in Bucci. See

Carpenter, 138 S. Ct. at 2218. That meant that those movements

occurred where the target of the "surveillance" could not undertake

the kinds of countermeasures that Bucci highlighted. Thus, because

Carpenter did not have any occasion to address whether the failure

to take them might bear on the reasonableness of one's expectation

of privacy in going in and out of one's own home, I cannot say

that we, as a panel, are free to disregard Bucci based on

Carpenter.

Still, it is important to keep in mind that the

law-of-the-circuit doctrine provides an orderly means by which a

Circuit may operate through panels until it collectively decides

that its precedent requires revision through the en banc process.

I thus think it is important to explain my disagreement with the

- 48 - additional suggestion that my colleagues make, which is that Bucci

controls not just this panel but our Court because Carpenter -- far

from casting doubt on Bucci -- "reaffirms" what it held. Maj. Op.

at 22. For, in making that contention, my colleagues necessarily

conclude not merely that our panel must accept a prior panel's

holding, but also that our Circuit must do so because the Supreme

Court has held the same.

In making that additional holding, my colleagues point

first to the fact that Carpenter "explicitly protect[s]

conventional surveillance techniques." Maj. Op. at 22. But, I do

not read that statement in Carpenter to affirm Bucci.

Carpenter did describe the acquisition of the cell-site

location records at issue in that case as having been enabled by

"modern cell phones," which, unlike predecessor phones,

"generate[] increasingly vast amounts of increasingly precise"

cell-site location information. 138 S. Ct. at 2212. It is also

true that, as my colleagues note, published cases involving the

use of video pole camera surveillance date back to the late 1980s.

See United States v. Cuevas-Sanchez, 821 F.2d 248, 250-51 (5th

Cir. 1987) (finding that law enforcement's use of a video pole

camera to surveil the backyard of a home protected by a ten-foot-

high privacy fence was a Fourth Amendment search).

- 49 - But, the first commercial cell-site tower was erected

years before the first opinions about video pole camera

surveillance that my colleagues highlight were issued, see Jon

Van, Chicago goes cellular, Chi. Trib. (June 3, 2008),

http://www.chicagotribune.com/nation-world/chi-chicagodays-cellu

lar-story-story.html, and the use of locational records from those

towers by law enforcement began at least as early as 2001, see

United States v. Forest, 355 F.3d 942 (6th Cir. 2004), vacated sub

nom. Garner v. United States, 543 U.S. 1100 (2005). I doubt that

Carpenter meant to embrace a construction of the Fourth Amendment

that would cast doubt on law enforcement's use of sophisticated

technologies to conduct surveillance if they emerged just over a

decade after the bicentennial of the Constitution but endorse them

if they occurred on its eve. Thus, in referring to "conventional

surveillance techniques and tools," Carpenter, 138 S. Ct. at 2220,

I do not understand the Court to have signaled that it had in mind

even a quite contemporary variant of the stakeout rather than

simply its age-old predecessor.

My colleagues also rightly point out, however, that

Carpenter expressly names "security cameras" as a type of

"conventional" surveillance tool, Maj. Op. at 24 (quoting

Carpenter, 138 S. Ct. at 2220), and they contend that video pole

cameras like the one used here "are easily thought" of as "security

cameras," id. at 3-4. For that reason, they conclude that

- 50 - Carpenter made clear, in this one brief passage, that it did have

the kind of surveillance that Bucci confronted -- and that we

confront here -- very much in mind.

But, "security camera" is hardly the only way -- or even

the most natural way -- to describe a pole camera like the one at

issue either in Bucci or this case. Conventional "security

cameras" are typically deployed by property owners to keep watch

over their own surroundings, not as a law enforcement tool for

conducting a criminal investigation by peering into property owned

by others. In fact, that Carpenter had only "security cameras" of

the former ilk in mind would appear to be evidenced by the

opinion's choice to make its one reference to them in the very

same sentence that clarifies that the Court "do[es] not disturb"

the case law that addresses a person's expectation of privacy in

information voluntarily handed over to third parties, 138 S. Ct.

at 2220 (discussing United States v. Miller, 425 U.S. 435 (1976)

and Smith v. Maryland, 442 U.S. 735 (1979)). The following

sentence -- in which the Court explained that the opinion also was

not "address[ing] other business records that might incidentally

reveal location information," id. (emphasis added) -- further

supports the conclusion that the Court was referencing "security

cameras" as a "business" record, rather than as a tool deployed by

law enforcement to conduct criminal investigations by surveilling

the comings and goings on the thresholds of private homes. And,

- 51 - consistent with this same understanding, the government itself

explains in its briefing to us that "a 'security camera' is

typically a private recording system that law enforcement would

access under the third-party doctrine."

That a governmental entity intent on protecting its own

property -- such as a municipal transit authority watching over

its tracks and trains -- may employ such video surveillance in the

same manner as a private business owner is of no moment for

purposes of construing this aspect of Carpenter. We may assume

that Carpenter meant to treat the government in its role as

property owner no differently from a private business with respect

to the use of security cameras for purposes of monitoring places

under its control. For, even with that assumption in place, I do

not see how Carpenter's reference to "security cameras" is best

read impliedly to bless a police department's warrantless and

suspicionless use of a video pole camera continuously and secretly

to surveil the entryways of a private home in an effort to make a

criminal case rather than merely to keep watch over its own parking

lots or station houses as a standard safety precaution that

property owners now routinely take.

Of course, even security cameras used in this

conventional manner by private businesses to keep watch over their

own surroundings -- or by governmental entities to patrol

theirs -- may, in certain instances, pick up images of ordinary

- 52 - people on a public sidewalk or street. They might even, in certain

cityscapes, capture people going in and out of their residences,

depending on how the camera is aimed.

But, the fact that such cameras -- to say nothing of

cell phones -- capture more and more of the publicly visible spaces

that we find ourselves in hardly suggests to me that Carpenter's

reference to "security cameras" is properly read to be a holding

that no one now has a reasonable expectation of privacy in their

presence in any place in public view that some other property

owner -- whether private or public -- might incidentally record.

And, that being so, I cannot see how Carpenter may be read to go

even a step further and to hold -- by virtue of its reference to

"security cameras" -- that the months-long, uninterrupted video

surveillance of the activities surrounding one's home by law

enforcement invades no privacy expectation that society should be

prepared to accept. In fact, I note that Carpenter said nothing

about security camera footage of someone else's home, let alone

about such footage when it is picked up not in passing by another

property owner's camera, but by law enforcement's use of one for

months for the dedicated purpose of capturing every moment of what

transpires in the curtilage of that residence.17

17 The government is no ordinary property owner, of course, given the kinds of property that it controls. As my colleagues note, for example, the City of Springfield, Massachusetts uses its cameras to monitor for "[t]raffic light configurations,"

- 53 - For these reasons, I do not read Carpenter to have had

law enforcement's use of video pole cameras like the one at issue

here in mind when it expressly identified the categorical limit on

its holding that my colleagues highlight. Insofar as there is any

doubt on that score, moreover, it is entirely proper for us, as

circuit judges, not to assume that the Court coyly made such a

far-reaching and never-before-announced holding. And that is

especially the case when, to do so, we would have to conclude that

the Court made it implicitly and in passing in the course of an

opinion that otherwise makes such a point of highlighting the

constitutional concerns raised by law enforcement's ever-

increasing capacity to engage in the perfect surveillance of

"[t]raffic backups," "[r]oad closures," "[c]onstruction projects," "[s]now plow progress," and "[r]oad conditions," and for "get[ting] a real time look" when responding to "resident and business complaints." Real Time Camera's assist DPW, City of Springfield (Dec. 24, 2013 7:46 AM), https://www.springfield- ma.gov/dpw/index.php?id=cameras. The further one gets from the traditional private property owner's use of video surveillance to keep watch over what they own, however, the less plausible it becomes to me to conclude that Carpenter meant blithely to sign off on the notion that the government's use of that type of surveillance technology for security rather than law enforcement necessarily poses no threat to individual expectations of privacy or that such use, in and of itself, renders any such expectation of privacy in even one's comings and goings to and from one's own home unreasonable, if such expectation is asserted to support a contention that the continuous surveillance of those activities by a government "security camera" constitutes a search. The reductio of this observation makes the point well enough. See, e.g., Paul Mozur & Aaron Krolik, A Surveillance Net Blankets China's Cities, Giving Police Vast Powers, N.Y. Times (Dec. 17, 2019), https://www.nytimes.com/2019/12/17/technology/china-surveillance .html.

- 54 - activities that, in a lower-tech world, were clothed in practical

anonymity. Thus, in my view, Carpenter's important caveat that

its holding does not "call into question conventional surveillance

techniques and tools, such as security cameras," 138 S. Ct. at

2220, has no bearing on the question before us.

There does remain the fact that my colleagues find that

Carpenter "leaves intact" the case law on which Bucci relied, Maj.

Op. at 26, and I agree with them that this body of precedent does

hold that, at least ordinarily, a person has no reasonable

expectation of privacy in the activities in which they knowingly

engage in public view. Carpenter is a self-avowedly "narrow"

ruling, 138 S. Ct. at 2220, and it is important that we not read

it to be more disruptive than it inherently is.

But, that same body of precedent, which I agree Carpenter

did not overturn, also contains -- quite expressly -- important

strands that qualify the proposition on which Bucci relied on it

for about the extent of our expectations of privacy in public.

And, because Carpenter, in my view, is best read to draw out those

very strands from those well-settled precedents, I do not read it

to affirm Bucci simply because it does not call into question

several of the key cases on which Bucci relied. Rather, I read

Carpenter at least to raise the question whether Bucci read those

cases -- which we continue to be bound to follow -- correctly in

- 55 - concluding that they afforded so little Fourth Amendment

protection to the defendant in that case.

For example, Carpenter does reaffirm Katz, on which

Bucci relied, just as my colleagues assert. Indeed, Bucci supports

the conclusion that "[a]n individual does not have an expectation

of privacy in items or places he exposes to the public," 582 F.3d

at 117, by quoting these two sentences from Katz: "[T]he Fourth

Amendment protects people, not places. What a person knowingly

exposes to the public, even in his own home or office, is not a

subject of Fourth Amendment protection." Id. (alteration in

original) (quoting Katz, 389 U.S. at 351).

But, immediately following those two sentences, Katz

also includes a critical third sentence that Bucci did not mention:

"But what [a person] seeks to preserve as private, even in an area

accessible to the public, may be constitutionally protected." 389

U.S. at 351. And, notably, it is this omitted third sentence from

Katz that Carpenter relied on to conclude that "[a] person does

not surrender all Fourth Amendment protection by venturing into

the public sphere," 138 S. Ct. at 2217, in the course of holding

that law enforcement's use of technology to surveil a person can,

even when that person is in public, invade a reasonable expectation

of privacy, id.; see also id. (noting that a "majority of this

Court has already recognized that individuals have a reasonable

expectation of privacy in the whole of their physical movements,"

- 56 - even when those movements are in public (citing Jones, 565 U.S. at

430 (Alito, J., concurring in judgment); id. at 415 (Sotomayor,

J., concurring))).

Bucci also cited, as my colleagues note, the portion of

California v. Ciraolo, 476 U.S. 207 (1986), which, citing Katz,

explained that the "[t]he Fourth Amendment protection of the home

has never been extended to require law enforcement officers to

shield their eyes when passing by a home on public thoroughfares."

Id. at 213; see Bucci, 582 F.3d at 117. And, as my colleagues

note, Carpenter left Ciraolo no less intact than it left Katz.

But, here, too, it is hard to see how Carpenter could be

thought thereby impliedly to have endorsed Bucci's sweeping notion

that one lacks a reasonable expectation of privacy in places that

one exposes to public view. Ciraolo held that a plane carrying

law enforcement could conduct an aerial observation of a backyard

at a height of 1000 feet, and thus it did not address unrelenting

surveillance. 476 U.S. at 213. Moreover, the opinion repeatedly

states -- in passages that Bucci did not cite -- that it upheld

only "naked-eye observation." Id. at 213; see also id. at 210,

212 n.1, 213, 215. For these reasons, I do not read Ciraolo to

endorse the idea that the necessarily fleeting gaze of a single

passerby -- even if aggregated with the similarly casual

observations of other flaneurs -- somehow equates to electronic

- 57 - surveillance of the more systematic and unrelenting kind that Bucci

confronted.

Finally, Bucci cited to the Supreme Court's decision in

Kyllo v. United States, 533 U.S. 27 (2001), in explaining that the

Court had "not[ed] [the] lawfulness of unenhanced visual

surveillance of a home." 582 F.3d at 117. In doing so, Kyllo did

emphasize, as my colleagues rightly note, that when the Fourth

Amendment was adopted, "[v]isual surveillance was unquestionably

lawful because 'the eye cannot by the laws of England be guilty of

a trespass.'" 533 U.S. at 31-32 (quoting Boyd, 116 U.S. at 628).

And, as my colleagues also rightly note, Carpenter itself invoked

and affirmed Kyllo.

But, Bucci did not address Kyllo's admonitions to courts

to "assure[] preservation of that degree of privacy against

government that existed when the Fourth Amendment was adopted,"

533 U.S. at 34, and not to leave privacy -- and particularly

privacy of the home -- "at the mercy of advancing technology," id.

at 35. Yet, Carpenter quoted and relied on this very portion of

Kyllo, 138 S. Ct. at 2214, and went on to explain that "[p]rior to

the digital age, law enforcement might have pursued a suspect for

a brief stretch but doing so 'for any extended period of time was

difficult and costly and therefore rarely undertaken,'" id. at

2217 (quoting Jones, 565 U.S. at 429 (Alito, J., concurring in

judgment)). Thus, Bucci did not address the practical fact that

- 58 - Carpenter suggests, based in part on Kyllo, might well matter most

in a case involving sustained surveillance over many months by a

video pole camera -- that it would be highly unlikely that law

enforcement officers could sit outside a home without being spotted

and observe and catalog every activity that occurred over every

moment of that period of time.

Nor, I should add, did Bucci address Kyllo's statement

that, even if "the technology used in the present case was

relatively crude, the rule we adopt must take account of more

sophisticated systems that are already in use or in development."

533 U.S. at 36. Yet, Carpenter quoted and affirmed that precise

instruction, 138 S. Ct. at 2218-19, which is particularly pertinent

to this type of surveillance, given the pace of technological

innovation when it comes to video, see Br. for The American Civil

Liberties Union and The American Civil Liberties Union of

Massachusetts at 19 (discussing a camera installed at Boston Logan

International Airport around ten years ago that, from 150 meters

away, can see any object as small as a centimeter-and-a-half wide);

see also Br. for The Center for Democracy & Technology at 19-25

(explaining that camera technology that could be applied to pole

cameras in the future allows law enforcement to clandestinely

observe small details with great accuracy and that video analytic

software enables the rapid and targeted search of volumes of

information, as well as provides facial recognition capabilities).

- 59 - Given the portions of Katz, Ciraolo, and Kyllo that Bucci

did not address, and the light that Carpenter shines on those

portions, there is reason to question, then, whether Bucci was

right to read those cases to support the conclusion that it reached

rather than to require the opposite one. Thus, while my

colleagues' discussion of stare decisis and the fact that Carpenter

did not overrule Katz, Ciraolo, and Kyllo is indisputably correct,

it is also, in my view, of no consequence to any question that we

must answer. If Bucci is wrong, it is not because Carpenter

rejects the Supreme Court precedents on which Bucci relied. If

Bucci is wrong, it is because Carpenter confirms -- by making it

even clearer in retrospect than it already was -- that Bucci

misapplied those precedents from the get-go, by failing to give

any apparent weight to those aspects of them that pointed against

its conclusion.

To the extent that my colleagues' stare decisis concerns

are instead meant to provide a reason for us not to reconsider

Bucci en banc because it is precedent within this Circuit, I cannot

agree. One of the functions of reconsidering our precedent en

banc is to ensure that our Court's precedent accords with the

understandings of the Supreme Court. See Fed. R. App. P. 35. We

thus honor the doctrine of stare decisis -- rather than flout

it -- when, as a Circuit, we reconsider our own panel opinions to

- 60 - ensure that they align with those of the Supreme Court, past and

present.

IV.

I do not mean to suggest from this comparison of

Carpenter's treatment of Katz, Ciraolo, and Kyllo to Bucci's

treatment of them that Bucci has been stripped of its power to

bind this panel by Carpenter's gloss on them. As I have already

emphasized, Bucci focused on the lack of "fences, gates, or

shrubbery" protecting the defendant's home. 582 F.3d at 116. In

doing so, it identified a factor that arguably bears on the

reasonableness of the defendant's expectation of privacy from the

surveillance that he faced that the surveillance of the defendant

in Carpenter simply did not implicate. Thus, I do not see how our

panel may read Carpenter to free us from adhering to that prior

panel ruling, even if we have doubts about its reasoning.

Nevertheless, I do want to emphasize that Bucci's

treatment of that factor is itself concerning for reasons that are

independent of those that I have already given. For, in

highlighting the countermeasures that the defendant there failed

to take, Bucci gave no apparent consideration to a variety of

factors, including municipal zoning regulations and homeowner

association rules, to say nothing of cost, that commonly disable

a person from erecting barriers to protect against long-term

surveillance of their residences entryways and garages, and not

- 61 - only in suburban settings. Thus, Bucci did not consider whether

one should have an expectation of privacy -- from unrelenting,

24/7, perfect law enforcement surveillance -- in coming and going

from one's home, even if for reasons of time, circumstance, local

laws, or cash there are no hedgerows to protect against such

surveillance.

Relatedly, Bucci failed to account adequately, in my

view, for those precedents that were then in place -- and that

still are -- that suggested a reason to be particularly concerned

about the privacy interests that were threatened by the special

nature of the pole camera's target -- the immediate area

surrounding the home -- given the activities that take place there.

See U.S. Const. amend. IV (protecting the "[t]he right of the

people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures"); Oliver v. United

States, 466 U.S. 170, 180 (1984) ("[T]he curtilage is the area to

which extends the intimate activity associated with the 'sanctity

of a man's home and the privacies of life' and therefore has been

considered part of home itself for Fourth Amendment purposes."

(quoting Boyd, 116 U.S. at 630)). Indeed, in Ciraolo, which Bucci

did rely on, the Court made a point of emphasizing the concerns

raised by surveillance of that area, though Bucci did not discuss

that portion of that opinion. See Ciraolo, 476 U.S. at 212-13

("The protection afforded the curtilage is essentially a

- 62 - protection of families and personal privacy in an area intimately

linked to the home, both physically and psychologically, where

privacy expectations are most heightened.").

These limitations in Bucci's analysis loom even larger

than they otherwise might after Carpenter, notwithstanding the

different kind of surveillance that it addressed. Carpenter made

clear that it was concerned that the surveillance tool in that

case gave law enforcement an "intimate window into a person's life,

revealing not only his particular movements, but through them his

'familial, political, professional, religious, and sexual

associations.'" 138 S. Ct. at 2217 (quoting Jones, 565 U.S. at

415 (Sotomayor, J., concurring)). Yet, under Bucci, law

enforcement's warrantless use of a hidden video camera, supplying

a continuous live but also searchable feed to the station house,

is permitted without any judicial oversight, seemingly even if

such a camera is trained on every home in America. And that is

so, notwithstanding that the "time-stamped data," Carpenter, 138

S. Ct. at 2217, that such constant recording creates may include

real-time images of our children playing outside in our yards, our

friends coming to meet us where we live, and our guests arriving

for gatherings of a religious or political nature, to mention only

those of life's privacies around the home that are least likely to

cause us embarrassment or even shame.

- 63 - So, while I do not read Carpenter to permit us, as a

panel, to disregard Bucci, I do, for these reasons, too, read

Carpenter to underscore the need for us to reconsider Bucci as a

Court. Nor do concerns about reliance interests -- which matter

greatly in the stare decisis calculus -- provide a reason, in my

view, for us to be so wary of shifting course from Bucci that we

must stand by it even if it is wrong. It is never too late for a

Circuit to ensure that its own precedents align with those of the

Supreme Court, and the government's reliance interests in our own

prior precedent here are not strong.

In the event that we were to overrule Bucci en banc, the

good faith exception to the exclusionary rule, see Davis v. United

States, 564 U.S. 229, 232 (2011); cf. United States v. Leon, 468

U.S. 897, 920-22 (1984) -- which the District Court happened to

have found that the government waived in this case -- would likely

provide all the protection that the government would need from

challenges to its use of such video pole cameras during the period

when Bucci was good law. There is thus no tidal wave of backward-

looking litigation in the offing as there may be in some cases.

The reliance interest that the government has in the

future use of such surveillance, moreover, is, as best I can tell,

nonexistent. The government had decades of experience using

eavesdropping technology without a warrant prior to the Supreme

Court's decision in Katz. See Goldman v. United States, 316 U.S.

- 64 - 129, 135 (1942) (upholding the warrantless use of a detectaphone);

Olmstead v. United States, 277 U.S. 438, 470 (1928) (upholding

warrantless wiretapping). But, that did not stop the Supreme Court

from holding that such a practice violated the Fourth Amendment

once it concluded that it did. See Katz, 389 U.S. at 359. That

a means of surveillance might have provided useful evidence in the

past cannot create a going-forward reliance interest that

insulates its deployment from constitutional challenge in the

future.

I close with one final observation. Our Circuit, not so

long ago, confronted a question as to whether to adopt an approach

to the Fourth Amendment that would be attuned to the threats to

privacy posed by new technological realities despite the absence

of precedent compelling us to do so. See United States v. Wurie,

728 F.3d 1 (2013) (considering whether the search-incident-to-

arrest exception to the warrant requirement allowed officers to

search a seized cell phone following the defendant's arrest). We

opted then to adopt that privacy-protective approach, as we were

concerned that any other one would "create 'a serious and recurring

threat to the privacy of countless individuals.'" Id. at 14

(quoting Arizona v. Gant, 565 U.S. 332, 345 (2009)).

The following year, the Supreme Court upheld our

decision. See Riley v. California, 573 U.S. 373 (2014) (declining

- 65 - to extend the search-incident-to-arrest doctrine to allow law

enforcement to conduct warrantless searches of modern cell

phones). It did so in the course of emphasizing once again the

threats that technological advances pose to Fourth Amendment

rights. See id. at 393-95.

The questions that this case raises strike me as similar

in kind. Practical limitations of law enforcement budgets may

constrain the circumstances in which ever-present video

surveillance of our homes' entryways by hidden pole cameras zooming

in on us will occur. So, too, might democratic objection. But,

at present, Congress has placed no legislative limits on law

enforcement's use of such cameras to investigate crime, even though

there is no reason to believe that the lack of such legislation is

a consequence of popular approval of the practice. We thus have

no such legislative judgment to grant deference.

Especially after Carpenter, and what it retrospectively

confirms about how a prior panel of ours may have misread some of

the key Supreme Court decisions in this area, we should not approve

this degree of unchecked law enforcement surveillance based on

only the more-than-decade-old paragraph of analysis that Bucci

provides. The sense of privacy that we take for granted -- even

when in public -- is, as Carpenter confirms, important to protect.

But, it bears emphasizing, the decisions that even lower courts

make about whether to protect it do more than affect the evidence

- 66 - that may be used in particular criminal cases against particular

defendants who have been secretly recorded. They

shape -- collectively -- the society in which we live by helping

to frame the expectations of privacy of even those who are not

surveilled about the freedom that they enjoy under the

Constitution.

The awareness that such surveillance is permitted -- and

that we should all expect that it is -- may do as much to constrain

our sense of what we are free to do as any actual surveillance.

It is thus the expectations of privacy that society is prepared to

accept as legitimate, more than the exclusion of evidence that

courts order in response to them, that ultimately make it possible

for people to go about their lives in ways that reflect that our

society is in practice -- and not just in name -- a free one.

Accordingly, although I concur in the result that the

majority reaches, I think it is important to make it clear that I

do not share the view that it is one that the Supreme Court has

already approved. Rather, in my view, the proper course for our

Court is to use this case to give Bucci fresh consideration en

banc, so that we may determine for ourselves whether the result

that it requires is one that the Supreme Court's decisions, from

Katz to Carpenter, prohibit.18

18There is an issue about how a court could implement this expectation of privacy if it depends for its existence on the

- 67 - duration of the surveillance. But, courts often confront durational issues in the context of the Fourth Amendment, see Carpenter, 138 S. Ct. at 2217 n.3 (finding that "accessing seven days of [cell-site location information] constitutes a Fourth Amendment search"); United States v. Knotts, 460 U.S. 276, 283-85 (1983) (upholding law enforcement's use of a device to track a vehicle for a single car trip but cautioning that "different constitutional principles may be applicable" if technology allowed for "twenty-four hour surveillance of any citizen of this country . . . without judicial knowledge or supervision"); cf. United States v. Sharpe, 470 U.S. 675, 685 (1985) (explaining that, in considering an investigative stop under Terry v. Ohio, 392 U.S. 1 (1968), there is "no rigid time limitation" and there may be "difficult line-drawing problems in distinguishing an investigative stop from a de facto arrest"), so that difficulty does not strike me as a dispositive one. Similarly, there is an issue whether there may be limitations short of the requirement to obtain a warrant or to show probable cause that would ensure that the use of a pole camera like this one is not "unreasonable." U.S. Const. amend. IV (protecting the "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures"); cf. Commonwealth v. McCarthy, 142 N.E.3d 1090, 1110 (Mass. 2020) (Gants, C.J., concurring) (addressing the standards for permitting law enforcement's use of a searchable database of license plates). But, that question only arises if Bucci's no-search holding no longer binds.

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