Amicus Curiae Brief — Daphne Moore, Petitioner v. United States

Supreme Court briefJan 13, 2023

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No. 22-481

IN THE

Supreme Court of the United States

________________

DAPHNE MOORE,

Petitioner,

UNITED STATES,

Respondent.

________________________

On Petition for Writ of Certiorari to

the United States Court of Appeals for the

First Circuit

_________________________________________________

BRIEF OF AMICUS CURIAE CATO INSTITUTE

SUPPORTING PETITIONER

_________________________________________________

January 13, 2023

Jay R. Schweikert

Counsel of Record

Gregory Mill

CATO INSTITUTE

1000 Mass. Ave., NW

Washington, DC 20001

(202) 216-1461

jschweikert@cato.org

QUESTION PRESENTED

Whether nonstop videorecording of a person’s comings and goings from home for eight months with the

purpose of gathering evidence against her is a

“search” under the Fourth Amendment.

TABLE OF CONTENTS

QUESTION PRESENTED ......................................... i

TABLE OF AUTHORITIES ..................................... iii

INTEREST OF AMICUS CURIAE ........................... 1

SUMMARY OF ARGUMENT.................................... 1

ARGUMENT .............................................................. 4

II.

THIS CASE GIVES THE COURT THE

OPPORTUNITY TO TREAT “SEARCH” AS AN

ORDINARY TERM. ........................................... 5

The ATF’s Videorecording Was

Conducted with the Purpose of

Finding Something................................ 6

The ATF’s Videorecording

Brought Information out of

Concealment. ......................................... 9

THE ATF’S SEARCH OF MOORE’S HOME

WAS UNREASONABLE. ................................ 11

There Was No Reason for the

ATF to Search Moore’s Home

Without a Warrant.............................. 12

Moore Did not Meaningfully

Expose the Information Gleaned

from the Video Camera to the

ATF. ..................................................... 15

1. The Searches in Ciraolo and Riley

were Unreasonable ........................ 16

2. Ciraolo and Riley are Distinguishable

from this Case................................ 18

CONCLUSION ......................................................... 21

iii

TABLE OF AUTHORITIES

Page(s)

Cases

ACLU v. Clapper, 785 F.3d 787 (2d Cir.

2015)........................................................................ 7

Arizona v. Hicks, 480 U.S. 321 (1987) ................. 7, 10

Berger v. New York, 388 U.S. 41 (1967) .................. 20

Brigham City v. Stuart, 547 U.S. 398 (2006) .... 12, 13

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

..............................................................15, 16, 17, 19

Camara v. Mun. Ct. of S.F., 387 U.S. 523

(1967) .................................................................... 14

Carpenter v. United States, 138 S. Ct. 2206

(2018) .....................................................6, 15, 18, 20

Florida v. Jardines, 569 U.S. 1 (2013) .......... 5, 13, 19

Florida v. Riley, 488 U.S. 445 (1989) .......... 15, 16, 17

Johnson v. United States, 333 U.S. 10 (1948) ... 13, 14

Katz v. United States, 389 U.S. 347 (1967) ..... 2, 7, 16

Ker v. California, 374 U.S. 23 (1963) ...................... 14

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

............................................................6, 8, 10, 18, 19

Michigan v. Tyler, 436 U.S. 499 (1978) ................... 13

Mincey v. Arizona, 437 U.S. 385 (1978)................... 13

Minnesota v. Carter, 525 U.S. 83 (1998) ................. 12

North Am. Cold Storage Co. v. Chicago, 211

U.S. 306 (1908) ..................................................... 14

Olmstead v. United States, 277 U.S. 438

(1928) ................................................................ 6, 19

Riley v. California, 573 U.S. 373 (2014) ............ 14, 17

Silverman v. United States, 365 U.S. 505

(1961) ...................................................................... 8

Stanley v. Georgia, 394 U.S. 557 (1969) .................. 19

United States v. Di Re, 332 U.S. 581 (1948)...... 15, 20

United States v. Jones, 565 U.S. 400 (2012)

..........................................................7, 11, 15, 19, 20

United States v. Karo, 468 U.S. 705 (1984) ............. 19

United States v. Knotts, 460 U.S. 276 (1983) .......... 10

United States v. Lefkowitz, 285 U.S. 452

(1932) .................................................................... 12

United States v. Robinson, 414 U.S. 218

(1973) .................................................................... 14

Vernonia School Dist. 47J v. Acton, 515 U.S.

646 (1995) ............................................................. 12

Warden, Maryland Penitentiary v. Hayden,

387 U.S. 294 (1967) .............................................. 13

Other Authorities

BLACK’S LAW DICTIONARY (6th ed. 1990) ................... 6

JAMES BARCLAY, A COMPLETE AND UNIVERSAL

ENGLISH DICTIONARY ON A NEW PLAN

(1782) ...................................................................... 9

Jeffrey Bellin, Fourth Amendment

Textualism, 118 MICH. L. REV. 233 (2019)..... 5, 7, 9

Jim Harper, Escaping Fourth Amendment

Doctrine after Jones: Physics, Law, and

Privacy Protection, 2011 CATO SUP. CT.

REV. 219 (2011–2012). ............................................ 9

Jim Harper, Reforming Fourth Amendment

Privacy Doctrine, 57 AM. U. L. REV. 1381

(2008) .................................................................... 16

N. WEBSTER, AN AMERICAN DICTIONARY OF

THE ENGLISH LANGUAGE (1828) (reprint

6th ed. 1989) .......................................................... 6

Robert C. Power, Technology and the Fourth

Amendment: A Proposed Formulation for

Visual Searches, 80 J. CRIM. L. &

CRIMONOLOGY 1 (1989) ......................................... 11

Constitutional Provisions

U.S. CONST. amend. IV ............................................... 4

INTEREST OF AMICUS CURIAE1

The Cato Institute, founded in 1977, is a nonpartisan public policy research foundation dedicated to advancing the principles of individual liberty, free markets, and limited government. Cato’s Project on Criminal Justice was founded in 1999, and focuses in particular on the scope of substantive criminal liability,

the proper and effective role of police in their communities, the protection of constitutional and statutory

safeguards for criminal suspects and defendants, citizen participation in the criminal justice system, and

accountability for law enforcement officers.

This case interests amicus because it involves core

questions of individual liberty protected by the Constitution and presents an opportunity to improve the

administration of the Fourth Amendment and maintain that provision’s protections in the modern era.

SUMMARY OF ARGUMENT

Suspecting that Daphne Moore’s daughter, Nia

Moore-Bush, was using Moore’s home “as the site for

illegal firearms and narcotics transactions,” the federal Bureau of Alcohol, Tobacco, Firearms and Explosives(“ATF”) began surveilling Moore’s home. App. at

6a–7a. But knowing that the “location of the home

made it difficult for law enforcement to undertake the

physical surveillance of the home,” ATF agents, without seeking a warrant, “surreptitiously installed a

digital video camera near the top of a utility pole

1 Rule 37 statement: All parties were timely notified of the

filing of this brief. Further, no party’s counsel authored this brief

in any part and amicus alone funded its preparation and submission.

across the street from the residence.” Id. at 7a. ATF

agents had access to both recorded and livestream

video and could remotely “pan, tilt, and zoom the camera to better focus on individuals or objects of interest.” Id. The video camera could magnify objects to a

significant level, enough “to accurately capture facial

expressions, details on clothing, small objects in a person’s hands (such as keys or a cigarette), and the license plate numbers of cars parked in the residence’s

private driveway.” Id. at 7a n.3. The ATF continued

this warrantless surveillance without pause for approximately eight months. And eventually, Moore and

her daughter were indicted for various illegal firearms and narcotics transactions.

In a 3-3 deadlock, the First Circuit sitting en banc

was unable to definitively answer whether the ATF’s

investigation violated the Fourth Amendment. Pet

Br. at 2. The two competing concurring opinions from

the court attempted to faithfully apply current doctrine to the facts of Moore’s case. Three judges

thought this Court’s doctrine forbade government

agents from using months-long, round-the-clock video

surveillance to record the activities of people in and

around their homes without violating the Fourth

Amendment. Three judges disagreed.

Both concurring opinions did a workmanlike job of

applying current doctrine, but neither opinion applied

the Fourth Amendment’s explicit terms. They instead

followed the “reasonable expectation of privacy” test.

According to that test, as set out in Justice Harlan’s

concurring opinion in Katz v. United States, a search

occurs when government action upsets a reasonable

expectation of privacy. 389 U.S. 347, 360–62 (1967).

As many members of this Court and other scholars

have recognized, however, the “reasonable expectation of privacy” test is fatally flawed. The test may

seem congenial to justices and judges, who surely put

care into their attempts to assess society’s emergent

views on privacy. But it necessarily requires judges to

use their own views or best estimations about privacy,

and the slipperiness of Justice Harlan’s formulation

is compounded by its essential circularity. Societal expectations may guide judicial rulings, but those rulings in turn guide societal expectations, and so on.

The fundamental question as to whether a Fourth

Amendment search occurred should not be assessed

in this way. Instead, this Court should hew more

closely to the actual text of the Fourth Amendment in

determining whether government action amounts to

a constitutionally cognizable search, and if so,

whether that search was permissible. “The right of

the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated.” U.S. CONST. amend.

IV. Courts should therefore ask the following series of

questions: Was there a search? A seizure? Was any

search or seizure of “their persons, houses, papers,

[or] effects”? Was any such search or seizure reasonable?

Courts can recognize searches using common, semantic understandings of the term. A search is looking over or through something with a purpose of finding something. And here, the highly directed and persistent observation of Moore at her home is a “search”

for evidence against her in the natural sense of that

term.

This literal, textual framework tees up the issue

that is the central focus of the Fourth Amendment:

the reasonableness of government agents in searching or seizing particular locations, persons, or items.

And in this case, the ATF’s search was almost certainly unreasonable. For months, the ATF intentionally and pervasively pried into the details of Moore’s

life at home without any judicial supervision and with

no justification for failing to procure a warrant other

than pure convenience.

To stabilize courts’ application of the Fourth

Amendment and better position them to assess “hightech” cases, this Court should grant certiorari and decide this case using a framework that hews more

faithfully to the language, meaning, and structure of

the Fourth Amendment. The Court can thus give

lower courts, law enforcement, the bar, and all citizens clearer signals and enable judges to address

searches and seizures forthrightly, confidently assessing the reasonableness of government investigatory action.

ARGUMENT

The Fourth Amendment to the U.S. Constitution

commands that “[t]he right of the people to be secure

in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated.” U.S. CONST. amend. IV. Absent confusing doctrine, courts would analyze its elements as follows:

Did the government search or seize anything? Was

any search or seizure of a defendants’ protected

items—namely, of “persons,” “houses,” “papers,” or

“effects”? And finally, was any such search or seizure

unreasonable? When the answer to all three questions is “yes,” then the claimant’s right has been violated. See Jeffrey Bellin, Fourth Amendment Textualism, 118 MICH. L. REV. 233, 254 (2019).

Here, the Court can employ that methodology. For

months the ATF continuously surveilled “roughly half

of the front structure of” of Moore’s home with a video

camera that the ATF “could remotely pan, tilt, and

zoom” “to a significant level of magnification.” Pet Br.

at 4–6 (internal quotation marks omitted). Because

the ATF recorded “the front curtilage of the residence,” app. at 9a, the question of whether it was a

protected item of Moore that was surveilled is easily

disposed of. See Florida v. Jardines, 569 U.S. 1, 5–6

(2013). But the Court should take this case as an opportunity to hew more closely to the language and

meaning of the Fourth Amendment than current doctrine permits in answering whether a search occurred

and whether it was unreasonable. First, the Court

should treat “search” as an ordinary term and conclude that for eight months the ATF searched Ms.

Moore’s home without seeking a warrant. Second, because the ATF had no justification for intruding for

months without a warrant upon Moore’s home—the

“first among equals” in what the Fourth Amendment

protects, id. at 6—the search was unreasonable.

THIS CASE GIVES THE COURT THE OPPORTUNITY TO TREAT “SEARCH” AS AN

ORDINARY TERM.

Adopted since as Fourth Amendment doctrine,

Justice Harlan’s concurrence in Katz has made the

word “search” a term of art, with difficult and unwieldy results. See Carpenter v. United States, 138 S.

Ct. 2206, 2265 (2018) (Gorsuch, J., dissenting) ([“W]e

still don’t even know what the ‘reasonable expectation

of privacy’ test is.”) But at the time of the framing,

“search” was a word with common usage. “When the

Fourth Amendment was adopted, as now, to ‘search’

meant ‘[t]o look over or through for the purpose of finding something; to explore; to examine by inspection;

as, to search the house for a book; to search the wood

for a thief.’” Kyllo v. United States, 533 U.S. 27, 32 n.1

(2001) (emphasis original) (citing N. WEBSTER, AN

AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE 66

(1828) (reprint 6th ed. 1989)).

The Court should return to treating “search” as ordinary term. Even when the claim is that some form

of technology has been searched or used for searching,

rather than looking for “reasonable expectations of

privacy,” courts should dig into whether the essence

of searching is found in the behavior of government

agents. That means examining whether government

agents “s[ought] out that which [was] otherwise concealed from view.” BLACK’S LAW DICTIONARY 1349 (6th

ed. 1990). In this case, the ATF agents unquestionably were seeking to uncover information through their

actions, and the evidence they acquired through their

video camera was information that was not meaningfully exposed to the public.

A. The ATF’s Videorecording Was Conducted

with the Purpose of Finding Something.

The Court has often struggled to apply the Fourth

Amendment in new technological environments. See

e.g., Olmstead v. United States, 277 U.S. 438, 457, 464

(1928) (finding that wiretapping a telephone did not

constitute an unreasonable search or seizure); but see

Katz, 389 U.S. at 353–59 (overruling Olmstead). To be

sure, technology regularly creates new techniques for

revealing evidence or fruits of crime, but the heart of

the “search” concept remains the same. It is that focus

that reflects a “purpose of finding something.” It requires a “degree of conscious effort beyond the visual

and audio scanning that typifies human consciousness.” Bellin, supra, at 257. But at some point, ordinary observation of people and things crosses over to

searching.

Courts often rely on some signal, often an associated seizure, to discern the line between mere observing and searching. Thus, in Arizona v. Hicks, the moving of stereo equipment was the contemporaneous signal of the fact that government agents were not just

observing what was around them but searching for incriminating information. 480 U.S. 321, 324–25 (1987).

United States v. Jones, 565 U.S. 400 (2012) demonstrates how this same methodology can be employed

even in “high-tech” cases. Government agents had attached a device to a car that was not theirs, making

use of the car to transport their device, without a warrant. Id. at 404. There, although the Court referred to

the totality of the disputed government action only as

a “search,” the precipitating physical invasion of the

car was a seizure. Id. at 403; see ACLU v. Clapper, 785

F.3d 787, 823 (2d Cir. 2015) (referring to attachment

of GPS device in Jones as “a technical trespass on the

defendant’s vehicle”). Though small, that seizure of

Jones’s car, in the form of “use,” was a sufficient trigger of scrutiny for constitutional reasonableness. It

facilitated a weeks-long, contemporaneous search for

Jones’s location and signaled the purpose of finding

evidence.

But, as illustrated by Kyllo v. United States, 533

U.S. 27 (2001), there are also pure searches, unaccompanied by a seizure. In Kyllo, agents of the Department of the Interior aimed a thermal imager at the

home of Danny Kyllo. The heat emanations from the

house suggested a marijuana grow operation; the

agents used that information, along with other evidence, to secure a search warrant that confirmed their

suspicions and led to Kyllo’s conviction. Id. at 29–30.

The Court reversed the conviction based on the

search. “We think that obtaining by sense-enhancing

technology any information regarding the interior of

the home that could not otherwise have been obtained

without physical ‘intrusion into a constitutionally

protected area,’ Silverman v. United States, 365 U.S.

505, 512 (1961), constitutes a search–at least where

(as here) the technology in question is not in general

public use.” Kyllo, 533 U.S. at 34.

New technologies like thermal imaging are interesting and attractive, but they need not get special

treatment under the Fourth Amendment. Just as the

trespass in Jones signaled a purpose of finding evidence, thermal imaging in Kyllo showed (among other

things) that the Interior Department’s agents were

intently focused on Danny Kyllo’s house, a constitutionally protected item. They looked over the interior

of the home—through it via inferences—with the purpose of finding evidence.

As this case demonstrates, it is possible for government agents to dedicate the same kind of focused effort by using more familiar technology such as video

cameras. Here, ATF agents “surreptitiously installed

a digital video camera near the top of a utility pole

across the public street from [Moore’s] residence.”

App. at 7a. Without interruption, they recorded her

every coming and going for eight months, as well as

the effects she carried, every visitor she had, the time

and duration of their visits, and more. The government retained the results to digest, analyze, and refer

to at any time. This highly directed and persistent observation provided new facts about Moore’s activities

and associations and permitted inferences about her

and her activities inside the home. The ATF looked

over Moore and her house with a purpose of finding

evidence—which made such activity a search.

B. The ATF’s Videorecording Brought Information out of Concealment.

Individuals can conceal information from the general public through a wide variety of means. Some

such means are physical—an individual can put up a

fence, or, if they have sufficiently large enough property, offset their home far enough from the street to

shield their activities in and around the home from

public view. Others are more abstract, as individuals

can also “rely heavily on the law” to conceal information, “such as when they share information with a

fiduciary or service provider bound to confidentiality

by contract or regulation.” Jim Harper, Escaping

Fourth Amendment Doctrine after Jones: Physics,

Law, and Privacy Protection, 2011 CATO SUP. CT. REV.

219, 230–32 (2011–2012). And when government

agents engage an examination for evidence that uncovers information not readily available to the public,

a search has likely occurred. Bellin, supra, 255, 258–

59 (quoting JAMES BARCLAY, A COMPLETE AND UNIVERSAL ENGLISH DICTIONARY ON A NEW PLAN (1782)

(defining a “search” as “to seek after something lost,

hid, or unknown”).

Sometimes, as Hicks and Kyllo both evince, the degree to which an examination uncovers concealed information is immediately clear. In Hicks, the serial

numbers of the stereo equipment were originally concealed from officers’ view by the opacity of the equipment itself and the orientation of the serial numbers

away from them. 480 U.S. at 325. Moving the stereo

equipment brought information out of its natural concealment. Id. In a similar way, the thermal imager in

Kyllo brought information out of concealment. The

heat emanations of Danny Kyllo’s walls did not appear in the human-visible spectrum; moving the emanations into the visible spectrum using a thermal

imager brought them out of their natural concealment. 533 U.S. at 35–36.

But occasionally, a deeper review of the facts is

needed to determine whether an examination uncovered information that was concealed from the public.

For example, in United States v. Knotts, beeper surveillance technology allowed narcotics officers to

track an automobile from St. Paul, Minnesota to Shell

Lake, Wisconsin. 460 U.S. 276, 278 (1983). Writing for

the majority, then-Justice Rehnquist held that such

surveillance was not a “search” under the Fourth

Amendment in part because “[v]isual surveillance

from public places . . . would have sufficed to revealed

all of these facts to the police.” Id. at 282.

But the target of the officers’ investigation had

used evasive maneuvers on the road to successfully

“foil the efforts of agents trying to follow his car by

sight.” Robert C. Power, Technology and the Fourth

Amendment: A Proposed Formulation for Visual

Searches, 80 J. CRIM. L. & CRIMONOLOGY 1, 33 n. 112

(1989). Thus, while any member of the public might

theoretically have been capable of acquiring the information that the police sought, the whereabouts of the

police’s target were, as a practical matter, only knowable through the use of the use of beeper technology.

Here, the video camera uncovered the activities of

Moore and her guests. To be sure, when viewed as singular acts, many of Moore’s recorded activities in theory could have been perceived by any person walking

by her home. But the natural concealment of time and

the impossibility of personally watching and remembering every act taken around her house hid the totality of this information from the public. Cf. Jones,

565 U.S. at 415–16 (Sotomayor, J., concurring) (noting how “‘limited police resources’” constrains the

ability of law enforcement to observe the activities of

suspects). Days, weeks, and months of observation

could be collapsed into minutes spent by agents interpreting and drawing inferences from Moore’s movements and the objects she carried. The ATF used this

technology and persistent surveillance to acquire information that was otherwise unavailable to law enforcement, the public, or even nosey neighbors.

II.

THE ATF’S SEARCH OF MOORE’S HOME

WAS UNREASONABLE.

After using a textual approach to the Fourth

Amendment to conclude that the ATF searched

Moore’s home, the Court should then find that the

search was unreasonable. The ATF had no justification for failing to get a warrant apart from convenience. Nor is this an example of merely observing

what is in plain view. Sometimes it may be reasonable

for police officer to observe and surveil what is apparent to any nosy person walking by a home. See generally Minnesota v. Carter, 525 U.S. 83 (1998). But that

is not this case. This case involves acquiring a nearperfect picture of Moore’s comings and goings from

her home, as well as her guests, and more. That is

nothing like officers merely paying attention as they

pass by a home.

A. There Was No Reason for the ATF to Search

Moore’s Home Without a Warrant.

“The ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” Brigham City v. Stuart, 547

U.S. 398, 403 (2006). But “[s]ecurity against unlawful

searches is more likely to be attained by resort to

search warrants than by reliance upon the caution

and sagacity of petty officers while acting under the

excitement that attends the capture of persons accused of crime.” United States v. Lefkowitz, 285 U.S.

452, 464 (1932). As such, “reasonableness generally

requires” law enforcement officers to obtain a judicial

warrant to search protected items for evidence of

criminal activity. Vernonia School Dist. 47J v. Acton,

515 U.S. 646, 653 (1995).

The requirement for judicial warrants is especially

crucial when law enforcement officers are searching

an individual’s home. As already noted, the Fourth

Amendment protects many things from unreasonable

searches: persons, houses, papers, and effects. But, as

the Court has repeatedly emphasized, “the home is

first among equals. At the Amendment’s very core

stands the right of a man to retreat into his own home

and there be free from unreasonable governmental intrusion.” Jardines, 569 U.S. at 6. This includes “the

area immediately surrounding and associated with

the home—what [the Court’s] cases call the curtilage—as part of the home itself for Fourth Amendment purposes.” Id. (internal quotation marks omitted).

Thus, warrantless searches of the home and the

area immediately surrounding it are generally unreasonable without a “compelling need for official action

and no time to secure a warrant.” See Michigan v. Tyler, 436 U.S. 499, 509 (1978). The “exigencies of the

situation [must] make the needs of law enforcement

so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.”

Brigham City, 547 U.S. at 403. Otherwise, the Fourth

Amendment “would [be] reduce[d] to a nullity, and

leave the people’s homes secure only in the discretion

of police officers.” Johnson v. United States, 333 U.S.

10, 14 (1948).

The sort of exigencies that are sufficient to justify

warrantless searches are frequently grounded in the

“‘need to protect or preserve life or avoid serious injury.’” Mincey v. Arizona, 437 U.S. 385, 392 (1978).

And so, police officers may make “warrantless entries

and searches when they reasonably believe that a person within is in need of immediate aid.” Id. They may

also enter the home if in “hot pursuit” of an armed and

fleeing suspect. Warden, Maryland Penitentiary v.

Hayden, 387 U.S. 294, 298–99 (1967). Similarly, a

“burning building clearly presents an exigency of sufficient proportions to render a warrantless entry ‘reasonable.’” Michigan, 436 U.S. at 509. And at the outer

bounds of this justification, the Court has recognized

the need for “prompt inspections” of, for example, unwholesome foods “in emergency situations.” Camara

v. Mun. Ct. of S.F., 387 U.S. 523, 539 (1967) (citing

North Am. Cold Storage Co. v. Chicago, 211 U.S. 306

(1908)).

The imminent destruction of evidence in some

cases might also be a sufficiently exigent circumstance. Ker v. California, 374 U.S. 23, 40 (1963). As

such, in a search incident to an arrest, law enforcement may conduct a limited search of arrestees and

the physical objects found on them. United States v.

Robinson, 414 U.S. 218, 236 (1973). But law enforcement may not search the digital data contained in a

cell phone found on an arrestee without a warrant.

Riley v. California, 573 U.S. 373, 386–401 (2014).

Here, the facts of this case present essentially the

opposite circumstances from compelling exigencies

that might make a warrantless search “objectively

reasonable.” The ATF conducted its search of Moore’s

home for eight months. Pet Br. at 2. There was nothing hindering the agents from obtaining a warrant.

And the agents’ failure to procure a warrant had nothing to do with safety or the need to preserve evidence

at imminent risk of destruction. The ATF refused to

get a warrant out of pure convenience. But if administrative convenience allows law enforcement to scour

an individual’s home, then the Fourth Amendment

has truly been reduced to a nullity. See Johnson, 333

U.S. at 14.

B. Moore Did not Meaningfully Expose the Information Gleaned from the Video Camera

to the ATF.

The Fourth Amendment was designed “to place obstacles in the way of a too permeating police surveillance.” United States v. Di Re, 332 U.S. 581, 595

(1948). To effectuate that design, the Court must “assure preservation of that degree of privacy against

government that existed when the Fourth Amendment was adopted.” Carpenter v. United States, 138 S.

Ct. 2206, 2214 (2018) (cleaned up). And so, while ATF

agents might not be expected to “shield their eyes

when passing by a home on public thoroughfares,”

California v. Ciraolo, 476 U.S. 207, 213 (1986), they

can be expected to procure a judicial warrant to monitor with modern technology an individual’s life at

home continuously for months. See Carpenter, 138 S.

Ct. at 2217–18 (concluding that “near perfect surveillance” of an individual’s activities even in public is

categorically different from merely observing a single

activity in public); United States v. Jones, 565 U.S.

400, 430 (2012) (Alito, J., concurring in the judgement) (arguing that the length of time under which

law enforcement surveil an individual matters under

the Fourth Amendment); Florida v. Riley, 488 U.S.

445, 453 (1989) (O’Connor, J., concurring in the judgement) (stating that law enforcement may only use

methods that are a “routine part of modern life” to

surveil the curtilage without a warrant).

To be sure, in Ciraolo and Riley, the Court sanctioned the use of sophisticated technology to search

the curtilages of individuals’ homes under the theory

that individuals have no Fourth Amendment protection in what they “knowingly expose[] to the public.”

Ciraolo, 476 U.S. at 213–15; Riley, 488 U.S. at 455.

But those cases should not govern here. As a threshold matter, the Court’s application of the principle of

exposing information to the public was questionable

in the first place. But regardless, the searches and the

information gathered in those cases are categorically

different from what occurred in this case.

1. The Searches in Ciraolo and Riley were Unreasonable

As noted, the Court has assumed that what “a person knowingly exposes to the public, even in his own

home or office, is not a subject of Fourth Amendment

protection.” Katz, 389 U.S. at 351. Thus when “a thing

is visible (or otherwise perceivable) by authorities acting within law and custom,” the Court has typically

held that “a person cannot make a Fourth Amendment claim against [law enforcement] observing it

and acting on the knowledge of it.” Jim Harper, Reforming Fourth Amendment Privacy Doctrine, 57 AM.

U. L. REV. 1381, 1389–90 (2008). In Ciraolo and Riley,

the Court purported to apply this principle to the use

of intentional ariel surveillance of the curtilage. But

the Court’s application of the principle to the facts

was flawed and should not be extended to this case.

In Ciraolo, Dante Ciraolo’s suburban residential

yard was surrounded by a ten-foot-tall fence. Ciraolo,

476 U.S. at 209. Police received an anonymous tip

that Ciraolo was growing marijuana in his backyard,

but law enforcement could not catch a glimpse of it

behind the fence. Police secured a private plane six

days later, and a trained marijuana expert took photos and made visual observation of Ciraolo’s backyard. Id. at 209–10. The Court upheld this search because in theory any “member of the public flying in

this airspace who glanced down could have seen everything that these officers observed.” Id. at 213.

Riley presented a similar, although not identical

situation. There, Michael Riley lived in a mobile home

on five acres of rural property, with a greenhouse positioned ten to twenty feet behind his home. The property was surrounded by a wire fence and posted with

a “DO NOT ENTER” sign. Riley, 488 U.S. at 448. Riley’s greenhouse—the subject of the search—was not

visible from a nearby road. A police officer secured a

helicopter, hovered 400 feet above the property, and

observed the interior of the greenhouse through a hole

in its roof. Id. at 448. Because law enforcement had

not violated any positive law, a plurality of the Court

upheld the search on the theory Riley “could not reasonably have expected that his greenhouse was protected from public or official observation from a helicopter.” Id. at 450–52.

The Court’s reasoning in both Ciraolo and Riley

was flawed. The Court could not base its holding on

the idea that the public was actually observing Ciraolo’s or Riley’s backyards. That would be fanciful.

Ciraolo, 476 U.S. at 223–24 (Powell, J., dissenting).

Instead, the Court’s reasoning had to assume that, no

matter how unlikely, whenever “a single member of

the public [could have] conceivably” made the same

observations that law enforcement did, individuals

have assumed the risk of their private activities being

observed. Riley, 488 U.S. 445 at 457 (Brennan, J., dissenting). But quite apart from assuring “preservation

of that degree of privacy against government that existed when the Fourth Amendment was adopted,”

Carpenter, 138 S. Ct. at 2214, that approach puts the

privacy of individuals’ at their homes at the mercy of

evolving technology.

Individuals can reasonably be expected to make

some efforts to conceal information and activities that

they wish to keep private. But individuals should not

need to assume great financial or practical cost to secure their privacy against “the advance of technology.” Kyllo, 533 U.S. at 34. Individuals should not be

expected to “disconnect[ ] the[ir] phone from the network” to avoid providing the government with “a trail

of location data” amounting to “a comprehensive dossier of” one’s “physical movements.” See Carpenter,

138 S. Ct. at 2220. And individuals should not be expected to build a ceiling over the curtilage of their

home when they have already built a fence to secure

their privacy.

Similarly, here, for Moore to have avoided police

observation entirely would have been unduly burdensome in terms of cost and practicality. She would have

had to limit the recreational use of her own front yard.

She would have needed to be ever cautious in the handling of packages and the invitation of guests into her

home. She may have needed to forgo the invitation of

guests at all. And she would need to install security

fences of a sort atypical for her area at cost to herself.

2. Ciraolo and Riley are Distinguishable from

this Case

Whatever the merits of Ciraolo and Riley in principle, this case is very different. The intrusion into the

home was much greater here, and the information

gathered was of a “qualitatively different category” of

information. Cf. Carpenter, 138 S. at 2216. Ciraolo

and Riley should therefore not govern the outcome of

this case, even assuming they were rightly decided in

the first place.

First, unlike in Ciraolo and Riley, the extensive

video surveillance at issue here would allow the ATF

to draw detailed inferences regarding what occurred

within the home. Cf. Kyllo, 533 U.S. at 36 (reasoning

that the use of technology to draw detailed inferences

about activity inside the home is problematic under

the Fourth Amendment); United States v. Karo, 468

U.S. 705, 716–19 (1984) (same); Jardines, 569 U.S. at

17–24 (Kagan, J., concurring) (same).

There is no possibility of drawing inferences regarding what occurred within the home from quick

visual surveillance of the curtilage. But here, prolonged video surveillance of the curtilage could expose

“familial, political, professional, religious, and sexual

associations.” Jones, 565 U.S. at 415 (Sotomayor, J.,

concurring). And the ATF’s camera “could discern the

presence of a person looking out the front windows of

the house and see inside the front of the garage when

its door was up.” App. at 8a. A camera which can read

license plate numbers can plausibly read package

slips. App. at 150. Such observation exposes a citizen’s

“spiritual nature,” “feelings,” “intellect,” “beliefs,”

“thoughts,” “emotions,” and “sensations.” Stanley v.

Georgia, 394 U.S. 557, 564 (1969) (quoting Olmstead

v. United States, 277 U.S. 438, 277 U.S. 478 (1928)

(Brandeis, J., dissenting).

Second, ATF’s 24-hour-a-day, eight-month long

surveillance inevitably captured the movements of

uninvolved third parties. ATF’s pole camera captured

“the license plate of every car that stopped by” and

“the face of every visitor.” App. at 84. Searches of such

“a long and continuous duration” have been held unconstitutional even with judicial authorization. Berger v. New York, 388 U.S. 41, 59 (1967) (invalidating

a New York wiretapping statute authorizing 24-hour

surveillance over a two-month period with judicial authorization). Where “the conversations of any and all

persons coming into the area covered by the device”

may be “seized indiscriminately and without regard

to their connection with the crime under investigation,” even a warranted search lacks sufficient particularity if it lacks adequate judicial supervision. Id. at

59. What was true of the capturing of conversations

in Burger is true of the capturing of identities and

movements as well.

Third, this protracted surveillance constitutes “a

too permeating police surveillance.” Di Re, 332 U. S.

at 595. The Court has yet to establish a bright-line

cutoff as for when continuous subject observation using electronic devices is too long. But the Court has

nevertheless found much shorter periods of two

months, Berger, 388 U.S. at 59, twenty-eight days,

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

seven days, Carpenter, 138 S. Ct. at 2226, to be too

pervasive under the circumstances of the respective

cases. Government agents staring directly at the front

door of a person’s home without pause for two-thirds

of the year stands clearly on the wrong side of this

Court’s rough temporal line for continuous technological surveillance under the Fourth Amendment’s reasonableness requirement.

CONCLUSION

For the foregoing reasons, we urge the Court to

grant the petition for certiorari, adhere to the framework that the text of the Fourth Amendment demands, and find that the ATF conducted an unreasonable search of Moore’s home for eight months.

Respectfully submitted,