ARLINGTON, Va.—If police point a camera at your house and record you for eight months straight without a warrant, does the Fourth Amendment have anything to say? The 1st U.S. Circuit Court of Appeals recently said “no,” in a case called United States v. Moore-Bush. But in a new amicus brief supporting a petition for Supreme Court review, the Institute for Justice (IJ) argues that the answer is “yes.” 

IJ filed a similar brief supporting Supreme Court review in a virtually identical case out of the Seventh Circuit last year. Like last year’s case, Moore-Bush asks whether the government’s spying was a Fourth Amendment “search.” 

“Common sense tells us that when police point a camera at your house and spy on you for eight months, they are searching for something,” said IJ Attorney Josh Windham. “But courts don’t currently take a common sense approach to this issue. Instead, they ask whether ‘society’ would find your privacy expectation reasonable—an approach that all too often produces results most Americans would find shocking.” 

In 2017, ATF agents placed a surveillance camera on a pole across the street from Daphne Moore’s home. At the time, they suspected Moore’s daughter of dealing drugs and guns—but they needed evidence. So they watched, using the camera to record Moore and her daughter entering and leaving the home for eight straight months until, at long last, they had enough to get a warrant to search the home. 

Moore and her daughter were ultimately prosecuted, and they moved to suppress the evidence acquired by the cameras. They argued that eight months of warrantless video surveillance violated their Fourth Amendment rights. But earlier this year, the First Circuit rejected that argument. 

While the court was divided on why Moore and her daughter should lose, what carried the day was three judges’ conclusion that the video surveillance was not a Fourth Amendment “search.” In their view, Americans cannot reasonably expect privacy from surveillance of the outside of their homes—and that is the end of the matter. 

“Our brief urges the Supreme Court to take this case and adopt a different approach—one that doesn’t depend on judges’ subjective views of how much privacy we can reasonably expect,” said IJ Litigation Fellow Christian Lansinger. “When the Fourth Amendment was adopted, the word ‘search’ had a simple definition: a purposeful, investigative act. By that standard, pointing a camera at somebody’s house for eight months to look for evidence is plainly a search. There’s really no better word for it.” 

As technology has advanced, judges have invented more and more loopholes for the government to snoop on Americans without a warrant. That’s a big reason why IJ recently launched its Project on the Fourth Amendment, which aims to restore all Americans’ right to be secure in their persons and property from unreasonable government intrusions. As part of that effort, IJ is currently challenging warrantless drone surveillance in Michigan and the warrantless installation of a camera on private land in Pennsylvania.