Massachusetts Supreme Judicial Court to Hear Police Surveillance Case 

Under the Fourth Amendment and the United States Supreme Court precedent, there is a reasonable expectation of privacy from government intrusion that all Americans enjoy. The home is one of the most sacred places when it comes to privacy. It is a place that is only subject to government intrusion with a warrant. However, what if the government intrudes into the home not physically, but by camera? The Massachusetts Supreme Judicial Court heard arguments next week in the case of Commonwealth v. Comenzo.  This case was argued on October 6, 2021.  

What happened in the case? 

In 2014, the defendant was indicted for possession of child pornography, and dissemination of visual material of a child in a state of nudity or sexual conduct. He was later charged with one count of possession of child pornography. In 2014, when state police were investigating the defendant, police received a tip that the defendant’s Tumblr blog contained images of child pornography. The police learned that the blog belonged to the defendant and obtained a search warrant for his apartment. On October 7th, 2014, police excited the search warrant where they arrested the defendant and seized electronic devices which contained images of child pornography. 

In the weeks prior to the arrest, the officers conducted in-person surveillance of defendant’s apartment. On September 18th, 2014, officers made a written request to install the pole camera because officers were not certain of what unit in the apartment Comenzo was residing and hoped the pole camera would allow them to determine this. The pole camera was later installed to the top of a utility pole across the street from the apartment complex. This camera provided a view of the entire front of the building, the porch, front door, and the second and third-story windows at the front of the building. The camera operated 24/7 and allowed officers to see at all times from another location. The camera can zoom in and out, and tilt up and down. 

Despite this advanced technology, the Massachusetts State Police have no standard operating procedure for pole cameras. There is no policy that places any limit on the time period the camera can record footage for or anything that places a limit on how long pole camera footage can be stored for. The police are also allowed to store pole camera footage for however long they want. This great power and intrusion on private life go unchecked. 

The defendant seeks to suppress the pole camera evidence. The defendant, like many people, reasonably expects the police are not monitoring his home at all hours. The pole camera was in effect for 17 days, which constitutes a search under Massachusetts law. 

The defendant argues that because these cameras are advanced and operate at all hours, the standard for violating privacy should be different than that of conventional surveillance. However, the appellate court sided with the state and determined that the camera evidence was rightfully admitted. 

It will be interesting to see what happens in the coming weeks as this case has oral arguments. Hopefully, the Massachusetts Supreme Judicial Court finds the defendant’s argument persuasive and creates a precedent that will protect people from breaches of privacy in the future. 

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