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Court sets limits on what police departments can do with the terabytes of body-camera video they are now collecting and storing

Police can't use stored body-camera video collected inside a home in one case as evidence to arrest somebody in another case without first getting a warrant to search it, the Supreme Judicial Court ruled today.

Otherwise, the court concluded:

A database of body-worn camera footage of the places where officers are called upon to assist residents, reviewable at will and without a warrant, for unrelated investigations, renders "technologically feasible the Orwellian Big Brother." See United States v. White, 401 U.S. 745, 770 (1971) (Harlan, J., dissenting).

In a case involving a Dorchester man convicted of unlawful gun possession, the state's highest court said that body-camera video of the inside of a person's house from one call cannot simply be called up by detectives as part of their investigations into matters unrelated to that call, that they will first need to prove to a judge that they need a search warrant to review such video. The ruling did not overturn the conviction but instead means a Suffolk Superior Court judge has to hold a hearing on whether the detective still had enough of a case for the search warrant that led to the man's arrest without the video evidence.

The ruling involves video originally recorded by an officer responding to a domestic-disturbance call in the Franklin Field apartment of Abdirahman Yusuf on Feb. 10, 2017. The court said the initial recording was fine because the officer had "a lawful presence in the home," due to the call - in which Yusuf's sister called 911 for help in removing Yusuf's girlfriend. The issue for the court is what happened two weeks later, when a gang-unit detective, who was separately investigating Yusuf for possible illegal gun possession, called up that video and used it to obtain a warrant that led to Yusuf's arrest and conviction on gun charges.

That review resulted in an additional invasion of privacy, untethered to the original authorized intrusion into the defendant's home; absent a warrant, it violated the defendant's right to be protected from unreasonable searches guaranteed by the Fourth Amendment and art. 14.

The gang unit had had its eye on Yusuf since 2016 for gun possession, in part because of Snapchat videos showing him posing with what appeared to be guns - although they never found any on him during several stops-and-frisks, according to a brief filed by his lawyer.

After the officer with the bodycam returned to his station, he or another officer burned the video onto a DVD - and whoever did so alerted the gang unit, in case it might prove useful in its investigation of Yusuf.

And it did. A couple of weeks after that call, Yusuf posted a Snapchat video that showed him holding what looked like a gun in a bedroom with a distinctive floral-print curtain. A gang-unit detective who had been looking for evidence with which to convince a judge to sign a search warrant, then retrieved the domestic-disturbance bodycam video and went through it - and found footage showing a bedroom with the same floral-print curtain. Because Snapchat videos generally only last for 24 hours, that meant the gun video had the sort of recency judges require for a warrant.

Thereafter, the detective sought and obtained a search warrant to search the defendant's residence and to seize, inter alia, weapons, weapons-associated objects, and identifying documents. The warrant affidavit stated that the detective had probable cause to believe weapons would be found at the residence, which was known to be the defendant's address. The affidavit asserted that there had been numerous social media posts showing the defendant with firearms. The affidavit further explained that the curtains visible in a recent post matched those in the bedroom seen in the body-worn camera footage of the defendant's home.

After executing the search warrant, officers found narcotics and a firearm in the house, and ammunition and marijuana in what they believed to be the defendant's brother's bedroom. The defendant and his brother were arrested at that time.

At a jury-waived trial, Yusuf was found guilty of unlawful possession of a firearm and unlawful possession of ammunition and sentenced to two years in jail. He then appealed, arguing the use of the bodycam video - both its initial creation and its use in the separate gun investigation - violated his rights against unreasonable search and seizure and that if that warrantless use of the video was illegal, then so was everything that resulted from it, specifically the search warrant and his arrest and conviction.

The court disagreed with Yusuf's attorney that the initial collection of the video, by an officer responding to a call from one of the apartment's residents - Yusuf's sister - was improper without a warrant. Because the officer had a "lawful presence" in responding to a call by a resident, the videoing was constitutionally OK and no different than the officer seeing things "in plain view" with his own eyes.

The camera physically intruded only to the extent that the officer himself already lawfully had intruded, and the field of view of the
camera, which was worn on the officer's chest, went no further than the officer's own unaided view.

But the court agreed that the subsequent use of the video as part of the gun investigation violated Yusuf's rights.

Unlike the recording of the plain view observations attendant to the initial and lawful entry into the defendant's home, this subsequent review for investigatory and unrelated reasons cannot be justified as a limited extension of the officer's plain view observations. The home is not a place to which the public has access, or where an individual might expect a recording made during a lawful police visit would be preserved indefinitely, accessed without restriction, and reviewed at will for reasons unrelated to the purposes of the police visit. See Mora, 485 Mass. at 368, citing Almonor, 482 Mass. at 42 n.10. As the court remarked in Balicki, it is one thing to be present in a home to assist its resident and "of necessity being in a position to cursorily notice many of its contents"; it is quite another "to create a permanent record of [the contents of the home traversed by the responding officers] for review by police, prosecutors, expert witnesses, and others at any time in the uture." Balicki, 436 Mass. at 12. Such a "record can be played and replayed as many times as necessary or desired, and the images can be focused or enlarged to show each detail of every item in that citizen's home."

The court continued:

The Fourth Amendment and art. 14 were enacted, in large part, in "response to the reviled 'general warrants' and 'writs of assistance' of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity." Mora, 485 Mass. at 370, quoting Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018). The ability of police officers, at any later point, to trawl through video footage to look for evidence of crimes unrelated to the officers' lawful presence in the home when they were responding to a call for assistance is the virtual equivalent of a general warrant. ...

The Fourth Amendment and art. 14 would afford little protection if they permitted officers to return to the police station following a call for assistance that was video recorded, store the resulting video footage of a home's interior, and then retrieve it in connection with an unrelated investigation, "trawl[ing] for evidence with impunity" through the recording of the inside of a home.

Filings, video of oral arguments in the case.

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Comments

The public made the police wear the cameras. Haha!

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Voting closed 28

Could someone make a public records request and see it? If not for this domestic violence case, how about other cases of violence/crime? What about if it is introduced as evidence? (If someone knows, please answer)

I am glad there are growing restrictions with all the big brother data, but there have to be logical consistencies, and I do see an issue that one officer is required to tape something, and the other officer - without a warrant- is precluded from looking at what was required to be created.

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Voting closed 9

had the detective shown the video to the officers and then asked, are those the curtains inside of that residence, and the officer said "yes that is the inside of that residence". This would not have been an issue... can't see why the camera is a big deal then.

The public wanted these cameras, this idiot posted a video online of himself with the gun inside of the residence and shared it online. The court is going out of its way to be idiotic here.

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Voting closed 19

That was the issue.

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Voting closed 12

This is new ground so the cops will need to understand the pathway to get to a conviction that will stand when it involves use of bodycam footage like this. If instead of basing that part of the warrant on the DVD the cop burned the detective had just asked the cop(s) who had been in the house to look at the snapchat to see if they recognized the background as being the address of the suspect it would be a different story. That way the detective could have used an affidavit from the cop(s) as evidence for the warrant and the conviction probably would have stood (assuming the warrant was granted and subsequent actions were the same).

It now appears that this judge's ruling will lead to a two-tier warrant approach where they would need to get one to review the footage to confirm that the snapchat video was shot at the same address and then go back to get another one to actually go to the house and search it.

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Voting closed 7

I hope Boston voters are aware of that Andrea Campbell was the Boston Pol, alonq with Lydia Edwards, who insisted on this Pandora's box being open by BPD in 2016. This is an example of just how short sighted she is about rights of the communitty as a whole. She wants police punished and did not care about any collateral damage.

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Voting closed 10