Boston Lawyer BlogThe Fine Line Between “Plain View” and Privacy Invasion: Commonwealth v. Yusuf
The use of body-worn cameras by the Boston Police Department has sparked controversy since its pilot program in 2016 and its official implementation in 2019. While the City and the Police Department have marked this move as an effort to be more transparent with the community, citizens claim that such a goal of transparency cannot be achieved within a broken system. Boston Police Department has equipped more than 1,000 officers over the city with body cameras, yet there have been minimal compliance checks and investigations into the misuse of these cameras and footage. Instead, there are a handful of loopholes that permit officers to use the footage at their discretion, putting civilians’ lives at risk for privacy invasion. To further complicate the limitations police officers have in using their body-worn camera footage, the official Body Worn Camera Policy of the Boston Police Department contains ambiguous and few rules regarding the improper use of footage. In Sec. 4.2 of Rule 405, the department enumerates five improper uses of body-worn camera footage; none of which emphasizes a civilian’s privacy nor prohibits the use of the footage for other cases than the one from which the footage originated.
Earlier this month, the Supreme Judicial Court defined the parameters officers have in using their body-worn camera footage in Commonwealth v. Yusuf, holding that footage may not be used in investigative purposes unrelated to the incident giving rise to its creation. The Court did, however, also clarify that the use of body-worn cameras within one’s home is not a search in the constitutional sense because it documents an officer’s plain view observations during their lawful presence in the home.
In Yusuf, police officers responded to a call about a domestic disturbance and request the removal of an individual at the defendant’s residence. One of the officers on site was equipped with a body-worn camera, which recorded the areas of the home through which he moved, as well as his interactions with anyone present in the defendant’s apartment. Later, an officer downloaded a copy of the body-worn camera footage to a department computer and notified a detective in the youth violence strike force, who had been investigating the defendant for firearm offenses, that they were in possession of a copy of the video footage. The youth violence strike force detective and other members of the unit had been tasked with finding a basis for obtaining a search warrant of the defendant’s home and had been following one of the defendant’s social media accounts over the course of their six-month investigation.
Two weeks after the domestic disturbance call, the youth violence strike force detective used the body camera footage to establish the location of a social post depicting the defendant apparently holding a firearm. Subsequently, the detective sought and obtained a search warrant for the defendant’s residence. The warrant affidavit cited floral-printed curtains that adorned the bedroom window in a social media post to be recorded in the body-worn camera footage. Using the warrant, officers were then able to seize narcotics and a firearm in the house and arrest the defendant and his brother.
The situation in Yusef demonstrates a scenario where civilians may be more at risk for police exploitation than protection, the purported goal of the body-worn camera policy. In its decision, the Supreme Judicial Court highlighted that despite the perceived benefits of body-worn cameras, unregulated use of the cameras has the potential to invade privacy in a manner inconsistent with society’s reasonable expectations. A person’s home is among the areas expressly protected under both the Fourth Amendment and Art. 14, but the plain view doctrine holds that there is no search under these provisions when an officer observes something in “plain view,” such as the initial scan of the defendant in Yusuf’s home.
The Court’s decision in Yusuf to permit the recording from the body-worn cameras comes as no surprise based on prior jurisprudence, but the decision to place limitations on the future use of such recordings is a victory and further step in scaling back the extraneous authority of the police. In its reasoning, the Court asserted that “[t]he 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.” Additionally, the Court noted that the ability of police officers, at any later date, to trawl through video footage to look for evidence of crimes unrelated to the officers’ original lawful presence in the home when they were responding to a call for assistance is the virtual equivalent of a general warrant.
While video recording technology is hardly new, equipping officers with body-worn cameras is relatively recent and substantially unregulated by the police departments. The decision in Yusuf appropriately limits the police use of body-camera recordings, and provides some protection to civilians.
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