PEABODY — The Supreme Judicial Court on Thursday ordered that from now on, Massachusetts police who want to use cameras mounted on poles outside a suspect's home to conduct surveillance will have to first get a warrant. 

The court, in a unanimous decision involving three men charged as part of an alleged North Shore drug ring, concluded that the long-term use of such cameras amounts to a search under the state's constitution. 

"If the home is a 'castle,' a home that is subject to continuous, targeted surveillance is a castle under siege," Justice Barbara Lenk wrote for the court. "Although its walls may never be breached, its inhabitants certainly could not call themselves secure."

"Without the need to obtain a warrant, investigators could use pole cameras to target any home, at any time, for any reason," Lenk wrote. "In such a society, the traditional security of the home would be of little worth, and the associational and expressive freedoms it protects would be in peril."

The decision came in the case against three men, two from Peabody and one from Lynn, charged in an alleged large-scale heroin, fentanyl and oxycodone distribution ring in 2018. 

Pole cameras, including one that was in place for five months, were installed outside the homes of Nelson Mora in Lynn and Randy Suarez in Peabody, in 2017 and 2018. The investigation, led by the Attorney General's office, ultimately led to charges against 13 people and the seizure of 2 1/2 pounds of heroin and fentanyl, hundreds of pills and $415,000 in cash. Seven people, including Mora, Suarez, and Lymbel Guerrero of Peabody were later indicted. 

Lawyers for Mora, Suarez and Guerrero moved to suppress evidence in the case on the grounds that investigators should have obtained a warrant for such long-term surveillance. But now-retired Judge Timothy Feeley disagreed, pointing to a long history of courts finding that pole-mounted cameras are not a violation of the Fourth Amendment against unreasonable searches.

The Supreme Judicial Court on Thursday came to a different conclusion. The court acknowledged the holdings of other courts — most recently the federal First Circuit Court of Appeals in June, which backed the use of pole camera surveillance outside the home of a Hampden County court clerk and her daughter, who were later charged by the U.S. Attorney's office with participating in a drug and gun dealing operation and are awaiting trial. And it acknowledged that police have been using such cameras for at least 30 years. 

But the court concluded that the Massachusetts state constitution's Declaration of Rights provides greater protection than the United States Constitution.

'A far richer profile'

The SJC rejected arguments by the prosecution that the use of pole cameras was akin to traditional police surveillance, such as officers watching a home from a van or another building, or that the traditional doctrine of what is considered "public view" as fair game, applied. 

"All told, the targeted, long-duration pole camera surveillance of Mora's and Suarez's homes provided the police with a far richer profile of those defendants' lives than would have been possible through human surveillance," Lenk wrote for the court.

"A reasonable person must anticipate that a neighbor could observe some of the comings and goings from his or her residence," Lenk wrote. "Even the prototypical nosy neighbor, Gladys Kravitz from the 1960s television show, 'Bewitched,' however, occasionally put down her binoculars and abandoned her post at the window to eat and sleep." 

The court also rejected suggestions that the defendants could have erected fences or walls to shield their homes from surveillance, saying that the protections against unreasonable searches should not depend on whether someone has money to build a fence.

The court stopped short of tossing out the evidence against the three, finding instead that because police relied on the existing law at the time, they would allow the attorney general to now try to convince a judge that he or another judge would have issued a warrant at the time the cameras were installed.

Mora's attorney, Stephen Judge, praised the court's decision on Thursday as a win for privacy and government accountability. 

Police will now be required to document the basis for their request and persuade a judge to give them permission to install a camera. "The impact of that can't be underestimated," said Judge, a Salem attorney. "Without that decision, law enforcement could put a camera outside of anyone's home for any reason." 

"There was zero ability to oversee the employment of these cameras," said Judge. Now, there will be a record, even if only after the fact, to show when, where and why those cameras are being used.

"This decision puts the brakes to the runaway use of these cameras," said Judge. 

The attorney general's office declined to comment on the ruling because the underlying case is still pending. 

Courts reporter Julie Manganis can be reached at 978-338-2521, by email at jmanganis@salemnews.com or on Twitter at @SNJulieManganis. 

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