Nos. 19-1582 19-1625 UNITED STATES,

Appellant,

v.

NIA MOORE-BUSH, a/k/a Nia Dinzey,

Defendant, Appellee.

Nos. 19-1583 19-1626 UNITED STATES,

Appellant,

v.

DAPHNE MOORE,

Defendant, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Barron, Chief Judge, Lynch, Howard, Thompson, Kayatta, and Gelpí, Circuit Judges.

Randall E. Kromm, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellant. Judith H. Mizner, Assistant Federal Public Defender, for appellee Nia Moore-Bush, a/k/a Nia Dinzey. Linda J. Thompson, with whom John M. Thompson and Thompson & Thompson, P.C. were on brief, for appellee Daphne Moore. Matthew R. Segal, with whom Jessie J. Rossman, Nathan Freed Wessler, Brett Max Kaufman, Andrew Crocker, Samir Jain, Gregory T. Nojeim, and Mana Azarmi were on brief, for amici curiae American Civil Liberties Union, American Civil Liberties Union of Massachussetts, Center for Democracy & Technology, and Electronic Frontier Foundation in support of defendant-appellees. Bruce D. Brown, with whom Katie Townsend, Gabriel Rottman, and Mailyn Fidler were on brief, for amici curiae Reporters Committee for Freedom of the Press and Eight Media Organizations in support of defendant-appellees.

____________________

Opinion En Banc

June 9, 2022 AMENDED OPINION

 The full version of this opinion was filed on May 27, 2022,and remains on file, under seal, in the Clerk's Office. Per curiam. The district court order granting Daphne Moore and Nia Moore-Bush's motions to suppress is unanimously reversed by the en banc court. We remand with instructions to deny the motions to suppress.

- Concurring Opinions Follow -

- 3 - BARRON, Chief Judge, THOMPSON and KAYATTA, Circuit Judges, concurring. The Fourth Amendment to the U.S. Constitution "seeks to secure 'the privacies of life' against 'arbitrary power,'" Carpenter v. United States, 138 S. Ct. 2206, 2214 (2018) (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)), by "plac[ing] obstacles in the way of a too permeating police surveillance," id. (quoting United States v. Di Re, 332 U.S. 581, 595 (1948)). It is with that "Founding-era understanding[] in mind," id., that we must determine in these consolidated appeals whether the Fourth Amendment places any limits on the use by law enforcement of the kind of surveillance -- unimagined in 1789 -- that it engaged in here: the continuous and surreptitious recording, day and night for eight months, of all the activities in the front curtilage of a private residence visible to a remotely-controlled digital video camera affixed to a utility pole across the street from that residence.

The Fourth Amendment issue concerning the use of such surveillance arises here in connection with the criminal cases that the federal government brought in the United States District Court for the District of Massachusetts against Nia Moore-Bush and her mother, Daphne Moore, on federal drug- and gun-related charges. Each defendant moved in the District Court to suppress on Fourth Amendment grounds all evidence derived from the digital compendium created through the long-t