and this case arises from the fact that from the period of january thirtieth two thousand and fifteen through april twentieth of two thousand and fift was covert it was done without their consent and it was done on their property it was done on the neighbor's property the neighborhood sat in the yard and looked and it's the same amount of invading an expectation of privacy well everyone practically every single case that is considered well you rely on them but you may rely on appropriately ok and that's why as well all the other cases involv have technology that enhances one's ability to appreciate what's going on inside someone's home thermal imaging things like that of what circuit or what's case an arson it is said that the simple observation by video camera that doesn't see anything differently and one normal citizen would see is a search well it really hasn't been considered at least but hasn't been considered it in and in that case that is exactly the same as yours well the analysis is compelling in that case it was able what was the methodology used in that case well there in that case the court focused in all of these capability within that case i don't i'm not sure that there was your honor i do know that what the analysis focused on the fact that there was a home at issue it says which distinguishes it from these  open field cases it was called bert it was look try mickey it was continuous it involved in this case also involves the fact that my client operated their practice ask the court to consider one if one drew their curtains after curtains cause one would see what any person on the street could see through the window well that's part of the problem here your honor is that it was covert so there that no one is going to be peer into every window of their house and videotaping what occurs but day in and day out i buy my you know i was a little boy my mom is they don't stand in front of the window and and so i don't understand i don't understand how the fact that it's overt i mean if you going to someone normally doesn't stand in front of someone or look inside people's windows but if people have windows and you're standing on the side of the street i don't understand how that becomes a search while your mom says those ten in front of the window she's making a constitutional assertion there about the echo she's is because people might be looking into not violating the constitution that might just be doing what people do but what these cases know your honor is that this is not simply a snapshot it's not a situation where somebody is jumping over a fence jones's takes off on the fact that there was a yes that the g p s was was attached to a car in violation it was a trespasser the individual right so suddenly ours analysis may be interesting but well i would say in response to  that privacy mit may very well cover cases of surveillance of a factual question you made a representation in your pleadings of the cameras first one neighbor then the second neighbor across the way also agreed to the videotaping that they were looking directly through the windows and that in fact almost every room was exposed for a period of about three  to amend the complaint so there would be no ambiguity about this before the motion to dismiss was even made and we made very specifically clear that it was a surveillance into every room of the house inside of the house as well as the girdle which your honor the justice to my if i may quote from davis said that the awareness that the government may be watching chills associational and expressive freedoms in the government's un or track may alter the relationship between citizen and government in a way that is inimical to democratic society and he did i i've read the ok would it be any different if they had actually placed police officers there and did the same thing if they place police officers inside the neighbor's house your honor where the cameras inside the neighbors they were there were positioned up on the neighbors so it they were hearing they were positioned in the same positions as the cameras there were police officers and they just did it around the clock would you would you would you still have a case it's so that the police officers were there twenty four hours away  at the something the particular case he actually talks about his real concern about the privacy issues based upon extended period of time in which that is second duck in fact he talks about twenty eight days being a very significant extension of time as to the normal search basically i mean that are you relying at least in part upon the fact that this was a three month extensive search the people's windows i mean not stop during any time of that period of time and that essentially almost suggests they sliding scale question as to whether something of the sort would be a search  for purposes of the fourth amendment what a person voluntarily exposes to public view does not constitute a search under the fourth amendment what a person knowingly do the question actually even if that was just asked about the timing so this is th months right the windows of the the in the inspection of the video is through the windows i guess most of the windows of memo go in those three months where do you draw the line between whether this is a essentially continue to surveil a piece of property including the inside of the house for six months a year i mean is there a is there a sliding scale here is wh not your honor it merely alleges that officers went to neighboring properties and apparently with the permission of these neighbors installed these video cameras that the cameras so many other cases are elevated  the cameras are in a way keep of zooming in and seeing in greater detail on what was going on inside than what a normal citizen would see from the street no such allegations foods just use the continuous nature of the parties  does it say the windows that we're not facing the street were viewed frankly around or the many complaint does not make any specific allegations as to which windows if any the cameras were capable of viewing it merely  and neighbors on the back yard in their backyard or cameras were placed there a look in the back of a house no again no specific allegations concerning placement in a down to find the bet that the backyard had a fence around it that was  blocked the view of the public from the back of the house no your honor no allegations concerning fencing shrubbery trees anything of that nature and you opposing counsel just said the judge thompson allowed them to amend the pleadings to essentially represent that the video imaging was actually going through all of the windows were closed to all of the windows is not correct judge thompson did permit appellant's to amend their complaint this was after in fact we had filed a motion to dismiss the original complaint and the arguments from the original motion to dismiss rationally applied to the amended complaint the amended complaint merely allege that the alleged surveillance captured details of john elson borgs working wife and allegedly those of their patients who visited this did they met at their home office but there were no further allegations concerning the specific placement of the cameras the specific windows or any specific parts of the property that the surveillance allegedly depicted no allegations concerning any fencing or any shrubbery or anything installed around the  raised as soon as possible our initial view of the pleadings was such that at the time we were not sure that the court would you know what entertain qualified immunity or might treat it as a motion for summary judgment pleading show your honor that allegedly surveillance was taken for three months there's no allegations that anything became of the surveillance in the sense that there are no allegations that the officers used t to obtain an arrest warrant there are no allegations that there was no warrants short of any time there's no there's no allegations about that correct can i ask about the use the standard practice of the chief ca assertions and allegations concerning allegedly unconstitutional or custom with respect to the town of westport when it comes to the use of surveillance video surveillance there are no specific allegations about any particular policy or how it's basis so it as has been discussed what a person knowingly exposed to public view even the person's home and the supreme court has recognized this does not garner fourth amendment protection generally the police are free to observe whatever may be seen from the place where they are lawfully entitled to be and as the pleadings in this case show is that it is there is a significant difference between inspection of a just a general background of our back yard as opposed to something within the home or close of the curtilage and i'm thinking about the serrano case which was the sunday quite a while ago but there was a flight over a backyard and the supreme court made a very clear distinction between the the the subject matter of where they were where the the shock of the pictures went and said you know this one this was this was just the backyard and so that's less of a privacy interests but when you get within the curtilage and in fact when you get a close to the house that it's it suggests that there must be a greater degree of privacy in those particular areas is that a matter of concern the fact that there is a distinction between you know looking into the backyard as opposed to looking into the inside of the house i don't necessarily believe that there is your honor and i think the reason for that is  well certainly if if the government physically occupies property in the sense that it trespasses on plaintiffs or defend its property or as was the case in united states versus jones it installs a g p s monitoring device on somebody's effects or property that they below aspects of the defense property they're exposed to public view that anybody could see from that distance for in this case where surveillance footage taken from neighboring properties captured details where there are no allegations that it was not observable from those same properties i don't believe that concern is recognized because the plaintiff or the defendant just made the decision decision to allow that to be subject to view from publicly privacy in regard to walk or who could be looking through windows if in fact the viewing was in fact over an extended period of time i would say your hon r that that is is a risk that somebody runs in in light of the supreme court's in the second circuit's case law and the case law is clear that when somebody exposes details of their home or property to public few through  window whatever it may be and law enforcement is lawfully observing it from a vantage point where they're entitled to be it's not a search of the fourth amendment and it doesn't receive a for them it's protection thank you  his favor but if it is from those facts especially since this is this particular court is recognized in irish lesbian and gay organizations versus giuliani in a civil rights case that's particularly so fact pleading requirement we set these cameras for point inside the house and saw what was inside of the house and the curtilage the angle of the camera and so forth that's a fact  and the camera saw them that would be illegal search yes oh ok so ok so you're saying that even if even if they're outside the house and they're standing in the front yard on the street not inside the house where where that where whatever they say to each other is private but where that is standing in the front yard and these cameras pick up something that that's federal but in any event so you're saying it would you don't try distinction between that and and looking through a window and seeing the exact same count well it will say that in the cases that have considered this look first of the continuance continue its electronic surveillance so that in the words as justice to my it generates a precise comprehensive record of appropriate versus public movements that reflects a wealth  butter family political professional which is important here religious in sexual associations in the government brickies campaign versus new york for its fourth amendment arrest case the supreme court made a very clear distinction between the expectation of privacy within the home as opposed to within the curtilage or outside of the home and they basically represented or found that when you arrest somebody within the home that is a higher level of expectation and there's a more significant requirement of proof to justify that kind of invasion of privacy and why doesn't that same principle apply when you're asked the distinction about whether it's different in the home as opposed to in the viet yard isn't there a yes major difference between those yes in the end what i was about to say is that the cases that have considered this said yes cartilage is protected but especially the home when there is appearing inside of the home and in one case it was a question on a summary judgment motion whether they could really look inside the home but they could see the cartilage