Colorado Supreme Court Finds Prolonged Pole Camera Surveillance Unconstitutional

Ralph L. Carr Colorado Judicial Center
The Colorado Supreme Court on Sept. 13 concluded that long-term video surveillance of a suspect’s yard constituted a warrantless search under the Fourth Amendment.

Police violated a Colorado man’s constitutional rights by videotaping his property for months from a pole-mounted camera, according to a Sept. 13 decision by the Colorado Supreme Court.

The high court upheld a 2020 decision in which the Colorado Court of Appeals found that police violated the Fourth Amendment rights of Rafael Tafoya when they used a utility pole-mounted camera to spy into his backyard. The Supreme Court concluded the surveillance constituted a warrantless search and Tafoya’s drug-related convictions were reversed. In a related decision, the court also affirmed the Court of Appeals’ decision reversing the convictions of Tafoya’s associate, Gabriel Sanchez.

The case stems from a 2015 drug investigation in Colorado Springs. A tip from an informant led police to believe Tafoya’s home was a possible drug “stash house.” Without applying for or obtaining a warrant, police installed a camera on a utility pole across the street from Tafoya’s house. The camera, which had zoom and panning capabilities, recorded video continuously for more than three months, and detectives watched live and recorded footage from Tafoya’s property.

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The video showed another man, Sanchez, arriving at the home and the two men carrying white plastic bags into the garage. Police later obtained a search warrant for Tafoya’s property and found two white garbage bags containing methamphetamine and cocaine.

During trial, Tafoya moved to suppress the video surveillance evidence, arguing the camera amounted to a warrantless search in violation of the Fourth Amendment, but the motion was denied and a jury found him guilty of possession with intent to distribute and conspiracy to commit the crimes.

In its appeal before the Supreme Court, the state argued Tafoya didn’t have a reasonable expectation of privacy because Tafoya’s backyard was visible to the public from “multiple vantage points.” Someone standing at the apartments behind Tafoya’s house could have seen into his backyard, for example, and his property could be viewed through the cracks of his neighbor’s fence or by someone perched atop the utility pole where police installed the cameras.

In the past decade, a handful of U.S. Supreme Court decisions have addressed the constitutional implications of various types of high-tech surveillance. In its 2012 ruling in United States v. Jones, the high court held that installing a GPS tracking device on a vehicle constitutes a search under the Fourth Amendment. Later, in the 2018 case Carpenter v. United States, the court concluded government acquisition of cell site records is a Fourth Amendment search requiring a warrant. 

Jennifer Lynch, surveillance litigation director at the Electronic Frontier Foundation, told Law Week last year that the Carpenter decision has provided new ammunition for defendants in pole camera cases who argue their rights have been violated. “In these pole camera cases that we’re starting to see come up since Carpenter,” Lynch said in July 2020, “we know that many of the defendants are arguing that courts looking at pole cameras should follow the Supreme Court’s decision in Carpenter and say that this kind of surveillance continuously over months is a huge privacy invasion and violates the Fourth Amendment.”

The state argued pole cameras are different from GPS data or cell tower records. Pole cameras are fixed in place and cannot follow a suspect’s movements, the attorney general’s office argued, and they do not require any trespass or physical intrusion on someone’s property.

Tafoya argued he had a reasonable expectation of privacy when it came to activities in his backyard, which was surrounded by a six-foot-high fence and other barriers that obstructed surveillance. Moreover, he argued, the long-term nature of the surveillance made the search unreasonable.

The Colorado Supreme Court was swayed by Tafoya’s arguments on these points. “Together, Jones and Carpenter suggest that when government conduct involves continuous, long-term surveillance, it implicates a reasonable expectation of privacy,” states the unanimous opinion written by Chief Justice Brian Boatright. “Put simply, the duration, continuity, and nature of surveillance matter when considering all the facts and circumstances in a particular case.”

In his opinion, Boatright acknowledged that Tafoya’s yard was somewhat exposed due to the cracks in the fence and the fact it was visible from neighboring buildings, but that this exposure didn’t surrender all of his Fourth Amendment protection. Tafoya tried to maintain privacy by putting up a fence so that “any typical public exposure would be fleeting” and his expectation of privacy was not unreasonable, the court concluded. Most importantly, the opinion states, the “surveillance occurred continuously over a long period of time.”

“Put simply, this surveillance ‘involved a degree of intrusion that a reasonable person would not have anticipated,’” Boatright wrote, citing U.S. Supreme Court Justice Samuel Alito’s concurrence in Jones.

It’s a good day for folks in Colorado who value their privacy,”  Tafoya’s attorney Robert Borquez said in an email. “It was a strong and well-written opinion which recognized the dangers associated with unchecked surveillance. It was the combination of the nature of the surveillance, its continuity and its duration which made this a Fourth Amendment violation.”

In an earlier interview, Borquez said he wouldn’t be surprised if the U.S. Supreme Court eventually takes up the issue of pole camera surveillance. “There are cases all over the country that go every which way on this,” he said last summer.

In his opinion, Boatright noted that courts around the country are split on whether long-term pole camera surveillance constitutes a search. For example, the 5th Circuit decided back in 1987 that two months of pole camera surveillance of a fenced-in yard constituted a search. However, the 6th Circuit Court of Appeals in 2016 found that the defendant in a case involving long-term surveillance of a Tennessee farm did not have a reasonable expectation of privacy. More recently, the 7th Circuit Court of Appeals decided in July that 18 months of pole camera surveillance of a defendant’s house didn’t amount to a search.

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