Using a hidden pole camera without a warrant to spy on and record a man’s home for more than three months violated the Fourth Amendment, the Colorado Supreme Court unanimously declared last month. “A camera monitoring all of a person’s backyard activities,” Chief Justice Brian Boatright wrote for the court, “provokes an immediate negative visceral reaction: indiscriminate video surveillance raises the spectre of the Orwellian state.”
With its decision, the Colorado Supreme Court widens a growing split on the constitutionality of long-term pole camera surveillance. The Fifth Circuit U.S. Court of Appeals, as well as the South Dakota Supreme Court, have both ruled against warrantless surveillance, while the Sixth and Seventh have ruled the opposite.
(Photo by Rob Kerr / AFP) (Photo by ROB KERR/AFP via Getty Images)
During summer 2015, officers in Colorado Springs received a tip from a confidential informant about a “stash house,” which they ultimately traced to the home of Rafael Tafoya. Based on that tip, police mounted a camera on top of a nearby utility pole to monitor Tafoya’s front yard, driveway, backyard, and detached garage.
As the Colorado Supreme Court recounted, every day for more than three months, “the camera continuously recorded when Tafoya left his house and when he came home,” as well as “who came to Tafoya’s home and how long they stayed.” Thanks to that camera, police could “zoom in and out while viewing the footage live,” while the recordings were “stored indefinitely for later review.”
Based on the footage they had collected, police obtained a warrant to search Tafoya’s home, where they found plastic bags filled with cocaine and meth. Tafoya was then charged with, and ultimately convicted of, two counts of possession with intent to distribute controlled substances and two additional counts of conspiracy to commit those offenses.
In response, Tafoya filed a motion to suppress the evidence, arguing that the months of warrantless surveillance infringed on his Fourth Amendment rights. At first, Tafoya lost at the trial court, but won in the appellate court. In turn, police appealed that ruling to the Colorado Supreme Court, which sided with Tafoya.
Under U.S. Supreme Court precedent, unless officers physically enter a person’s property, a “search” only occurs “when the government violates a subjective expectation of privacy that society recognizes as reasonable.” But if a court decides there is no reasonable expectation of privacy, government agents are free to monitor and intrude, unbound by the Fourth Amendment.
For Tafoya’s case, the Colorado Supreme Court noted that his yard was surrounded by a six-foot-high privacy fence and was “significantly set back from the street, so a person standing on the street could not see into the backyard.” So while police didn’t surveil into his home directly, they still spied on his “curtilage,” which the U.S. Supreme Court has long considered “part of the home itself for Fourth Amendment purposes.”
The Colorado Supreme Court further found the “extended duration and continuity” of the pole-camera surveillance to be “constitutionally significant,” since it “involved a degree of intrusion that a reasonable person would not have anticipated.” “Society would not expect law enforcement to undertake this kind of ‘pervasive tracking’ of the activities occurring in one’s curtilage,” Boatright added.
The state, however, argued that surveilling Tafoya’s yard wasn’t a search. Since that area was “visible through gaps in Tafoya’s fence, from a particular spot on the stairway of an adjacent building, and from the utility pole itself,” this “public exposure” made it “unreasonable for Tafoya to expect privacy” in his own yard.
But as the Colorado Supreme Court countered, “any typical public exposure of the area would be fleeting”: “This argument ignores the improbability that a neighbor would peer through a gap in a privacy fence or stand on his or her outdoor stairway for three months at a time.”
Moreover, the very fact that the pole camera went undetected further bolstered Tafoya’s argument that his expectation of privacy was reasonable. “If a police officer had manned the utility pole for three continuous months, obviously Tafoya would have noticed,” Chief Justice Boatright quipped.
“It’s a good day for folks in Colorado who value their privacy,” Robert Borquez, who represents Tafoya, told KRDO after the decision came down. “I think it sends a message to law enforcement agencies...there are limits to what can be done as far as surveilling people.”
The Colorado Attorney General’s Office has declined to publicly comment.
