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The police’s use of a pole camera violation of the Fourth Amendment

Author: Jim Chapman

 

Because the police suspected Rafael Tafoya of drug trafficking, they mounted a camera on a utility across the street from his house without first securing a warrant. The pole camera continuously recorded footage of Tafoya’s property—including his backyard, which was otherwise hidden by a six-foot-high privacy fence—for more than three months. The camera could pan left and right, tilt up and down, and zoom in and out—all features that the police could control while viewing the footage live. The police also indefinitely stored the footage for later review.

Based on activity that they observed from the footage, the police eventually obtained a search warrant for Tafoya’s property. During the subsequent search pursuant to the warrant, the police found large amounts of methamphetamine and cocaine. Thereafter, Tafoya was charged with two counts of possession with intent to distribute and with two counts of conspiracy. Before trial, Tafoya moved to suppress all of the evidence obtained as a result of the pole camera surveillance, including the evidence seized pursuant to the search warrant, arguing that the police’s use of the camera violated his Fourth Amendment rights. The trial court denied Tafoya’s motion and found that the police’s use of the camera did not constitute a search within the meaning of the Fourth Amendment. Tafoya was subsequently convicted on all counts.

The Colorado Court of Appeals reversed the trial court’s denial of Tafoya’s motion to suppress and found that the police’s use of the pole camera constituted an impermissible, warrantless search. Prosecutors, then, sought and obtain certiorari review from the Colorado Supreme Court. The relevant facts before the Colorado Supreme Court are as follows.

A confidential informant told the police about a possible drug stash house in Colorado Springs. The police determined that the possible stash house was Tafoya’s residence. As a result, the police mounted a camera to the utility pole across the street from Tafoya’s house. While actively watching the footage, the police could adjust the pole camera by panning left and right, tilting up and down, and zooming in and out. The pole camera continuously recorded footage for more than three months, and the police stored the footage, indefinitely, for later review. The police did not obtain a warrant authorizing the use of the pole camera.

The area surveilled included Tafoya’s front yard, backyard, and driveway. Tafoya’s property had a long driveway that ran from the front of the property alongside the house and ended at a detached garage in the backyard. A six-foot-high, wooden privacy fence enclosed the detached garage, the backyard, and the remaining half of the driveway. The fence included a gate across the driveway near where the driveway began running alongside the house. The property also had a large front yard so that the house and backyard are set back from the street. The pole camera, positioned across the street from the house, offered an elevated view of the front yard, the front of Tafoya’s house, driveway, backyard, and detached garage, including portions of Tafoya’s property not usually visible to members of the public. Due to the camera’s elevated angle, it recorded any activity occurring in Tafoya’s enclosed backyard, including Tafoya’s movements on this portion of his property and his comings and goings. It also captured whether Tafoya had guests, how long they stayed, and any activities in which they engaged in the enclosed backyard.

However, Tafoya’s backyard was not completely shielded from the public. The fence had thin gaps between the wooden slats, which someone standing in the neighboring yard could look through. Additionally, the two-story apartment building abutting Tafoya’s property had an exterior stairway leading to the second-floor units. From a particular spot on the stairway, one could look down and see some of Tafoya’s backyard.

On June 25, 2015, the police received a tip that a drug shipment would be delivered to Tafoya’s house that day. A detective, therefore, started viewing the live footage from the pole camera and made the following observations. A man identified as Gabriel Sanchez drove a car up Tafoya’s driveway. Tafoya then opened the gate to allow Sanchez to drive into the section of the driveway behind the privacy fence and closed the gate behind the car. Because of the pole camera’s elevated position, the parked car remained partially visible over the privacy fence. The detective, who had previously zoomed in the pole camera, observed Tafoya bend down at the front left tire of the car, but because of the fence, the detective could not see what Tafoya was doing. After several minutes, Tafoya and Sanchez carried two white plastic bags into the detached garage.

Thereafter, a pickup truck drove up Tafoya’s driveway. Men from the truck carried a spare tire from the truck into Tafoya’s detached garage. The men eventually moved what appeared to be the same spare tire from the garage back to the truck and drove away. Police later stopped the truck and discovered $98,000 in the spare tire.

On August 23, 2015, the police received another tip that a drug shipment would be delivered to Tafoya’s house. The next day, a detective began watching the pole camera’s live footage. He observed the same routine: Sanchez drove the car up the driveway; Tafoya allowed the car past the gate; and Tafoya closed the gate. The detective zoomed the camera in and observed Tafoya bend down near the front left tire, but again because of the fence, the detective could not see what Tafoya was doing. The detective eventually saw Tafoya carry white plastic bags into the detached garage.

Based on these observations, the police obtained a warrant to search Tafoya’s property. During the subsequent search, the police discovered white plastic bags containing methamphetamine and cocaine inside the detached garage.

Tafoya was charged with two counts of possession with intent to distribute controlled substances and with two counts of conspiracy to commit these offenses. Before trial, Tafoya moved to suppress all of the evidence obtained as a result of the pole camera surveillance, including the evidence police found while executing the search warrant. Tafoya argued that the police’s use of the pole camera constituted a warrantless search in violation of his Fourth Amendment rights.

The trial court denied Tafoya’s motion to suppress, finding that Tafoya did not have a reasonable expectation of privacy in the area recorded by the pole camera on June 25 and August 24. Therefore, the trial court allowed the footage from June 25 and August 24, the money seized on June 25, and the evidence seized pursuant to the search warrant to be admitted as evidence at the trial. The jury found Tafoya guilty on all counts.


Tafoya, then, appealed, and the Colorado Court of Appeals reversed the trial court’s denial of his motion to suppress. Specifically, the court of appeals held that the police’s use of the pole camera to conduct continuous surveillance of Tafoya’s fenced-in curtilage for more than three months did, in fact, constitute a warrantless search in violation of his Fourth Amendment rights. The prosecutors, then, appealed, and the Colorado Supreme Court granted certiorari. People v. Tafoya, ___ P.3d 3d ___, 2021 WL 4144014 (Colo. Sept. 13, 2021).


The Colorado Supreme Court began its consideration of the prosecution’s appeal by noting that the Constitution protects people from unreasonable searches and seizures and requires that any authorization for the government to conduct a search be supported by probable cause. Indeed, the basic purpose of the Fourth Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials. For these reasons, the Fourth Amendment generally requires the police to obtain a warrant for action that constitutes a “search.”


The Colorado Supreme Court then explained that a “search,” in the Constitutional sense, occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable. The existence of a legitimate expectation of privacy must be determined after examining all of the facts and circumstances in a particular case. That being said, the home is of particular historical significance as the United States Supreme Court has held that, when it comes to the Fourth Amendment, the home is first among equals.


Furthermore, the Colorado Supreme Court noted that whether a person has a reasonable expectation of privacy in a particular area is also informed by whether that person has exposed the area to the public. Thus, what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. Of course, what a person seeks to preserve as private, even in an area accessible to the public, may be Constitutionally protected. In other words, public exposure may diminish an expectation of privacy, but it does not necessarily eliminate the expectation altogether.


Finally, the Colorado Supreme Court explained that the area recorded by the pole camera in this case was curtilage. Curtilage is the land or yard adjoining a house and is considered to be a part of the home for Fourth Amendment purposes. However, the fact that a search occurs within the curtilage is not necessarily dispositive if the area’s public accessibility dispels any reasonable expectation of privacy. Where the police or members of the public could view the curtilage from some public vantage point, courts have generally held that a person has no reasonable expectation of privacy in the curtilage. These cases, however, involved surveillance of limited duration.


Ultimately, the Colorado Supreme Court agreed with the court of appeals that that the police’s use of the pole camera to continuously video surveil Tafoya’s fenced-in curtilage for three months, with the footage stored indefinitely for later review, constituted a warrantless search in violation of Tafoya’s Fourth Amendment rights. The Colorado Supreme Court explained that, in order to prevail, Tafoya had to show that the government violated a subjective expectation of privacy in the area surveilled that society is prepared to recognize as reasonable. The Colorado Supreme Court found that the area surveilled by the police was curtilage and was entitled to some degree of an expectation of privacy. In addition, the physical nature of the area surveilled—fenced, set back from the road—demonstrated a subjective expectation of privacy.


The more challenging question, according to the Colorado Supreme Court, was whether Tafoya’s expectation of privacy in the area surveilled was one that society is prepared to recognize as reasonable. To reach an answer, the Colorado Supreme Court considered the public exposure of the area as well as the duration, continuity, and nature of the surveillance.


The Colorado Supreme Court noted that the pole camera surreptitiously recorded the curtilage of Tafoya’s property all day, every day, for over three months. The police indefinitely stored the footage gathered by the camera and could review it at any later date. The camera could pan left and right, tilt up and down, and zoom in and out while viewing the footage live. In fact, the police used these features on both June 25 and August 24 to observe Tafoya and Sanchez’s actions. Accordingly, the Colorado Supreme Court found that the extended duration and continuity of the surveillance was Constitutionally significant.


Moreover, the Colorado Supreme Court determined that society would not expect law enforcement to undertake this kind of pervasive tracking of the activities occurring in one’s curtilage as the camera recorded the activities in Tafoya’s enclosed backyard all day, every day, for three months. The Colorado Supreme Court also found significant that the information was stored, allowing the government to efficiently mine the data/record for information years into the future. Next, the surveillance was surreptitious compared to traditional surveillance. If a police officer had manned the utility pole for three continuous months, the Colorado Supreme Court stated that, obviously, Tafoya would have noticed. Finally, because it was cheap and surreptitious, the surveillance evaded the ordinary checks that constrain abusive law enforcement practices: limited police resources and community hostility.


Considering all of the circumstances of this case, the Colorado Supreme Court concluded that the limited public exposure of the area did not make Tafoya’s expectation of privacy unreasonable. The house was set back from the street, and the area was enclosed by a privacy fence that included a wooden gate across the driveway. The area was curtilage, which is considered part of his home for Fourth Amendment purposes, an area first among equals and whose historical significance should not be overlooked. Perhaps most significantly, the surveillance occurred continuously over a long period of time; the pole camera not only could see into the backyard, but it also recorded the activities of Tafoya’s backyard all day, every day, for over three months. While the police may use technology to augment the sensory faculties bestowed upon them at birth without necessarily violating the Fourth Amendment, such use does not automatically escape Fourth Amendment scrutiny.


Put simply, the surveillance in Tafoya’s case involved a degree of intrusion that a reasonable person would not have anticipated. Therefore, the Colorado Supreme Court agreed with the court of appeals that the police’s use of the pole camera under these specific facts constituted a warrantless search in violation of the Fourth Amendment. Accordingly, the Colorado Supreme Court affirmed the court of appeals’ decision and reversed Tafoya’s convictions.

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