(CN) — Police who filmed a Colorado man for three months without a warrant violated his Fourth Amendment rights, the Colorado Supreme Court ruled Monday.
Based on an anonymous tip in 2015, law enforcement mounted a camera to a utility pole across the street from Rafael Tafoya’s home in Colorado Springs, Colorado, then filmed his backyard over a 6-foot fence for three months without a warrant.
Based on the footage, police obtained a warrant, entered Tafoya’s property and seized large amounts of methamphetamine and cocaine. Prosecutors then filed charges and a jury found Tafoya guilty on all counts.
“The problem was a Fourth Amendment violation because it was a warrantless search,” said Robert Borquez, an attorney with the state Office of Alternate Defense Counsel, who represented Tafoya on appeal. “It's conceivable that police could get a warrant to look over somebody’s fence, but it's not up to the police to do that on their own. They have to go in front of a judge who's going to review the application.”
While the trial court didn’t see the evidence qualifying as a Fourth Amendment search, the state court of appeals reversed and Tafoya was released from prison in 2020 on an appeals bond. The high court affirmed the appellate court's reversal.
"We hold that police 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 the Fourth Amendment,” Chief Justice Brian Boatright wrote in a 29-page opinion. “Accordingly, we affirm the judgment of the court of appeals."
Citing U.S. Supreme Court Justice Samuel Alito's opinion in the 2012 case United States v. Jones, the Colorado court acknowledged issues of surveillance continue to evolve with technology.
“With technology constantly advancing to allow cheaper and more comprehensive monitoring, courts must ask whether the search at issue in a specific case ‘involved a degree of intrusion that a reasonable person would not have anticipated,’” Boatright wrote. “In Justice Alito’s view, while short-term monitoring of a person’s movements on public streets accords with society’s expectations of privacy, long-term, continuous GPS monitoring does not.”
In addition to the length and continuous nature of the Colorado Springs surveillance, the high court observed that Tafoya’s 6-foot fence extended a reasonable expectation of privacy.
But tall fences are not necessarily attainable by all, countered Jennifer Lynch, surveillance litigation director for the Electronic Frontier Foundation, which filed an amicus brief on behalf of Tafoya.
In addition to homeowners’ covenants commonly banning tall fences, Lynch noted renters and apartment dwellers often don't have walls.
“I don't think that people in those scenarios, who might not be economically advantaged, should have a lower expectation of privacy just because they can't build their own fence,” Lynch said in an interview.
Notably courts remain still split on whether use of a pole camera amounts to a search under the Fourth Amendment. While Monday's ruling in Colorado aligns with North Dakota's high court, the Sixth Circuit has allowed the practice to continue and justices in the First Circuit are currently weighing similar issues.
“Courts have said that when somebody has exposed something to the public, they no longer have an expectation of privacy,” said Mark Silverstein, legal director for the ACLU of Colorado. “So we have been interested in persuading courts that that really goes too far when you think about modern technologies that allow police to monitor what's exposed to the public 24/7 for months and months at a time.”
The state attorney general’s office did not respond immediately to requests for comment.
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