The Colorado Supreme Court on Jul. 27 announced it will take up the question of whether prolonged video surveillance via a pole camera is unconstitutional without a warrant.
In November, the Colorado Court of Appeals ruled that police violated the Fourth Amendment rights of Rafael Tafoya when they used a utility pole-mounted camera to spy into the defendant’s backyard, and the appellate court reversed the defendant’s convictions.
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.
The video showed another man, Gabriel 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.
“These pole cameras are pretty common in police investigations, and they’ve been challenged in the courts for years,” said Jennifer Lynch, surveillance litigation director at the Electronic Frontier Foundation, noting that some of the cases cited in the Court of Appeals’ opinion in Tafoya date back to the 1980s.
Tafoya’s attorney, Robert Borquez, said he thinks the high court decided to take the case because it’s a matter of first impression in Colorado on an important constitutional question. “They may affirm the Court of Appeals, they may reverse the Court of Appeals. But even if they’re going to affirm, I think they want to put their own imprint on it,” he said.
“Eventually, this is going to end up getting answered by the U.S. Supreme Court, I predict,” Borquez said. “There are cases all over the country that go every which way on this.”
In its opinion, the Court of Appeals acknowledged that “many of the courts to address the issue have concluded that continuous, long-term video surveillance of a private home via a non-trespassory pole camera does not constitute a ‘search’ under the Fourth Amendment.” The courts’ rationale, the opinion said, has been that a police officer or utility worker sitting atop the pole could observe the same activities the cameras record.
However, the Court of Appeals disagreed with that reasoning and rejected the state’s argument that the video surveillance was not a search because Tafoya’s property could also have been viewed through a gap in the fence by someone on the sidewalk or by a neighbor in the stairway of a nearby apartment.
“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,” said the court’s opinion.
“Crediting the People’s argument would mean there is no temporal cap on how many months or years the police could have continued the video surveillance of Tafoya’s property,” the Court of Appeals said.
While the duration of the surveillance was key to the court’s conclusion, it declined to say how long video surveillance needs to go on to be considered a search. “We need not identify with precision the point at which the surveillance became a search, for the line was surely crossed long before the three-month mark,” the court said in a footnote.
“What you saw with this opinion … is that the court is finally grappling with that question: If you have a camera photographing somebody continuously for months, is it really the same as an officer up on a utility pole or the neighbor looking through the fence?” Lynch said.
“And it’s not, because merely looking one time over a fence or through a fence doesn’t tell you much about a person’s life. But recording everybody who goes in and out of the house tells you a lot of things about a person’s life.”
According to Lynch, the 2018 U.S. Supreme Court Case Carpenter v. United States, which found government acquisition of cell site records to be a Fourth Amendment search requiring a warrant, 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, “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.”
Some courts, like the Colorado Court of Appeals in Tafoya, have bought that argument, she added, while others have rejected it, concluding that Carpenter was a limited case. In its cert petition, the state of Colorado said the Carpenter decision was a narrow one that doesn’t apply to security cameras.
In addition to the length of the surveillance, the fact that Tafoya had tried to protect his privacy with a six-foot fence was also important to the case, Borquez said. “Historically, for Fourth Amendment purposes, there’s a right to privacy,” he said, “but it’s got to be a right that the individual subjectively asserts and takes steps to protect.”
If the Colorado Supreme Court ends up reversing the Court of Appeals’ decision, Lynch said, “the ramifications for that are huge.”
“It is very inexpensive for police officers to install these kinds of cameras and to record data for months. The storage for this kind of data is very inexpensive,” she said. “And that just encourages law enforcement to use this kind of technology.”
“I think that if courts bless this kind of activity, we’ll start to see more and more surveillance,” Lynch said, adding surveillance tools are disproportionately used on communities of color.
Borquez echoed those concerns, adding advancements in technology, from drones to GPS tracking and thermal imaging, have created new privacy threats for courts to contend with. “Unless something’s done, I think we’re going to see more and more infringement on people’s privacy rights,” he said.
The Supreme Court also announced last week it would hear the case of Tafoya’s associate, Gabriel Sanchez, on the same issue. Sanchez’s drug-related convictions were also overturned by the Court of Appeals.