Denver District Court judge slaps state ethics commission with injunction

The Ralph Carr Judicial Building, which houses the Colorado Independent Ethics Commission.

Colorado Springs police violated constitutional protections against warrantless searches by using a pole-mounted camera to monitor a suspected drug dealer's home continuously for three months, the Colorado Supreme Court ruled on Monday.

The key decision clarified the privacy rights of individuals in an age of advanced surveillance technology. Although the government argued that Rafael Phillip Tafoya's property was visible to the public through gaps in his six-foot-tall fence and from a neighboring apartment building, the justices found the overall nature of the surveillance intruded upon Tafoya's reasonable expectation of privacy.

"Here, 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," Chief Justice Brian D. Boatright wrote in the September 13 opinion.

Therefore, he added, the police's actions amounted to "a degree of intrusion that a reasonable person would not have anticipated."

The decision means Tafoya and Gabriel Sanchez, who was also convicted as a result of the police operation, are entitled to new trials with evidence stemming from the search suppressed.

"It's a good day if you value your right to privacy in Colorado," said Robert Borquez, the attorney representing Tafoya. "It doesn't mean that police are having their hands tied about what they can do. But before they can peek over people's fences, they have to get a search warrant."

The case involved a camera Colorado Springs police mounted, without a warrant, onto a telephone pole outside a suspected "stash house" where drug deals reportedly took place. Between May and August 2015, the camera recorded Tafoya's property continuously, catching criminal activity on two occasions.

Sanchez drove onto Tafoya's property and the two men moved bags between his car and the garage. Later another vehicle arrived, removing the spare tire out of view of the camera and then reattaching it. Law enforcement who pulled over the second vehicle in both instances found narcotics or cash. They obtained a search warrant for Tafoya's garage and found additional drugs, as well as cash in Sanchez's vehicle.

Both men received prison sentences following their convictions for possession with intent to manufacture or distribute a controlled substance.

But in November 2019, a three-judge panel of the Court of Appeals determined police violated the Fourth Amendment by conducting a warrantless search of Tafoya's property. Although the panel acknowledged it would not amount to a search for an officer to stand on a utility pole and peer into Tafoya's yard, the camera drastically extended the length and continuity of the surveillance, to the point where it infringed upon Tafoya's reasonable expectation of privacy.

Other courts have been more willing to side with the government in cases involving long-term surveillance. In July, the federal appeals court based in Chicago upheld the use of a pole cam to monitor a man's home in Illinois for 18 months. And last year, a panel of the Boston-based appeals court took no issue with surveillance that lasted for eight months. (That decision is now on appeal to the full U.S. Court of Appeals for the First Circuit.)

During oral arguments in April of this year, all members of Colorado's Supreme Court expressed some skepticism or discomfort with the notion that law enforcement could undertake those types of operations without a warrant. Justice Melissa Hart described how a utility pole outside of her home could provide a view into her daughter's bedroom.

"Most people you ask would actually be quite surprised that the police could be videotaping your backyard all the time. That anything there, no matter what … would be subject to police surveillance," she said.

The American Civil Liberties Union and the Electronic Frontier Foundation, a digital privacy group, supported Tafoya and Sanchez in their appeals. Siding with the government, they argued, would give police license to track political activists or protesters to their homes without a court's authorization.

Nathan Freed Wessler, deputy project director of the ACLU's Speech, Privacy, and Technology Project, praised the ruling for making Colorado "a leader in ensuring that the Constitution continues to protect our privacy against government surveillance in the digital age.”

The U.S. Supreme Court established in 1967 that an area of a person's home that they knowingly expose to the public is not necessarily protected from police searches. Another decision clarified that law enforcement is allowed to use technological surveillance to enhance "the sensory faculties bestowed upon them at birth."

But the state Court of Appeals, and now the Colorado Supreme Court, distinguished between cases involving brief surveillance and the type of long-term, continuous monitoring at issue with Tafoya's home. Both courts drew upon United States v. Jonesa 2012 decision in which Justices Samuel A. Alito, Jr. and Sonia Sotomayor wrote that the police's extended use of a global positioning system tracker on a suspect's vehicle had troublesome privacy implications.

Because the camera outside Tafoya's home created a comprehensive record of his habits and routines, with police being able to review footage months or years into the future if needed, Boatright agreed with the Court of Appeals that Colorado Springs police had intruded on Tafoya's privacy rights.

"As a result, police would know who Tafoya’s friends and associates were, how often they came and went, and how long they stayed at his home. And these observations were not just on days that police suspected that an illegal transaction might happen," he wrote.

The Fourth Judicial District Attorney's Office, which originally prosecuted the cases, declined to indicate whether it will pursue a retrial, with a spokesperson saying the office is reviewing the Court's decisions.

Associate professor Ian P. Farrell of the University of Denver's law school said the U.S. Supreme Court may ultimately take up the constitutionality of pole camera surveillance directly, given the split decisions on the subject from lower courts.

"At the moment federal law is being applied differently in some parts of the country than others," he said.

The cases are People v. Tafoya and People v. Sanchez.

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