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The Colorado Supreme Court.

The Colorado Supreme Court announced this week that it will take up the question of whether Colorado Springs police violated the Fourth Amendment’s prohibition on warrantless searches in their surveillance of a drug dealer's home with a pole-mounted camera.

In November, the Court of Appeals overturned the convictions of Rafael Phillip Tafoya and ordered a new trial, with Judge John Daniel Dailey writing that the court must “consider the nature, the continuity, and particularly the duration of pole camera surveillance to be extremely relevant to the issue of whether police have engaged in a 'search.' "

Police learned of a “stash house” in Colorado Springs, meaning a place for storing drugs. Law enforcement subsequently installed a camera, without obtaining a warrant, on a utility pole across the street. The camera, which was capable of zooming and panning, recorded continuous footage of Tafoya’s property from May to August 2015. Detectives would review previously-recorded video and in some cases watch the live feed.

On June 15, after a tip about a drug delivery, a detective watched live as Tafoya let the vehicle of Gabriel Sanchez into his driveway. The two men carried white plastic bags into the garage. Then a pickup truck entered the driveway, and individuals removed the spare tire into Tafoya’s garage. Subsequently, they replaced the tire. When police stopped the vehicle, they discovered $98,000 of drugs in the spare.

A similar episode occurred two months later, and this time police obtained a warrant. Inside Tafoya’s garage were two white garbage bags containing methamphetamine and cocaine. Prosecutors charged Tafoya with possession with intent to distribute controlled substances and conspiracy.

After Tafoya argued that the utility pole camera violated his constitutional rights, the prosecution countered that a human could have hypothetically stood outside his property and seen what transpired. El Paso County District Court Judge Barbara L. Hughes denied Tafoya’s motion to suppress evidence, explaining that he did not have a reasonable expectation of privacy.

“Law enforcement may use technology (including zoom, pan and tilt features of the pole camera) to ‘augment ... the sensory faculties bestowed upon them at birth’ without violating the Fourth [A]mendment,” she wrote.

Hughes also referenced the 2011 U.S. Supreme Court decision in United States v. Jones, in which police put a tracker on the defendant’s vehicle to monitor his movements before arresting him for drug possession. The justices unanimously found it a violation of the Fourth Amendment and an unlawful search. Hughes determined that the stationary surveillance from the camera was “not so great” of a privacy implication compared to a GPS monitor.

Subsequently, a jury found Tafoya guilty and he received a sentence of 15 years in prison.

The three-member appellate court panel acknowledged that no reasonable expectation of privacy exists in areas exposed to the public. For instance, the U.S. Supreme Court previously held that warrantless aerial surveillance of marijuana grow operations was constitutional. Applying the principle to Tafoya’s case, Dailey agreed that a police officer making observations through binoculars from atop the utility pole would not have been a “search” under the Fourth Amendment.

“But of course, this case did not involve a police officer physically climbing to the top of a utility pole and looking over Tafoya’s privacy fence with a standard pair of binoculars,” he wrote.

The appellate court found a history of judges permitting the type of video surveillance in Tafoya’s case, with the duration of the operation not affecting their views of constitutionality. However, Dailey noted that multiple justices in the Jones case found longer-term surveillance to have a greater privacy implication. A subsequent federal case decided in Massachusetts last year also concluded that an eight-month video surveillance from a pole camera was unconstitutional.

In reversing Tafoya’s convictions, Dailey wrote that the prosecution's argument about the ease of human surveillance “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. And helicopters and publicly available drones do not remain in flight for three months at a time.”

Colorado Springs police told KRDO after the appellate decision that "This is all part of the protections in place as part of our judicial system, and we as an organization are committed to upholding this process."

The cases the Supreme Court will hear are People v. Tafoya and People v. Sanchez.

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