Colorado Supreme Court: Warrantless Pole Camera Surveilling and Recording of Curtilage for Over Three Months Constitutes an Illegal Search
by Douglas Ankney
The Supreme Court of Colorado affirmed a decision of the Court of Appeals (“COA”), holding that a warrantless surveillance and recording of a home’s curtilage and private, fenced-in yard via a pole camera for over three months was an illegal search.
A confidential informant told police that Rafael Phillip Tafoya’s residence in Colorado Springs was a drug “stash house.” As a result, the police—without obtaining a warrant—mounted a video camera to a utility pole across the road from Tafoya’s house. The camera continuously recorded footage for more than three months, and police stored the footage indefinitely for later review.
The surveilled area included Tafoya’s front yard, backyard, and driveway. A six-foot-high wooden privacy fence enclosed the backyard, a detached garage, and a portion of Tafoya’s driveway. The elevated camera allowed police to see portions of the property ordinarily hidden from public view.
However, due to thin gaps in the wooden fence, Tafoya’s neighbor could peer into the backyard if standing close to the fence. Additionally, a two-story apartment building abutting Tafoya’s property had an exterior stairway from which it was possible to see a portion of Tafoya’s backyard.
Police twice received a tip that Tafoya was going to receive shipments of drugs—once on June 25, 2015, and once on August 24, 2015. Using the pole camera, police each time observed a car arrive at the residence. Tafoya opened the gate to his driveway to allow the car to enter and then closed the gate. Tafoya and other men then removed white bags from the car and carried them into the detached garage. Based on that information, police obtained a warrant to search Tafoya’s property. They found the white bags, which contained methamphetamine and cocaine. Tafoya was charged with two counts each of possession with intent to distribute controlled substances and conspiracy to commit those offenses.
Tafoya moved to suppress the evidence obtained as a result of the pole camera, arguing that its use constituted a warrantless search in violation of the Fourth Amendment. The trial court denied the motion. The jury convicted Tafoya of all counts, and he appealed. The COA agreed with Tafoya that the use of the pole camera was an unlawful search in violation of the Fourth Amendment and reversed. The People were granted further review in the Colorado Supreme Court.
The Court observed “[t]he Fourth Amendment to the United States 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.” The “basic purpose” of the Fourth Amendment “is to safeguard the privacy and security of individuals against arbitrary invasion by governmental officials.” Carpenter v. United States, 138 S. Ct. 2206 (2018). The Fourth Amendment generally requires police to obtain a warrant for action that constitutes a search, and warrantless searches are presumptively unreasonable. United States v. Karo, 468 U.S. 705 (1984).
For purposes of the Fourth Amendment, a search occurs “when the government violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27 (2001). While “no single rubric definitively resolves which expectations of privacy are entitled to protection, the analysis is informed by historical understandings of what was deemed an unreasonable search and seizure when the Fourth Amendment was adopted.” Carpenter. “The home is first among equals.” Florida v. Jardines, 569 U.S. 1 (2013).
But what a person knowing exposes to public view, even in his own home or office, is not a subject of Fourth Amendment protection. Katz v. United States, 389 U.S. 347 (1967). However, what a person seeks to keep private, even in an area accessible to the public or within public view, may still be constitutionally protected. Id.
The Colorado Supreme Court explained that “public exposure may diminish an expectation of privacy, but it does not necessarily eliminate the expectation altogether.” See, e.g., People v. Shorty, 731 P.2d 679 (Colo. 1987) (“Reasonable expectations of privacy are diminished,” but not necessarily absent, “in common areas of multi-family dwellings.”).
In Carpenter, the U.S. Supreme Court approvingly cited Justice Alito’s concurring opinion from United States v. Jones, 565 U.S. 400 (2012): “Since GPS monitoring of a vehicle tracks every movement a person makes in that vehicle ... longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.”
Curtilage, defined as “[t]he land or yard adjoining a house” by Black’s Law Dictionary (11th ed. 2019), is “part of the home itself for Fourth Amendment purposes.” Jardines. But “the fact that a search occurs within the curtilage is not dispositive if the area’s public accessibility dispels any reasonable expectation of privacy.” Shorty. If surveillance is of a limited duration—such as flying over a home—courts have generally held that when members of the public can view the cartilage from some vantage point where they are entitled to be, a person has no reasonable expectation of privacy. California v. Ciraolo, 476 U.S. 207 (1986). However, while short-term monitoring of a person’s movements accords with society’s expectations of privacy, long-term persistent monitoring does not. Jones.
The Court stated that, taken together, Jones and Carpenter stand for the principle that when government conduct involves continuous, long-term surveillance, it implicates a reasonable expectation of privacy. The Court explained that the duration, continuity, and nature of surveillance matter when considering all facts and circumstances in a particular case in determining whether there has been a search for Fourth Amendment purposes.
For Tafoya to prevail, he had to show that the Government violated his subjective expectation of privacy in the area surveilled that society is prepared to recognize as reasonable, according to the Court. Tafoya erected a privacy fence and a gate across his driveway, demonstrating he had a subjective expectation of privacy, the Court determined. He closed the gate behind the vehicles, demonstrating he sought to maintain his privacy. Plus, the area surveilled was curtilage.
While some of these areas were exposed to public view, no one would peer through the fence or stand on the apartment stairwell continuously for over three continuous months like the police did with the pole camera, the Court reasoned. Further, the camera recorded the movements of Tafoya and his associates coming and going, every hour of every day for over three months. The recorded information was stored indefinitely and could be reviewed by police at any time. The Court concluded that police use of the pole camera intruded upon Tafoya’s subjective expectation of privacy that society is prepared to recognize as reasonable as per Carpenter and Jones regardless of whether these movements were partially exposed to public view.
The Court agreed with the COA that police use of the pole camera under the specific facts of this case constituted a warrantless search in violation of the Fourth Amendment.
Accordingly, the Court affirmed the judgment of the COA and remanded to the COA with instructions to return the matter to the trial court for further proceedings consistent with the Court’s opinion. See: People v. Tafoya, 494 P.3d 613 (Colo. 2021).
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