v. Tafoya , 2019 COA 176 ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
November 27, 2019
2019COA176
No. 17CA1243, People v. Tafoya — Constitutional Law —
Fourth Amendment — Searches and Seizures — Warrantless
Search
In a matter of first impression in Colorado, the division
concludes that police use of a video camera installed at the top of a
utility pole to conduct continuous video surveillance for more than
three months of the defendant’s fenced-in backyard constituted a
warrantless “search” in violation of the Fourth Amendment to the
United States Constitution.
COLORADO COURT OF APPEALS 2019COA176
Court of Appeals No. 17CA1243
El Paso County District Court No. 15CR4102
Honorable Barbara L. Hughes, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Rafael Phillip Tafoya,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE DAILEY
Richman and Brown, JJ., concur
Announced November 27, 2019
Philip J. Weiser, Attorney General, Trina K. Taylor, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee
Robert P. Borquez, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant
¶1 Police, acting without a search warrant, installed a video
camera near the top of a utility pole (the pole camera) to surveil the
home of defendant, Rafael Phillip Tafoya. For more than three
months, the elevated camera provided police with continuous,
recorded video surveillance of the area surrounding Tafoya’s home,
including an area behind his privacy fence. Based on what police
observed over that lengthy period, they obtained a search warrant,
physically searched Tafoya’s property, and found a large amount of
controlled substances.
¶2 The issue in this case is whether the continuous, three-
month-long use of the pole camera constituted a search under the
Fourth Amendment to the United States Constitution. We conclude
that it did.
¶3 Because the trial court concluded otherwise, we reverse
Tafoya’s two convictions for possession with intent to distribute a
controlled substance and his two conspiracy convictions and
remand for a new trial.
I. Background
¶4 A confidential informant told police about a possible drug
“stash house” in Colorado Springs. Based on specific information
1
provided by the informant, police identified Tafoya’s home as the
possible stash house.
¶5 Without applying for or obtaining a search warrant, police
installed the pole camera near the top of a utility pole across the
street from Tafoya’s property. Because the utility pole was across
the street, police did not have to enter Tafoya’s property to install it.
¶6 The pole camera continuously recorded video surveillance
footage of Tafoya’s property for more than three months from May
16, 2015, to August 24, 2015. There is no indication that Tafoya
knew his property was under surveillance. Detectives could watch
the video surveillance footage at the police station. They reviewed
already-recorded footage on a regular basis. They also sometimes
watched live-streaming footage as things were occurring on Tafoya’s
property.
¶7 The pole camera had some useful technological capabilities.
From the police station, the detectives could pan the camera left
and right and up and down. The camera also had a zoom feature.
With the live-streaming video surveillance, the zoom had buffering
so, as explained at the suppression hearing, a detective could “see
2
very close to things, faces, to be able to identify objects, things of
that nature.”
¶8 At Tafoya’s property, a long driveway runs from the street,
along the side of Tafoya’s home, to a detached garage in the
backyard. A chain-link fence at the front of the property separates
it from the public sidewalk. Farther into the property, as the
driveway begins running along the side of the home, is a wooden
privacy fence, approximately six feet high and including a gate
across the driveway. Behind the privacy fence is the remainder of
the driveway, which is next to the residence and in front of the
detached garage. The pole camera provided an elevated view of
Tafoya’s property, including the area of the driveway behind his
privacy fence, which could not be seen from the public sidewalk or
the street.
¶9 On June 25, 2015 — when the pole camera had already been
recording video surveillance footage for more than a month — police
received a tip from an informant that a drug shipment would be
delivered to Tafoya’s house later that day. At the police station, a
detective started watching live-streaming footage from the pole
camera.
3
¶ 10 The detective saw a man named Gabriel Sanchez drive a car
from the street up Tafoya’s driveway. Tafoya opened the gate on the
privacy fence. Sanchez drove the car past the privacy fence, and
Tafoya closed the gate. From the elevated view of the pole camera,
the parked car was partially visible over the privacy fence. With the
camera zoomed in, the detective observed Tafoya bend down near
the left front tire of the car. But because that view was blocked by
the privacy fence, precisely what Tafoya was doing at the left front
tire could not be seen. After many minutes of Tafoya bending down
near the tire, the detective saw Tafoya and Sanchez carry two white
plastic bags containing unknown items into the detached garage.
¶ 11 A pickup truck then drove from the street up Tafoya’s
driveway. Men got out of the truck and moved a spare tire from the
truck into Tafoya’s garage. Later, they moved the spare tire from
the garage back to the truck and drove away. Police later stopped
the truck and found $98,000 in the spare tire.
¶ 12 The police continued recording video surveillance footage of
Tafoya’s property for two more months. Then, on August 23, 2015,
police received a tip from an informant that another drug shipment
would arrive at Tafoya’s property the next day. On August 24, a
4
detective began viewing live-streaming footage of Tafoya’s property,
and ultimately observed similar activity. Sanchez drove the same
car up Tafoya’s driveway, Tafoya opened the gate, Sanchez drove
the car past the privacy fence, and Tafoya closed the gate. Still,
from the elevated view of the pole camera, the detective could see
Tafoya again bend down near the left front tire of the car and then
carry white plastic bags containing unknown items into the garage.
¶ 13 Police then obtained a search warrant and conducted a
physical search of Tafoya’s property. Inside the garage, they found
two white garbage bags containing a total of approximately twenty
pounds of methamphetamine and a half kilogram of cocaine.
¶ 14 The prosecution charged Tafoya with two counts of possession
with intent to distribute controlled substances (methamphetamine
and cocaine), and two counts of conspiracy to commit these
offenses, and alleged that the crimes occurred during the date
range of June 25, 2015, through August 24, 2015.
¶ 15 Tafoya filed a motion to suppress, arguing that the use of the
pole camera constituted a warrantless search of his property in
violation of the Fourth Amendment.
5
¶ 16 In the People’s response, and at the suppression hearing, one
of the People’s arguments was that a person — hypothetically —
could view the area of Tafoya’s driveway behind the privacy fence
from different vantage points. The People introduced photographs
at the suppression hearing from those vantage points. For example,
the privacy fence had very thin gaps between each of the wooden
boards, so Tafoya’s next-door neighbor hypothetically could have
stood next to the privacy fence, peered through a thin gap, and seen
what was occurring behind Tafoya’s privacy fence on June 25,
2015, and August 24, 2015. Also, a two-story apartment building
with an exterior stairway leading up to one of the second-story
apartments abuts Tafoya’s backyard. Again, hypothetically, the
resident of that apartment, while standing at a particular spot on
the stairway, could have seen what Tafoya was doing near the left
front tire of the car on June 25, 2015, and August 24, 2015.
¶ 17 After considering evidence and argument presented at the
suppression hearing, the trial court issued a written order denying
the motion on the ground that Tafoya did not have a reasonable
expectation of privacy in what was occurring behind his privacy
fence because that area was exposed to the public, and therefore
6
the use of the pole camera did not constitute a search under the
Fourth Amendment. The court reasoned as follows:
• because the public could see into Tafoya’s backyard from
the apartment stairway behind Tafoya’s home or from the
top of the utility pole, “that . . . enabled law enforcement
agents to see the alleged illegal activities from being
carried out in pursuance of [Tafoya’s] alleged drug
dealing operations”;1
• “[l]aw 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” (quoting United States
v. Knotts, 460 U.S. 276, 282 (1983));
• “the length of time” Tafoya’s home “was placed under
surveillance,” and the impracticality of a utility worker
perching on the pole during that time, did not convert the
surveillance into a search because “‘it is only the
1 The court noted that “[t]he fact that the pole cam[era] saw the
activities from a different vantage point than the one that could be
viewed by the public is no bar to the admissibility of the evidence.”
7
possibility that a member of the public may observe
activity from a public vantage point — not the actual
practica[bi]lity of law enforcement[]’ doing so without
technology — that is relevant for Fourth Amendment
purposes” (quoting United States v. Houston, 813 F.3d
282, 289 (6th Cir. 2016)); and
• the long-term surveillance here was not like the “GPS
tracking prohibited by the United States Supreme Court
in [United States v. Jones, 565 U.S. 400 (2012),]” because
“the privacy concerns implicated by a fixed point of
surveillance are not so great as those implicated by GPS
tracking” (quoting Houston, 813 F.3d at 290).2
¶ 18 At trial, the jury found Tafoya guilty on all counts, and the
trial court sentenced him to fifteen years in the custody of the
Department of Corrections.
2 “GPS monitoring generates a precise, comprehensive record of a
person’s public movements that reflects a wealth of detail about her
familial, political, professional, religious, and sexual associations.”
United States v. Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J.,
concurring).
8
II. Did the Use of the Pole Camera Constitute a “Search”?
¶ 19 On appeal, Tafoya contends that the police violated the Fourth
Amendment by using the pole camera to conduct a continuous,
three-month-long surveillance of his backyard without first
obtaining a search warrant.3 We agree.
A. Standard of Review
¶ 20 When reviewing a suppression order, we defer to the district
court’s factual findings as long as evidence supports them, but we
review de novo the court’s legal conclusions. People v. McKnight,
2019 CO 36, ¶ 21.
3 He also asserts that the police violated the state constitutional
search and seizure provision, Colo. Const. art. II, § 7. Although
Tafoya mentioned the state constitutional provision in his
suppression motion, in the trial court he did not argue that it
afforded him greater protections than the Fourth Amendment. Nor
did the trial court base its ruling on state constitutional grounds.
Under these circumstances, we limit our analysis to the federal
constitutional issue. See People v. Rodriguez, 209 P.3d 1151, 1156
(Colo. App. 2008) (“Where, as here, a defendant does not make a
specific objection, with a separate argument, under the state
constitution, we must presume the defendant’s objections are based
on federal, not state, constitutional grounds, and limit our review
accordingly.”) (emphasis added), aff’d, 238 P.3d 1283 (Colo. 2010);
see also People v. Holmes, 981 P.2d 168, 170 n.3 (Colo. 1999) (“In
the absence of a statement indicating that the decision rests on
state grounds, we will presume that the court relied on federal law.”
(quoting People v. Hauseman, 900 P.2d 74, 77 n.4 (Colo. 1995))).
9
B. First Things
¶ 21 The United States Constitution protects people from
unreasonable governmental searches and seizures. See U.S. Const.
amend. IV. The “basic purpose” of the Fourth Amendment “is to
safeguard the privacy and security of individuals against arbitrary
invasions by governmental officials.” Carpenter v. United States,
585 U.S. ___, ___, 138 S. Ct. 2206, 2213 (2018) (quoting Camara v.
Mun. Court, 387 U.S. 523, 528 (1967)).
¶ 22 “Warrantless searches are presumptively unreasonable[.]”
McKnight, ¶ 22 (quoting United States v. Karo, 468 U.S. 705, 717
(1984)). A warrant is only required, however, for police action that
constitutes a “search” or “seizure” under the Fourth Amendment.
Henderson v. People, 879 P.2d 383, 387 (Colo. 1994).
¶ 23 “A search occurs when the government intrudes on an area
where a person has a ‘constitutionally protected reasonable
expectation of privacy.’” Id. (quoting Katz v. United States, 389 U.S.
347, 360 (1967) (Harlan, J., concurring)). The cases recognize two
aspects to the expectation of privacy — one subjective and one
objective. Said another way, “[w]hen an individual ‘seeks to
preserve something as private,’ and his expectation of privacy is
10
‘one that society is prepared to recognize as reasonable,’ . . . official
intrusion into that private sphere generally qualifies as a search
and requires a warrant supported by probable cause.” Carpenter,
585 U.S. at ___, 138 S. Ct. at 2213 (quoting Smith v. Maryland, 442
U.S. 735, 740 (1979)).
¶ 24 “[W]hen it comes to the Fourth Amendment, the home is first
among equals.” Florida v. Jardines, 569 U.S. 1, 6 (2013); see also
McKnight, ¶ 118 (Samour, J., dissenting) (“[T]he home is the most
sacred of Fourth Amendment spaces . . . .”). The “curtilage” of the
home — the area “immediately surrounding and associated with the
home” — is also “part of the home itself for Fourth Amendment
purposes.” Jardines, 569 U.S. at 6 (quoting Oliver v. United States,
466 U.S. 170, 180 (1984)); see also People v. Tomaske, 2019 CO 35,
¶ 9 (same). In the trial court, the People conceded, and the court
found, that the area of Tafoya’s driveway behind his privacy fence
fell within the “curtilage” of his home.
¶ 25 But a person can have no reasonable expectation of privacy in
what he or she knowingly exposes to the public. Katz, 389 U.S. at
351. So “the fact that a search occurs within the curtilage [of a
home] is not dispositive if the area’s public accessibility dispels any
11
reasonable expectation of privacy.” People v. Shorty, 731 P.2d 679,
681 (Colo. 1987).
¶ 26 For example, if a police officer standing on a public sidewalk
can see the curtilage of a home, the officer has not conducted a
“search” under the Fourth Amendment. As the Supreme Court
explained in California v. Ciraolo,
[t]hat the area is within the curtilage does not
itself bar all police observation. The Fourth
Amendment protection of the home has never
been extended to require law enforcement
officers to shield their eyes when passing by a
home on public thoroughfares. Nor does the
mere fact that an individual has taken
measures to restrict some views of his
activities preclude an officer’s observations
from a public vantage point where he has a
right to be and which renders the activities
clearly visible.
476 U.S. 207, 213 (1986).
¶ 27 Precedent makes clear that a police officer need not remain at
ground level to conduct visual observations of the curtilage of a
home. In Ciraolo, the Supreme Court, in a 5-4 decision, held that it
was not a search where a police officer in an airplane at an altitude
of 1,000 feet visually observed marijuana plants in a residential
backyard enclosed by a privacy fence. See id. at 209-15. And in
12
Fla. v. Riley, a plurality of the Supreme Court held that it was
not a search where a police officer in a helicopter at an altitude of
400 feet observed marijuana plants in a nearly enclosed greenhouse
in a residential backyard. See 488 U.S. 445, 448-55 (1989); see
also Henderson, 879 P.2d at 389-90 (same).
¶ 28 In Ciraolo, the Court explained that a homeowner cannot
reasonably expect that activities in his or her enclosed backyard
“will not be observed by a passing aircraft — or by a power company
repair mechanic on a pole overlooking the yard.” 476 U.S. at 214-
15. Thus, it would not be a “search” for a police officer to climb a
utility pole and look over a privacy fence into a homeowner’s
backyard.
¶ 29 Nor, in our view, would it be a “search” for a police officer
situated on a utility pole to look into a backyard with the aid of a
camera with a zoom lens.
¶ 30 In support of this conclusion, we note that divisions of this
court have held that a police officer’s use of standard binoculars to
look at a homeowner’s property does not constitute a search. See
People v. Harris, 2016 COA 159, ¶ 34 n.3 (concluding that it was
not a search for officers to use binoculars to look at the defendant’s
13
pastures from a neighboring property); People v. Oynes, 920 P.2d
880, 882-83 (Colo. App. 1996) (concluding that it was not a search
for a police officer to look into a window of a house with binoculars
where there was no record evidence that the binoculars were
“extraordinarily powerful”).
¶ 31 Our review of the surveillance video suggests that the
magnification power of the zoom on the pole camera was similar to
that of standard binoculars that any civilian can purchase. Thus, it
would not be a search for a police officer to climb a utility pole and
look over a privacy fence into a homeowner’s backyard with
equipment similar to the pole camera. See Sundheim v. Bd. of Cty.
Comm’rs, 904 P.2d 1337, 1351 (Colo. App. 1995) (concluding that
“the use of a camera with a telescopic lens” did not transform a
lawful observation into an unreasonable search), aff’d, 926 P.2d
545 (Colo. 1996).
¶ 32 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 or with a
telescopic camera. It involved the installation of a video camera
that allowed police to conduct continuous visual surveillance —
14
from the police station — of Tafoya’s property — including the area
behind his privacy fence — for more than three months.
C. Does the Continuity and Extended Duration of Video
Surveillance Make a Difference to the “Search” Analysis?
¶ 33 Our research indicates 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. These courts’
primary, underlying rationale is that a pole camera only captures
events that a police officer or utility worker situated on the pole
could see. Significantly, the nature, continuity, and extended
duration of police observation from a pole camera are (explicitly or
implicitly) considered irrelevant to their “search” analyses. See
Houston, 813 F.3d at 287-90 (holding that ten-week-long pole
camera surveillance was not a Fourth Amendment search, and
noting that the police had the same view as “passersby on public
roads”); United States v. Bucci, 582 F.3d 108, 116-17 (1st Cir. 2009)
(same holding regarding eight months of pole camera surveillance of
an unfenced property); United States v. Jackson, 213 F.3d 1269,
1279-81 (10th Cir.) (same general holding), cert. granted, judgment
15
vacated, and case remanded on other grounds, 531 U.S. 1033
(2000); United States v. Kay, No. 17-CR-16, 2018 WL 3995902, at
*1-3 (E.D. Wis. Aug. 21, 2018) (unpublished opinion) (same holding
regarding three months of pole camera surveillance); United States
v. Tuggle, No. 16-cr-20070-JES-JEH, 2018 WL 3631881, at *3 (C.D.
Ill. July 31, 2018) (unpublished opinion) (same holding regarding
eighteen months of pole camera surveillance of an unfenced
property); United States v. Mazzara, No. 16 Cr. 576, 2017 WL
4862793, at *8-12 (S.D.N.Y. Oct. 27, 2017) (unpublished opinion)
(same holding regarding twenty-one months of pole camera
surveillance); United States v. Pratt, No. 16-cr-20677-06, 2017 WL
2403570, at *4-5 (E.D. Mich. June 2, 2017) (unpublished opinion)
(same holding regarding fourteen months of pole camera
surveillance); United States v. Brooks, 911 F. Supp. 2d 836, 841-43
(D. Ariz. 2012) (same holding regarding five months of pole camera
surveillance); State v. Torres, No. 2 CA-CR 2010-0283, 2011 WL
4825640, at *1-4 (Ariz. Ct. App. Oct. 12, 2011) (unpublished
opinion) (same holding regarding three months of pole camera
surveillance); State v. Rigel, 97 N.E.3d 825, 830-31 (Ohio Ct. App.
16
2017) (same holding regarding 138 days of pole camera
surveillance).
¶ 34 We are not, however, bound by these decisions. See People v.
Dunlap, 975 P.2d 723, 748 (Colo. 1999) (Colorado courts are “not
bound by a federal circuit court’s interpretation of federal
constitutional requirements.”); Wal-Mart Stores, Inc. v. United Food
& Commercial Workers Int’l Union, 2016 COA 72, ¶ 17 (The Colorado
Court of Appeals is “not bound by the decisions of the courts of
other states.”).
¶ 35 And unlike the cases noted above, we (like some other courts)
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.” See United States v.
Cuevas-Sanchez, 821 F.2d 248, 250-51 (5th Cir. 1987) (holding that
two-month-long pole camera surveillance of fenced-in backyard
constituted a search); United States v. Moore-Bush, 381 F. Supp. 3d
139, 143-50 (D. Mass. 2019) (same holding regarding eight months
of pole camera surveillance); United States v. Vargas, No. CR-13-
6025, 2014 U.S. Dist. LEXIS 184672-EFS, at *13-37 (E.D. Wash.
Dec. 15, 2014) (same holding regarding one month of pole camera
17
surveillance of mostly enclosed front yard); Shafer v. City of
Boulder, 896 F. Supp. 2d 915, 929-32 (D. Nev. 2012) (same holding
regarding two months of pole camera surveillance of fenced
backyard); State v. Jones, 903 N.W.2d 101, 106-14 (S.D. 2017)
(same holding regarding two months of pole camera surveillance).
¶ 36 “[U]nfettered use of surveillance technology could
fundamentally alter the relationship between our government and
its citizens[.]” Jones, 903 N.W.2d at 112 (citation omitted). “Hidden
video surveillance is one of the most intrusive investigative
mechanisms available to law enforcement.” United States v. Nerber,
222 F.3d 597, 603 (9th Cir. 2000). “[A] camera monitoring all of a
person’s backyard activities . . . provokes an immediate negative
visceral reaction: indiscriminate video surveillance raises the
spectre of the Orwellian state.” Cuevas-Sanchez, 821 F.2d at 251.
The question we consider is whether this sort of continuous video
surveillance is “‘inconsistent with the aims of a free and open
society.’” People v. Oates, 698 P.2d 811, 816 (Colo. 1985) (quoting
Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58
Minn. L. Rev. 348, 403 (1974)).
18
¶ 37 Although Jones, 565 U.S. 400, involved a different type of
surveillance, it is instructive. There, police attached a GPS tracking
device to the defendant’s car and tracked his location for over four
weeks. See id. at 402-03. The majority opinion held that the use of
the GPS tracker constituted a search because of the physical
trespass of attaching the tracker to the car. See id. at 402-13.
However, in a concurring opinion, Justice Alito, joined by three
other currently sitting justices, warned about the use of technology
to monitor civilians’ activities for long periods of time. See id. at
418-31. He wrote:
In the pre-computer age, the greatest
protections of privacy were neither
constitutional nor statutory, but practical.
Traditional surveillance for any extended
period of time was difficult and costly and
therefore rarely undertaken. . . . Devices like
the one used in the present case, however,
make long-term monitoring relatively easy and
cheap. . . . [T]he use of longer term GPS
monitoring in investigations of most offenses
impinges on expectations of privacy.
Id. at 429-30 (Alito, J., concurring in the judgment).
¶ 38 In a separate concurring opinion, Justice Sotomayor “agree[d]
with Justice Alito that, at the very least, ‘longer term GPS
monitoring in investigations of most offenses impinges on
19
expectations of privacy.’” Id. at 415 (Sotomayor, J., concurring)
(quoting id. at 430 (Alito, J., concurring)); see also id. at 416
(“Awareness that the Government may be watching chills
associational and expressive freedoms.”).
¶ 39 In Carpenter, 585 U.S. ___, 138 S. Ct. 2206, the United States
Supreme Court incorporated the Jones concurrences in the course
of deciding that the government’s acquisition of an individual’s cell-
site location information (CSLI) from wireless carriers was a
“search” under the Fourth Amendment. The Court, quoting with
approval Justice Alito’s and Justice Sotomayor’s Jones
concurrences, said that “‘longer term GPS monitoring in
investigations of most offenses impinges on expectations of privacy’
— regardless whether those movements were disclosed to the public
at large.” Id. at ___, 138 S. Ct. at 2215 (quoting Jones, 565 U.S. at
415 (Sotomayor, J., concurring); 430 (Alito, J., concurring in the
judgment)). It continued that “[p]rior to the digital age, law
enforcement might have pursued a suspect for a brief stretch, but
doing so ‘for any extended period of time was difficult and costly
and therefore rarely undertaken.’” Id. at ___, 138 S. Ct. at 2217
(quoting Jones, 565 U.S. at 429 (Alito, J., concurring in the
20
judgment)). Therefore, the Carpenter Court stated that under
Jones, a search occurs when the government subjects a vehicle to
“pervasive tracking” on public roads. Id. at ___, 138 S. Ct. at 2220
(citing Jones, 565 U.S. at 415 (Sotomayor, J., concurring), 430
(Alito, J, concurring in the judgment)).
¶ 40 The (or, at least, a) lesson from the Jones concurrences and
Carpenter is that not all governmental conduct escapes being a
“search” simply because a citizen’s actions were otherwise
observable by the public at large.
¶ 41 We acknowledge that, by its own terms, the Court’s decision in
Carpenter “is a narrow one” and does not “call into question
conventional surveillance techniques and tools, such as security
cameras.” Id. at ___, 138 S. Ct. at 2220; see also Mazzara, 2017
WL 4862793, at *11 (“The reality is that society has come to accept
a significant level of video surveillance. Security cameras are
routinely installed in public parks, restaurants, stores, government
buildings, schools, banks, gas stations, elevators, and all manner of
public spaces. Additionally, security cameras are increasingly being
installed on public streets, highways, and utility poles.”).
21
¶ 42 A pole camera, however,
is not a security camera by any stretch of the
imagination. . . . Law enforcement officers did
not install the [p]ole [c]amera here to ‘guard
against . . . crime,’ but to investigate suspects.
Indeed, the prototypical security camera exists
to monitor a heavily trafficked area or
commercial establishment. Security camera
operators often install their cameras in plain
view or with warning signs to deter
wrongdoers. The Government hid the [p]ole
[c]amera out of sight of its targets and does not
suggest that it did so to prevent criminal
activity.
Moore-Bush, 381 F. Supp. 3d at 145-46 (citation omitted).
¶ 43 Several lower federal court decisions upholding the
warrantless use of pole cameras have distinguished Jones (and
would presumably distinguish Carpenter) on the ground that GPS
or CSLI tracking of a person’s location is more invasive than video
surveillance of a person’s home. See, e.g., Houston, 813 F.3d at
290; Kay, 2018 WL 3995902, at *3. We wholeheartedly disagree.
Visual video surveillance spying on what a person is doing in the
curtilage of his home behind a privacy fence for months at a time is
at least as intrusive as tracking a person’s location — a dot on a
map — if not more so. See United States v. Garcia-Gonzalez, No. CR
14-10296-LTS, 2015 WL 5145537, at *8 (D. Mass. Sept. 1, 2015)
22
(unpublished opinion) (“GPS data provides only the ‘where’ and ‘how
long’ of a person’s public movements insofar as the person remains
close to the monitored vehicle. Long-term around-the-clock
monitoring of a residence chronicles and informs the ‘who, what,
when, why, where from, and how long’ of a person’s activities and
associations unfolding at the threshold adjoining one’s private and
public lives.”).
¶ 44 As the concurring opinion in Houston noted, “in most cases,
ten weeks of video surveillance of one’s house could reveal
considerable knowledge of one’s comings and goings for
professional and religious reasons, not to mention possible
receptions of others for these and possibly political purposes.”
Houston, 813 F.3d at 296 (Rose, J., concurring).
¶ 45 Indeed, as the Supreme Court of South Dakota recently
explained,
[t]he information gathered through the use of
targeted, long-term video surveillance will
necessarily include a mosaic of intimate details
of the person’s private life and associations. At
a minimum, it could reveal who enters and
exits the home, the time of their arrival and
departure, the license plates of their cars, the
activities of the occupant’s children and
friends entering the home, information gleaned
23
from items brought into the home revealing
where the occupant shops, how garbage is
removed, what service providers are
contracted, etc.
Jones, 903 N.W.2d at 110; see also Garcia-Gonzalez, 2015 WL
5145537, at *5 (“The [pole camera] surveillance captured all types of
intimate details of life centered on [the defendant’s] home. The
agents saw when he came and went. They saw his visitors. They
saw with whom he traveled. They identified both his frequent and
infrequent visitors. They identified the cars each of them drove.
They saw how he dressed every day. They saw what he carried in
and out of his home, even when he carried out his trash. They
knew when he stayed home and when he did not.”).
¶ 46 In Jones, the South Dakota Supreme Court continued,
[t]he pole camera captured [the defendant’s]
activities outside his home twenty-four hours a
day, sent the recording to a distant location,
and allowed the officer to view it at any time
and to replay moments in time. . . . [T]his type
of surveillance does not grow weary, or blink,
or have family, friends, or other duties to draw
its attention. Much like the tracking of public
movements through GPS monitoring,
long-term video surveillance of the home will
generate “a wealth of detail about [the home
occupant’s] familial, political, professional,
religious, and sexual associations.” The
recordings could be stored indefinitely and
24
used at will by the State to prosecute a
criminal case or investigate an occupant or a
visitor.
Id. at 112 (quoting Jones, 565 U.S. at 415 (Sotomayor, J.,
concurring)); see also Moore-Bush, 381 F. Supp. 3d at 149 (“[T]he
Government can go back on a whim and determine a home
occupant’s routines with to-the-second specificity.”).
¶ 47 We are unpersuaded by the People’s arguments that the area
of Tafoya’s driveway behind his privacy fence hypothetically could
be seen by a next-door neighbor peering through a small gap in the
privacy fence or by the adjacent apartment dweller on a second-
story private outdoor stairway (or, for that matter, by someone in a
helicopter, or by someone looking through the camera on a drone).
¶ 48 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. And helicopters and publicly
available drones do not remain in flight for three months at a time.
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. As the United States
25
Court of Appeals for the District of Columbia has explained in the
context of a GPS tracking device,
the whole of a person’s movements over the
course of a month is not actually exposed to
the public because the likelihood a stranger
would observe all those movements is not just
remote, it is essentially nil. It is one thing for a
passerby to observe or even to follow someone
during a single journey as he goes to the
market or returns home from work. It is
another thing entirely for that stranger to pick
up the scent again the next day and the day
after that, week in and week out, dogging his
prey until he has identified all the places,
people, amusements, and chores that make up
that person’s hitherto private routine.
United States v. Maynard, 615 F.3d 544, 560 (D.C. Cir. 2010), aff’d
in part sub nom. Jones, 565 U.S. 400; see also Moore-Bush, 381 F.
Supp. 3d at 149 (“[O]n a residential street, neighbors notice each
other’s peculiar habits. Yet they would not notice all of their
neighbors’ habits[.]”); cf. Garcia-Gonzalez, 2015 WL 5145537, at *3
(“Physical surveillance, in theory, could gather the same
information as the pole cameras. However, physical surveillance is
difficult to perform. . . . Moreover, here, the officers . . . could not
have successfully conducted this surveillance in person. [The
26
defendant] (and others) likely would have discovered the
surveillance.”).
¶ 49 It would be all too easy to overlook these issues based on the
significant amount of controlled substances that police ultimately
found on Tafoya’s property. But as the Supreme Court explained
long ago in United States v. Di Re,
a search is not to be made legal by what it
turns up. In law it is good or bad when it
starts and does not change character from its
success. . . . [T]he forefathers, after
consulting the lessons of history, designed our
Constitution to place obstacles in the way of a
too permeating police surveillance, which they
seemed to think was a greater danger to a free
people than the escape of some criminals from
punishment.
332 U.S. 581, 595 (1948) (footnote omitted); see also Riley, 488 U.S.
at 463-66 (Brennan, J., dissenting) (“[W]e dismiss this as a ‘drug
case’ only at the peril of our own liberties. . . . The Fourth
Amendment demands that we temper our efforts to apprehend
criminals with a concern for the impact on our fundamental
liberties of the methods we use.”).
¶ 50 And as the Supreme Court explained in Johnson v. United
States,
27
[c]rime, even in the privacy of one’s own
quarters, is, of course, of grave concern to
society, and the law allows such crime to be
reached on proper showing. The right of
officers to thrust themselves into a home is
also a grave concern, not only to the individual
but to a society which chooses to dwell in
reasonable security and freedom from
surveillance. When the right of privacy must
reasonably yield to the right of search is, as a
rule, to be decided by a judicial officer, not by
a policeman or Government enforcement
agent.
333 U.S. 10, 14 (1948).
¶ 51 For these reasons, we conclude that the three-month-long
surveillance of the curtilage of Tafoya’s home through the pole
camera constituted a search under the Fourth Amendment to the
United States Constitution.4
4 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. See Jones, 565 U.S. at 430 (Alito, J.,
concurring in the judgment) (“We need not identify with precision
the point at which the tracking of this vehicle became a search, for
the line was surely crossed before the 4-week mark.”). We express
no opinion here whether we would reach the same conclusion if (1)
the duration of the surveillance had been much shorter (say, one or
two weeks); or (2) the police had, after such period of time, sought a
warrant based on what had been observed or discontinued its
warrantless surveillance but later resumed it after a significant
interval of time and upon acquiring further information.
28
¶ 52 Because the fruits of the police surveillance were used to
obtain — and were critical to the acquisition of — the warrant to
search Tafoya’s property, the trial court should (in the absence of
an applicable exception to the exclusionary rule) have suppressed
the evidence recovered from the search of the property.5 And
because the evidence recovered from the property — the drugs —
was critical to the prosecution’s case, its admission into evidence
cannot be considered harmless beyond a reasonable doubt. See
McKnight, ¶ 60 (determining that an unconstitutional search was
not harmless beyond a reasonable doubt where the search
uncovered the drug evidence used to convict the defendant).
Consequently, Tafoya’s convictions must be reversed and the matter
remanded for a new trial.
III. Proceedings on Remand
¶ 53 The People argue that, in the event we conclude that the pole
camera surveillance constituted a search, on remand the trial court
5 The People assert that the application of the good faith exception
to the exclusionary rule would have supported the admission of the
evidence at trial. But because the prosecution did not raise this
assertion in the trial court, we need not consider it. See People v.
McKnight, 2019 CO 36, ¶ 61.
29
should be allowed to consider whether the suppression motion
should be denied on some other ground (for example, that the
exclusionary rule should not apply). Tafoya disagrees, emphasizing
that the People did not raise any such argument in the trial court.
¶ 54 During the pendency of this appeal, the supreme court issued
its decision in People v. Morehead, 2019 CO 48. That binding
precedent makes clear that it is not our place to direct the trial
court whether to exercise its discretion on remand to consider any
new arguments that the People might make in opposition to the
suppression motion.
IV. Conclusion
¶ 55 The judgment of conviction is reversed, and the case is
remanded for a new trial.
JUDGE RICHMAN and JUDGE BROWN concur.
30