2019 COA 176
Colo. Ct. App.2019Background
- Police covertly installed a video camera atop a utility pole across the street from Tafoya’s house and continuously recorded his property from May 16 to August 24, 2015 (>3 months) without a warrant.
- The pole camera could pan, tilt, and zoom; detectives viewed live and recorded footage from the station. The camera gave an elevated view that included the area behind a six‑foot wooden privacy fence (the curtilage).
- On June 25 and August 24 officers observed vehicles drive past Tafoya’s privacy gate, Tafoya bending near a front tire, and white bags carried into a detached garage; a later stop of a third vehicle yielded $98,000 in a spare tire.
- Police then obtained a search warrant based on the pole‑camera observations and found roughly 20 pounds of methamphetamine and a half‑kilogram of cocaine in the garage; Tafoya was charged, tried, convicted, and sentenced.
- At suppression the trial court denied Tafoya’s motion, ruling the curtilage was exposed to the public (hypothetical vantage points) and that use of zoom/pole camera over time did not convert observation into a Fourth Amendment search.
- The Colorado Court of Appeals reversed: it held the prolonged, continuous, covert three‑month pole‑camera surveillance of the home’s curtilage constituted a warrantless Fourth Amendment search and ordered a new trial because the surveillance led to the search warrant and seized evidence.
Issues
| Issue | People’s Argument | Tafoya’s Argument | Held |
|---|---|---|---|
| Whether continuous, multi‑month warrantless pole‑camera surveillance of the curtilage is a Fourth Amendment search | The area was effectively exposed to the public (neighbors, apartment stairway, or public airspace); using zoom/pan is like augmenting natural vision (no search) | Covert, continuous months‑long video surveillance of curtilage is materially different from intermittent public observation and is highly intrusive — it is a search | The court held the three‑month continuous pole‑camera surveillance was a Fourth Amendment search requiring a warrant |
| Whether evidence obtained after the pole‑camera observations should be excluded | Evidence was admissible; good‑faith or public‑view theories could apply (but prosecution didn’t press good‑faith below) | Fruits of the unconstitutional surveillance must be suppressed | Because the pole surveillance produced evidence critical to the warrant, the trial court should have suppressed the evidence; convictions reversed and remanded for new trial |
Key Cases Cited
- Katz v. United States, 389 U.S. 347 (1967) (established subjective/objective reasonable‑expectation‑of‑privacy test)
- California v. Ciraolo, 476 U.S. 207 (1986) (observations from public airspace not a search when activities are plainly visible)
- Florida v. Riley, 488 U.S. 445 (1989) (plurality: aerial observation from 400 feet not a search under similar reasoning)
- United States v. Jones, 565 U.S. 400 (2012) (GPS tracking of a vehicle was a search; concurrences warned about long‑term electronic surveillance)
- Carpenter v. United States, 138 S. Ct. 2206 (2018) (acquisition of long‑term CSLI is a search; endorses concern about extended technological surveillance)
- United States v. Di Re, 332 U.S. 581 (1948) (success of a search does not retroactively legitimize an unlawful search)