Police video surveillance violated Colorado Springs man’s constitutional rights

Colorado Springs police officers violated a man’s constitutional rights when they installed a video camera on a utility pole near his home and spied on him for months without ever receiving a search warrant to do so, the Colorado Supreme Court ruled Monday.

The 24-hour-a-day, 3-month-long surveillance of Rafael’s Tafoya’s front yard, house, driveway and part of his backyard violated his Fourth Amendment protections against unreasonable searches and seizures, the justices ruled, overturning Tafoya’s conviction and 15-year prison sentence on drug trafficking charges.

The unanimous decision differentiates between police officers personally watching suspects and officers using technology to record a person’s every move for a long period of time. Police have broad leeway to watch suspects without first getting a search warrant — say by peering through a fence or climbing the steps of a nearby building to look into a yard. But that’s different from using a subtle video camera to record a person 24/7 for months, the justices concluded.

“We find the extended duration and the continuity of the surveillance here to be constitutionally significant,” Chief Justice Brian Boatright wrote for the court.

Tafoya had a reasonable expectation of privacy in his yard even though parts of the area were visible to the public from the steps of a nearby building and through the slats in his fence if you moved onto his property, the court found. The police department should have received permission from a court — a search warrant — before setting up the video camera, which could pan and zoom in order to see over Tafoya’s 6-foot-tall privacy fence.

The justices also rejected the state’s argument that the video surveillance was not as intrusive as GPS tracking or the use of cellphone data, finding the constant surveillance “shares many of the troubling attributes of GPS tracking,” in that it created a comprehensive, precise record of activity at Tafoya’s home, the information was stored so that police could access it for years, and it was “surreptitious compared to traditional surveillance.”

“If a police officer had manned the utility pole continuously for three months, obviously Tafoya would have noticed,” Boatright wrote.

Robert Borquez, Tafoya’s attorney, said Monday it was “a good day if you value your right to privacy.” Requiring police officers to obtain a search warrant before conducting such surveillance is an important check on police power, he said.

“It means the police do not get to make the decision unilaterally to look into someone’s property,” he said. “They have to run this by a judge who will either approve or reject it. And there may be conditions attached, such as the duration of the warrant. It may not be open-ended.”

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