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Police violated Colorado Springs man’s constitutional rights with 24/7 surveillance, court rules

The Colorado Supreme Court ruled that the officers violated the man’s Fourth Amendment rights when they set up a camera on a utility pole and spied on him for three months.

The Ralph L. Carr Colorado Judicial Center is seen on Tuesday, July 20, 2021, in Denver. (Olivia Sun, The Colorado Sun)

Colorado Springs police officers went too far — infringing on a man’s Fourth Amendment right to privacy — when they installed a camera on a utility pole across the street from his home and recorded footage for three months without obtaining a search warrant, the Colorado Supreme Court ruled Monday.

Police mounted the camera in June 2015 after receiving a tip that Rafael Phillip Tafoya was involved in drug trafficking, according to the ruling. It wasn’t until after reviewing the footage, which showed Tafoya transporting drugs into his detached garage, that police applied for a warrant to search his home and found large amounts of methamphetamine and cocaine.

Tafoya was charged with two counts of drug possession with intent to distribute and two counts of conspiracy and later, found guilty. He was sentenced to 15 years in prison.

Monday’s ruling reversed Tafoya’s convictions after a judge found that the officers’ use of the pole camera was a warrantless search. It also distinguished between police’s ability to watch suspects before obtaining a search warrant using traditional surveillance methods — such as peering through a fence — versus using technology to watch someone 24 hours a day over an extended period of time.

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

Before Tafoya headed to trial, he petitioned to suppress all evidence obtained by the pole camera, as well as the evidence police found after obtaining the search warrant, arguing that police’s use of the camera violated his rights under the Fourth Amendment, according to the ruling.

The camera could pan left and right, tilt up and down and zoom in and out — all features that the police could control while viewing the footage live, the ruling stated. Police could also store the footage to review at a later time.

The trial court denied his motion, deciding that the police’s use of the camera was not a “search” under the Fourth Amendment. The lower court found that Tafoya did not have a reasonable expectation of privacy in the area recorded by the pole camera, reasoning that his home was exposed to the public because people could see into the back yard through the gaps in the 6-foot privacy fence, from the stairway in a two-story apartment building next door and from atop the utility pole.

After Tafoya appealed the court’s decision, the issue was presented to the Supreme Court, which found that the police’s surveillance of his home all day, every day, for three months was “at least as intrusive as tracking a person’s location — a dot on a map — if not more so,” the ruling stated.

The court found that Tafoya demonstrated a reasonable expectation of privacy in the area near his home, which had a wooden gate to further prevent the public from seeing into his backyard.

The Supreme Court also ruled that the police’s surveillance was surreptitious, noting that if the police department used traditional surveillance methods, Tafoya surely would have noticed an officer monitoring his property from the utility pole for three months.

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