A police force can’t set up a camera to peer over the top of a man’s privacy fence, then record him for months, before finally filing criminal charges against him.
That’s the ruling from the state supreme court in Colorado, where the decision freed suspect Rafael Tafoya from what was expected to be a significant prison sentence.
According to a report in Courthouse News, officers in Colorado Springs set up a special camera on top of a utility pole next to Tafoya’s home after a “tip” from an anonymous source.
Without a search warrant, they watched him and his property, recording events there, for months.
Eventually they charged him with drug violations and seized meth and cocaine from his home, the report said.
“The problem was a Fourth Amendment violation because it was a warrantless search,” defense lawyer Robert Borquez explained to Courthouse News. “It’s conceivable that police could get a warrant to look over somebody’s fence, but it’s not up to the police to do that on their own. They have to go in front of a judge who’s going to review the application.”
Tafoya had been convicted at the trial court level but was released in 2020 on an appeal bond when the intermediate court reversed the previous ruling. The Supreme Court in the state now has affirmed that.
The ruling explained the search was “warrantless” because police used a pole camera “to continuously video surveil Tafoya’s fenced-in curtilage for three months – with the footage stored indefinitely for later review.”
The ruling admitted that tech will be significant in future disputes.
“With technology constantly advancing to allow cheaper and more comprehensive monitoring, courts must ask whether the search at issue in a specific case ‘involved a degree of intrusion that a reasonable person would not have anticipated,'” the opinion said.
The fence indicated that there was a reasonable expectation of privacy, the judges said.
And they noted police could control the camera to view the front yard, front of Tafoya’s house, driveway, backyard, and detached garage, including portions of Tafoya’s property not usually visible to members of the public.”
The recordings caught not only Tafoya and its “movements,” but also his guests, revealing how long they stayed and any activities they pursued.
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