People v. Tafoya

494 P.3d 613

The PEOPLE of the State of Colorado, Petitioner,

v.Rafael Phillip TAFOYA, Respondent.

Supreme Court Case No. 20SC9

Supreme Court of Colorado.

September 13, 2021

Attorneys for Petitioner: Philip J. Weiser, Attorney General, Rebecca A. Adams, Senior Assistant Attorney General, Trina Kissel Taylor, Assistant Attorney General, Denver, Colorado

Attorney for Respondent: Robert P. Borquez, Denver, Colorado

Attorneys for Amici Curiae American Civil Liberties Union, American Civil Liberties Union of Colorado, and Electronic Frontier Foundation: American Civil Liberties Union Foundation of Colorado, Mark Silverstein, Sara R. Neel, Denver, Colorado, American Civil Liberties Foundation Nathan Freed Wessler, New York, New York

En Banc

CHIEF JUSTICE BOATRIGHT delivered the Opinion of the Court.

¶1 Because the police suspected Rafael Tafoya of drug trafficking, they mounted a camera on a utility pole across the street from his house without first securing a warrant. The pole camera continuously recorded footage of Tafoya's property—including his backyard, which was otherwise hidden by a six-foot-high privacy fence—for more than three months. The camera could pan left and right, tilt up and down, and zoom in and out—all features that police could control while viewing the footage live. Police also indefinitely stored the footage for later review.

¶2 Based on activity that they observed from the footage, police obtained a warrant to search Tafoya's property. During the subsequent search pursuant to the warrant, the police found large amounts of methamphetamine and cocaine. The People charged Tafoya with two counts of possession with intent to distribute and two counts of conspiracy. Before trial, Tafoya moved to suppress all evidence obtained as a result of the pole camera surveillance, including the evidence seized pursuant to the search warrant, arguing that police use of the camera violated the Fourth Amendment. The trial court denied his motion and found that police use of the camera was not a "search" within the meaning of the Fourth Amendment. Tafoya was subsequently convicted on all counts.

¶3 A division of the court of appeals reversed, finding that police use of the pole camera under the facts of this case was a warrantless search. People v. Tafoya , 2019 COA 176, ¶¶ 2–3, 490 P.3d 532, 534. The People appealed, and we granted certiorari review.¹ We hold that police use of the pole camera to continuously video surveil Tafoya's fenced-in curtilage for three months, with the footage stored indefinitely for later review, constituted a warrantless search in violation of the Fourth Amendment. Accordingly, we affirm the judgment of the court of appeals.

I. Facts and Procedural History

¶4 A confidential informant told police about a possible drug "stash house" in Colorado Springs. Police determined that the possible stash house was Tafoya's residence. As a result, the police mounted a camera to the utility pole across the street from Tafoya's house. While actively watching the footage, police could adjust the pole camera by panning left and right, tilting up and down, and zooming in and out. The pole camera continuously recorded footage for more than three months, and police stored the footage indefinitely for later review. The police did not obtain a warrant authorizing the pole camera.

¶5 The area surveilled included Tafoya's front yard, backyard, and driveway. Tafoya's property has a long driveway that runs from the front of the property alongside the house and ends at a detached garage in the backyard. A six-foot-high, wooden privacy fence encloses the detached garage, the backyard, and the remaining half of the driveway. The fence includes a gate across the driveway, near where the driveway begins running alongside the house. The property has a large front yard so that the house and backyard are set back from the street. The pole camera, positioned across the street from the house, offered an elevated view of 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.² Due to the camera's elevated angle, it recorded any activity occurring in Tafoya's enclosed backyard, including Tafoya's movements on this portion of his property and his comings and goings. It also captured whether Tafoya had guests, how long they stayed, and any activities in which they engaged in the enclosed backyard.

¶6 Tafoya's backyard, however, was not completely shielded from the public. The fence had thin gaps between the wooden slats, which someone standing in the neighboring yard could look through.³ Additionally, the two-story apartment building abutting Tafoya's property had an exterior stairway leading to the second-floor units; from a particular spot on the stairway, one could look down and see some of Tafoya's backyard.

¶7 On June 25, 2015, police received a tip that a drug shipment would be delivered to Tafoya's house that day. A detective, therefore, started viewing the live footage from the pole camera and made the following observations: A man identified as Gabriel Sanchez drove a car up Tafoya's driveway. Tafoya then opened the gate to allow Sanchez to drive into the section of the driveway behind the privacy fence and closed the gate behind the car. Because of the pole camera's elevated position, the parked car remained partially visible over the privacy fence. The detective, who had previously zoomed in the pole camera, then observed Tafoya bend down at the front left tire of the car, but, because of the fence, the detective could not see what Tafoya was doing. After several minutes, Tafoya and Sanchez carried two white plastic bags into the detached garage.

¶8 Then, a pickup truck drove up Tafoya's driveway. Men from the truck carried a spare tire from the truck into Tafoya's detached garage. They eventually moved what appeared to be the same spare tire from the garage back to the truck and drove away.

Police later stopped the truck and discovered $98,000 in the spare tire.

¶9 The pole camera continued to record Tafoya's property. On August 23, 2015, police received another tip that a drug shipment would be delivered to Tafoya's house the following day. On August 24, a detective began watching the pole camera's live footage. He observed the same routine: Sanchez drove the car up the driveway, Tafoya allowed the car past the gate, and Tafoya closed the gate. The detective zoomed the camera in and observed Tafoya bend down near the front left tire; again, because of the fence, the detective could not see what Tafoya was doing. The detective eventually saw Tafoya carry white plastic bags into the detached garage.

¶10 Based on these observations, police obtained a warrant to search Tafoya's property. During the subsequent search, the police discovered white plastic bags containing methamphetamine and cocaine inside the detached garage.

¶11 The People 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. Before trial, Tafoya moved to suppress all evidence obtained as a result of the pole camera surveillance, including the evidence police found while executing the search warrant. He argued that police use of the pole camera constituted a warrantless search in violation of the Fourth Amendment.⁴

¶12 The trial court denied the motion to suppress. It found that Tafoya did not have a reasonable expectation of privacy in the area recorded by the pole camera on June 25 and August 24. The trial court recognized that the area at issue constituted curtilage and that, typically, "an individual has a reasonable expectation of privacy to his curtilage." However, it also noted that "curtilage is not protected from observations that are lawfully made from outside its perimeter not involving physical intrusion," and it cited United States v. Bucci , 582 F.3d 108, 116–17 (1st Cir. 2009), which held that video surveillance of a home using a pole camera for eight months was not a search where the home did not have a fence, gates, or shrubbery obscuring the view of the curtilage.

¶13 The trial court reasoned that, "notwithstanding the fencing" around Tafoya's property, the area surveilled was "exposed to the public" because members of the public could see it through the gaps in the fence, from the apartment stairway, or from the top of the utility pole. Because "[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection," Katz v. United States , 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the trial court found that Tafoya had no reasonable expectation of privacy in the area surveilled. It also noted that "[l]aw enforcement may use technology ... to ‘augment[ ] the sensory faculties bestowed upon them at birth’ without violating the Fourth Amendment" (quoting United States v. Knotts , 460 U.S. 276, 282, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) ).

¶14 The trial court also rejected Tafoya's argument that, even if the area surveilled was "exposed to the public," the length of surveillance rendered the search unconstitutional because a person would not have been able to perch atop the utility pole and continuously surveil the area for over three months. The court deemed the impracticability of a person observing the curtilage for that length of time irrelevant under United States v. Houston , 813 F.3d 282, 289 (6th Cir. 2016), where the Sixth Circuit held that "it is only the possibility that a member of the public may observe activity from a public vantage point—not the actual practicability of law enforcement's doing so without technology—that is relevant for Fourth Amendment purposes" (emphases added).

¶15 Finally, the trial court rejected Tafoya's reliance on United States v. Jones , 565 U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), where the Supreme...