EFF Legal Intern Hannah Donahue co-wrote this post.

Last week, the Colorado Supreme Court ruled, in a case called People v. Tafoya, that three months of warrantless continuous video surveillance outside a home by the police violated the Fourth Amendment. We, along with the ACLU and the ACLU of Colorado, filed an amicus brief in the case.

The police, after receiving a tip about possible drug activity, attached a camera to a utility pole across from Rafael Tafoya’s home that captured views of his front yard, driveway, and back yard. The back yard and part of the driveway were enclosed within a six-foot high privacy fence, which obscured their view from passersby. However, the fence did not block the view from the high vantage of the utility pole. The police could observe a live video feed of the area and could remotely pan, tilt, and zoom the camera. They also stored the footage indefinitely, making it available for later review at any time.

At trial, Tafoya moved to suppress all evidence resulting from the warrantless pole camera surveillance, arguing that it violated the Fourth Amendment. The trial court denied the motion, and Tafoya was convicted on drug trafficking charges. A division of the court of appeals reversed, agreeing with Tafoya that the surveillance was unconstitutional.

Last week, Colorado’s Supreme Court upheld the court of appeals opinion, finding the continuous, long-term video surveillance violated Tafoya’s reasonable expectation of privacy. Citing to United States v. Jones and Carpenter v. United States, the court stated: “Put simply, the duration, continuity, and nature of surveillance matter when considering all the facts and circumstances in a particular case.” The court held that 24/7 surveillance for more than three months represented a level of intrusiveness that “a reasonable person would not have anticipated.”

This ruling is in line with a recent opinion from the Massachusetts Supreme Judicial Court in another case involving long-term pole camera surveillance: Commonwealth v. Mora. In that case, the state’s highest court held that the surveillance violated Massachusetts’ state constitutional equivalent to the Fourth Amendment. The Mora court recognized that advances in law enforcement officers’ ability to monitor spaces exposed to public view should not necessarily diminish peoples’ subjective expectations of privacy. Like Tafoya, the court held that the extended duration and continuous nature of the surveillance mattered. Even where people “subjectively may lack an expectation of privacy in some discrete actions they undertake in unshielded areas around their homes, they do not expect that every such action will be observed and perfectly preserved for the future.” We filed an amicus brief in Mora, as well as an earlier federal district court case from Washington state, United States v. Vargas, that preceded Carpenter but held similarly.

However, several other courts have held that pole camera surveillance—even for periods of time much longer than three months—is constitutionally acceptable. For example, the Seventh Circuit held recently in United States v. Tuggle that police use of a pole camera to surveil a defendant’s home for 18 months did not violate the Fourth Amendment because the surveilled area was fully exposed to public view. The Tuggle court expressed serious reservations, though, about what its decision could mean for the trajectory of government surveillance technologies. Similarly, a panel of the First Circuit in United States v. Moore-Bush overturned a district court’s decision holding that eight months of warrantless pole camera surveillance violated the Fourth Amendment. The First Circuit granted en banc review of the panel decision, and we are currently waiting for the court to issue its opinion.

One concern with the Colorado Supreme Court’s ruling in Tafoya, is its extensive focus on the fact that Tafoya maintained a six-foot privacy fence around his backyard and driveway as evidence of his subjective expectation of privacy. We argued in our amicus brief that the presence of such physical barriers should not be a determining factor because this standard would disproportionately harm people of lesser means. Basing a person’s expectation of privacy on their ability to obscure their property from view would mean that only those who live in wealthy communities—where they can build a fence, where their properties are set back far enough from poles, or where utility lines are buried underground—would be protected from pole camera surveillance. People who cannot afford to build privacy fences or who are not allowed to do so (those who rent or who live in multi-unit residential buildings, for example) would be disproportionately and negatively impacted by such a rule.

We also voiced these concerns in the amicus briefs we filed in Mora and Moore-Bush. The Mora court acknowledged these concerns, explaining that “a resource-dependent approach” undermines protections against warrantless searches by requiring people to “erect physical barriers around their residences before invoking the protections of the Fourth Amendment.” The court stated it would “not undermine [] long-held egalitarian principles” that constitutional rights should apply equally to even the poorest people.

We are following this issue closely and will continue to argue that warrantless residential pole-camera surveillance violates the Fourth Amendment and disproportionately harms disadvantaged communities.

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