People v. Tafoya

• Decision Date: 27 November 2019
• Docket Number: Court of Appeals No. 17CA1243
• Court: Colorado Court of Appeals
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Rafael Phillip TAFOYA, Defendant-Appellant.

490 P.3d 532

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Rafael Phillip TAFOYA, Defendant-Appellant.

Court of Appeals No. 17CA1243

Colorado Court of Appeals, Division II.

Announced November 27, 2019

Philip J. Weiser, Attorney General, Trina K. Taylor, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Robert P. Borquez, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE DAILEY

¶1 Police, acting without a search warrant, installed a video camera near the top of a utility pole (the pole camera) to surveil the home of defendant, Rafael Phillip Tafoya. For more than three months, the elevated camera provided police with continuous, recorded video surveillance of the area surrounding Tafoya's home, including an area behind his privacy fence. Based on what police observed over that lengthy period, they obtained a search warrant, physically searched Tafoya's property, and found a large amount of controlled substances.

¶2 The issue in this case is whether the continuous, three-month-long use of the pole camera constituted a search under the Fourth Amendment to the United States Constitution. We conclude that it did.

¶3 Because the trial court concluded otherwise, we reverse Tafoya's two convictions for possession with intent to distribute a controlled substance and his two conspiracy convictions and remand for a new trial.

I. Background

¶4 A confidential informant told police about a possible drug "stash house" in Colorado Springs. Based on specific information provided by the informant, police identified Tafoya's home as the possible stash house.

¶5 Without applying for or obtaining a search warrant, police installed the pole camera near the top of a utility pole across the street from Tafoya's property. Because the utility pole was across the street, police did not have to enter Tafoya's property to install it.

¶6 The pole camera continuously recorded video surveillance footage of Tafoya's property for more than three months from May 16, 2015, to August 24, 2015. There is no indication that Tafoya knew his property was under surveillance. Detectives could watch the video surveillance footage at the police station. They reviewed already-recorded footage on a regular basis. They also sometimes watched live-streaming footage as things were occurring on Tafoya's property.

¶7 The pole camera had some useful technological capabilities. From the police station, the detectives could pan the camera left and right and up and down. The camera also had a zoom feature. With the live-streaming video surveillance, the zoom had buffering so, as explained at the suppression hearing, a detective could "see very close to things, faces, to be able to identify objects, things of that nature."

¶8 At Tafoya's property, a long driveway runs from the street, along the side of Tafoya's home, to a detached garage in the backyard. A chain-link fence at the front of the property separates it from the public sidewalk. Farther into the property, as the driveway begins running along the side of the home, is a wooden privacy fence, approximately six feet high and including a gate across the driveway. Behind the privacy fence is the remainder of the driveway, which is next to the residence and in front of the detached garage. The pole camera provided an elevated view of Tafoya's property, including the area of the driveway behind his privacy fence, which could not be seen from the public sidewalk or the street.

¶9 On June 25, 2015 — when the pole camera had already been recording video surveillance footage for more than a month — police received a tip from an informant that a drug shipment would be delivered to Tafoya's house later that day. At the police station, a detective started watching live-streaming footage from the pole camera.

¶10 The detective saw a man named Gabriel Sanchez drive a car from the street up Tafoya's driveway. Tafoya opened the gate on the privacy fence. Sanchez drove the car past the privacy fence, and Tafoya closed the gate. From the elevated view of the pole camera, the parked car was partially visible over the privacy fence. With the camera zoomed in, the detective observed Tafoya bend down near the left front tire of the car. But because that view was blocked by the privacy fence, precisely what Tafoya was doing at the left front tire could not be seen. After many minutes of Tafoya bending down near the tire, the detective saw Tafoya and Sanchez carry two white plastic bags containing unknown items into the detached garage.

¶11 A pickup truck then drove from the street up Tafoya's driveway. Men got out of the truck and moved a spare tire from the truck into Tafoya's garage. Later, they moved the spare tire from the garage back to the truck and drove away. Police later stopped the truck and found $98,000 in the spare tire.

¶12 The police continued recording video surveillance footage of Tafoya's property for two more months. Then, on August 23, 2015, police received a tip from an informant that another drug shipment would arrive at Tafoya's property the next day. On August 24, a detective began viewing live-streaming footage of Tafoya's property, and ultimately observed similar activity. Sanchez drove the same car up Tafoya's driveway, Tafoya opened the gate, Sanchez drove the car past the privacy fence, and Tafoya closed the gate. Still, from the elevated view of the pole camera, the detective could see Tafoya again bend down near the left front tire of the car and then carry white plastic bags containing unknown items into the garage.

¶13 Police then obtained a search warrant and conducted a physical search of Tafoya's property. Inside the garage, they found two white garbage bags containing a total of approximately twenty pounds of methamphetamine and a half kilogram of cocaine.

¶14 The prosecution 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, and alleged that the crimes occurred during the date range of June 25, 2015, through August 24, 2015.

¶15 Tafoya filed a motion to suppress, arguing that the use of the pole camera constituted a warrantless search of his property in violation of the Fourth Amendment.

¶16 In the People's response, and at the suppression hearing, one of the People's arguments was that a person — hypothetically — could view the area of Tafoya's driveway behind the privacy fence from different vantage points. The People introduced photographs at the suppression hearing from those vantage points. For example, the privacy fence had very thin gaps between each of the wooden boards, so Tafoya's next-door neighbor hypothetically could have stood next to the privacy fence, peered through a thin gap, and seen what was occurring behind Tafoya's privacy fence on June 25, 2015, and August 24, 2015. Also, a two-story apartment building with an exterior stairway leading up to one of the second-story apartments abuts Tafoya's backyard. Again, hypothetically, the resident of that apartment, while standing at a particular spot on the stairway, could have seen what Tafoya was doing near the left front tire of the car on June 25, 2015, and August 24, 2015.

¶17 After considering evidence and argument presented at the suppression hearing, the trial court issued a written order denying the motion on the ground that Tafoya did not have a reasonable expectation of privacy in what was occurring behind his privacy fence because that area was exposed to the public, and therefore the use of the pole camera did not constitute a search under the Fourth Amendment. The court reasoned as follows:

• because the public could see into Tafoya's backyard from the apartment stairway behind Tafoya's home or from the top of the utility pole, "that ... enabled law enforcement agents to see the alleged illegal activities from being carried out in pursuance of [Tafoya's] alleged drug dealing operations";¹

• "[l]aw enforcement may use technology (including zoom, pan and tilt features of the pole camera) to ‘augment[ ] the sensory faculties bestowed upon them at birth’ without violating the Fourth [A]mendment" (quoting United States v. Knotts , 460 U.S. 276, 282, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) );

• "the length of time" Tafoya's home "was placed under surveillance," and the impracticality of a utility worker perching on the pole during that time, did not convert the surveillance into a search because " ‘it is only the possibility that a member of the public may observe activity from a public vantage point — not the actual practica[bi]lity of law enforcement[ ]’ doing so without technology — that is relevant for Fourth Amendment purposes" (quoting United States v. Houston , 813 F.3d 282, 289 (6th Cir. 2016) ); and

• the long-term surveillance here was not like the "GPS tracking prohibited by the United States Supreme Court in [ United States v. Jones , 565 U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012),]" because "the privacy concerns implicated by a fixed point of surveillance are not so great as those implicated by GPS tracking" (quoting Houston , 813 F.3d at 290 ).²

¶18 At trial, the jury found Tafoya guilty on all counts, and the trial court sentenced him to fifteen years in the custody of the Department of Corrections.

II. Did the Use of the Pole Camera Constitute a "Search"?

¶19 On appeal, Tafoya contends that the police violated the Fourth Amendment by using the pole camera to conduct a continuous, three-month-long surveillance of his backyard without first obtaining a search warrant.³ We agree.

A. Standard of Review

¶20 When reviewing a suppression order, we defer to the district court's factual findings as long as evidence supports them, but we review de novo the court's legal conclusions. People v. McKnight , 2019 CO 36, ¶ 21, 446 P.3d 397.

B. First Things

¶21 The United States Constitution protects people from unreasonable governmental searches and...