Four months of warrantless and continuous pole camera surveillance of defendant’s fenced-in back yard was unreasonable and violated his reasonable expectation of privacy under the Fourth Amendment. People v. Tafoya, 2019 COA 176, 2019 Colo. App. LEXIS 1799 (Nov. 27, 2019):
Several lower federal court decisions upholding the warrantless use of pole cameras have distinguished Jones (and would presumably distinguish Carpenter) on the ground that GPS or CSLI tracking of a person’s location is more invasive than video surveillance of a person’s home. See, e.g., Houston, 813 F.3d at 290; Kay, 2018 U.S. Dist. LEXIS 141615, 2018 WL 3995902, at *3. We wholeheartedly disagree. Visual video surveillance spying on what a person is doing in the curtilage of his home behind a privacy fence for months at a time is at least as intrusive as tracking a person’s location — a dot on a map — if not more so. See United States v. Garcia-Gonzalez, No. CR 14-10296-LTS, 2015 U.S. Dist. LEXIS 116312, 2015 WL 5145537, at *8 (D. Mass. Sept. 1, 2015) (unpublished opinion) (“GPS data provides only the ‘where’ and ‘how long’ of a person’s public movements insofar as the person remains close to the monitored vehicle. Long-term around-the-clock monitoring of a residence chronicles and informs the ‘who, what, when, why, where from, and how long’ of a person’s activities and associations unfolding at the threshold adjoining one’s private and public lives.”).
As the concurring opinion in Houston noted, “in most cases, ten weeks of video surveillance of one’s house could reveal considerable knowledge of one’s comings and goings for professional and religious reasons, not to mention possible receptions of others for these and possibly political purposes.” Houston, 813 F.3d at 296 (Rose, J., concurring).
Indeed, as the Supreme Court of South Dakota recently explained,
[t]he information gathered through the use of targeted, long-term video surveillance will necessarily include a mosaic of intimate details of the person’s private life and associations. At a minimum, it could reveal who enters and exits the home, the time of their arrival and departure, the license plates of their cars, the activities of the occupant’s children and friends entering the home, information gleaned from items brought into the home revealing where the occupant shops, how garbage is removed, what service providers are contracted, etc.
Jones, 903 N.W.2d at 110; see also Garcia-Gonzalez, 2015 WL 5145537, at *5 (“The [pole camera] surveillance captured all types of intimate details of life centered on [the defendant’s] home. The agents saw when he came and went. They saw his visitors. They saw with whom he traveled. They identified both his frequent and infrequent visitors. They identified the cars each of them drove. They saw how he dressed every day. They saw what he carried in and out of his home, even when he carried out his trash. They knew when he stayed home and when he did not.”).
In Jones, the South Dakota Supreme Court continued,
[t]he pole camera captured [the defendant’s] activities outside his home twenty-four hours a day, sent the recording to a distant location, and allowed the officer to view it at any time and to replay moments in time. … [T]his type of surveillance does not grow weary, or blink, or have family, friends, or other duties to draw its attention. Much like the tracking of public movements through GPS monitoring, long-term video surveillance of the home will generate “a wealth of detail about [the home occupant’s] familial, political, professional, religious, and sexual associations.” The recordings could be stored indefinitely and used at will by the State to prosecute a criminal case or investigate an occupant or a visitor.
Id. at 112 (quoting Jones, 565 U.S. at 415 (Sotomayor, J., concurring)); see also Moore-Bush, 381 F. Supp. 3d at 149 (“[T]he Government can go back on a whim and determine a home occupant’s routines with to-the-second specificity.”).
We are unpersuaded by the People’s arguments that the area of Tafoya’s driveway behind his privacy fence hypothetically could be seen by a next-door neighbor peering through a small gap in the privacy fence or by the adjacent apartment dweller on a second-story private outdoor stairway (or, for that matter, by someone in a helicopter, or by someone looking through the camera on a drone).
This argument ignores the improbability that a neighbor would peer through a gap in a privacy fence or stand on his or her outdoor stairway for three months at a time. And helicopters and publicly available drones do not remain in flight for three months at a time. Crediting the People’s argument would mean there is no temporal cap on how many months or years the police could have continued the video surveillance of Tafoya’s property. As the United States Court of Appeals for the District of Columbia has explained in the context of a GPS tracking device,
the whole of a person’s movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil. It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person’s hitherto private routine.
United States v. Maynard, 615 F.3d 544, 560, 392 U.S. App. D.C. 291 (D.C. Cir. 2010), aff’d in part sub nom. Jones, 565 U.S. 400, 132 S. Ct. 945, 181 L. Ed. 2d 911; see also Moore-Bush, 381 F. Supp. 3d at 149 (“[O]n a residential street, neighbors notice each other’s peculiar habits. Yet they would not notice all of their neighbors’ habits[.]”); cf. Garcia-Gonzalez, 2015 WL 5145537, at *3 (“Physical surveillance, in theory, could gather the same information as the pole cameras. However, physical surveillance is difficult to perform. … Moreover, here, the officers … could not have successfully conducted this surveillance in person. [The defendant] (and others) likely would have discovered the surveillance.”).
It would be all too easy to overlook these issues based on the significant amount of controlled substances that police ultimately found on Tafoya’s property. But as the Supreme Court explained long ago in United States v. Di Re,
a search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from its success. … [T]he forefathers, after consulting the lessons of history, designed our Constitution to place obstacles in the way of a too permeating police surveillance, which they seemed to think was a greater danger to a free people than the escape of some criminals from punishment.
332 U.S. 581, 595, 68 S. Ct. 222, 92 L. Ed. 210 (1948) (footnote omitted); see also Riley, 488 U.S. at 463-66 (Brennan, J., dissenting) (“[W]e dismiss this as a ‘drug case’ only at the peril of our own liberties. … The Fourth Amendment demands that we temper our efforts to apprehend criminals with a concern for the impact on our fundamental liberties of the methods we use.”).
And as the Supreme Court explained in Johnson v. United States,
[c]rime, even in the privacy of one’s own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.
333 U.S. 10, 14, 68 S. Ct. 367, 92 L. Ed. 436 (1948).
For these reasons, we conclude that the three-month-long surveillance of the curtilage of Tafoya’s home through the pole camera constituted a search under the Fourth Amendment to the United States Constitution.
Because the fruits of the police surveillance were used to obtain — and were critical to the acquisition of — the warrant to search Tafoya’s property, the trial court should (in the absence of an applicable exception to the exclusionary rule) have suppressed the evidence recovered from the search of the property. And because the evidence recovered from the property — the drugs — was critical to the prosecution’s case, its admission into evidence cannot be considered harmless beyond a reasonable doubt. See McKnight, ¶ 60 (determining that an unconstitutional search was not harmless beyond a reasonable doubt where the search uncovered the drug evidence used to convict the defendant). Consequently, Tafoya’s convictions must be reversed and the matter remanded for a new trial.