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Police Constant Video Monitor Violates Constitution, Court Says

Dec. 2, 2019, 5:53 PM

Police who video surveilled a suspected drug dealer for three months without a warrant violated his Fourth Amendment rights, a Colorado appeals court has ruled.

Colorado Springs police placed a video camera on top of a pole near defendant Rafael Phillip Tafoya’s house based on a tip that he was stashing drugs. The continuous three-month surveillance amounted to a warrantless search, Judge John Dailey wrote Nov. 27 for the Colorado Court of Appeals, overturning a trial court’s conviction. Judges David Richman and Jaclyn Casey Brown concurred.

Criminal defendants and privacy advocates have been pushing back against law enforcement use of surveillance technologies that they say violates the Constitution. Defendants have scored victories that limit use of GPS and historical cell-tower data without a warrant, and the challenges are unlikely to let up.

Police used the surveillance to get a warrant to search Tafoya’s house and found cocaine and methamphetamine. Tafoya was charged with possession and distribution of controlled substances.

Tafoya argued the surveillance violated the Fourth Amendment prohibition against warrantless searches. A Colorado trial court denied his motion to suppress the evidence, saying he didn’t have a reasonable expectation of privacy. He was convicted and sentenced to 15 years.

Tafoya appealed, citing his Fourth Amendment argument. The Colorado Court of Appeals reversed the conviction and ordered a new trial.

“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,” Dailey wrote.

Robert P. Borquez represented the defendant. The Colorado attorney general’s office represented the state.

The case is People v. Tafoya, 2019 BL 457321, Colo. Ct. App., 17CA1243, 11/27/19.

To contact the reporter on this story: Daniel R. Stoller in Washington at dstoller@bloomberglaw.com

To contact the editors responsible for this story: John Hughes at jhughes@bloomberglaw.com; Keith Perine at kperine@bloomberglaw.com