Jim Flynn

Jim Flynn, Money & the Law

The Fourth Amendment to the U.S. Constitution, which goes back to 1792, states: “The right of the people to be secure in their persons, houses, papers and effects, against unconscionable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause … ”

Not surprisingly, individuals accused of a crime have often found the Fourth Amendment useful. They argue the evidence being used to charge them has come from a search or seizure in violation of the Fourth Amendment and they ask the court having jurisdiction over their case to suppress the evidence, without which a conviction becomes unlikely. An example of this is People v. Tafoya, a case decided by the Colorado Court of Appeals in November 2019 and again by the Colorado Supreme Court this month.

The facts in the case go like this. The police received a tip that illegal drug activity was taking place at the El Paso County residence of one Rafael Tafoya. The police, without a warrant, thereupon installed a high-tech video camera on a utility pole across the street from Tafoya’s home providing a nice view of his backyard and garage, a place not visible from any location where the police could carry out a more traditional stakeout. The camera operated continuously, recorded what it saw and streamed a live signal back to police headquarters, where officers, without getting cold or wet, could watch activity in Tafoya’s backyard. They could even remotely pan and zoom the camera to enhance their view.

After three months of such surveillance, the police decided they had sufficient probable cause to obtain a search warrant and a search of Tafoya’s property was conducted. The search turned up 20 pounds of methamphetamine and half a kilogram of cocaine. (Note: apparently the metric system applies to cocaine, but not to meth.)

Tafoya was tried and convicted of possession of a controlled substance with intent to distribute and sentenced to 15 years in prison. The trial court judge, over Tafoya’s objection, ruled that the camera-on-pole surveillance of his backyard, and the resulting issuance of a search warrant, did not violate his Fourth Amendment rights. Tafoya appealed that ruling (and his conviction) to the Court of Appeals, which reversed the trial court judge, concluding that Tafoya’s Fourth Amendment rights had indeed been violated and that the evidence obtained under the search warrant, which resulted from the camera-on-pole surveillance, could not be used against him. This time, the prosecution appealed and the Supreme Court affirmed the ruling.

The test applied in Fourth Amendment cases is whether the defendant had a “reasonable expectation of privacy.” In concluding that Tafoya did have such an expectation, the Court of Appeals and the Supreme Court reviewed numerous decisions from courts outside Colorado, some of which have in fact held that long-term video surveillance did not violate Fourth Amendment rights. However, the Colorado courts based their rulings on a U.S. Supreme Court decision, United States v. Jones, which involved the installation of a GPS tracking device on a defendant’s car. In the Jones case, the U.S. Supreme Court held this means of surveillance had indeed violated the defendant’s Fourth Amendment rights.

The Colorado courts did duly note in their decisions that evidence obtained from a helicopter flying over a defendant’s property could be used to convict without violating Fourth Amendment rights. But, they pointed out, “helicopters do not remain in flight for three months at a time.”

Jim Flynn is with the Colorado Springs firm of Flynn & Wright LLC. You can contact him at moneylaw@jtflynn.com.

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