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Colorado's Supreme Court justices expressed discomfort with allowing police to continue long-term surveillance of Colorado Springs home with a camera mounted to a utility pole.

Tuesday, all seven members of the Court pushed back at various points against the state's position that warrantless surveillance by Colorado Springs police does not violate the Fourth Amendment's prohibition on unreasonable searches.

"There would be no problem from your perspective in the police deploying video cameras on every utility pole in every residential neighborhood in the state. Is that right?" asked Justice William W. Hood III.

Senior Assistant Attorney General Rebecca Adams replied in the affirmative. "I don’t think from a constitutional standpoint that would be a problem," she said.

In a pair of cases, Colorado Springs police mounted a camera onto a utility pole outside a suspected "stash house," where alleged drug deals took place. The camera could zoom, pan and tilt, and peered over the property's 6-foot privacy fence. It recorded continuously between May and August 2015, and police used the footage to observe and make arrests for drug transactions.

The government's  asserted the defendants, Rafael Phillip Tafoya and Gabriel Sanchez, had no reasonable expectation of privacy by meeting on Tafoya's property. From the street, a person could see Tafoya's driveway and front yard. In addition, someone who had climbed the utility pole or been inside a neighboring two-story apartment complex could view the backyard. Using the camera. police saw the two men exchange drugs, according to court records.

"Because Tafoya’s backyard was exposed to the public, Sanchez had no expectation of privacy that society is prepared to recognize as reasonable," Adams wrote to the Court in her brief.

In unusually personal terms, Justice Melissa Hart engaged with Adams over how far the state believed its right to spy on persons occupying their own property extended.

"The utility pole that’s in my backyard — if someone were to put a pole cam up there, they’d be able to see into my backyard completely, despite my having just built a new fence," Hart explained. "They’d also be able to see into my 18-year-old daughter’s bedroom windows if she didn’t keep her shades pulled down all the time."

She asked Adams whether the government would consider that circumstance problematic. Adams conceded it was a valid concern.

Police first installed the camera after receiving a tip about drug activity in the 700 block of Bennett Avenue, northwest of Platte Avenue and Circle Drive. Police claim the video footage twice caught Sanchez driving onto Tafoya's property and the two men moving bags between the vehicle and the garage. Later, three other men arrived in a separate vehicle. They removed the spare tire and rolled it into the backyard, out of view, and subsequently reattached it.

In both instances, police pulled over the second vehicle. The first time, officers say they found $100,000 in cash in the spare tire. The second time, police claim they confiscated three bags of methamphetamine and cocaine.

A later search, this time with a warrant, revealed additional drugs and cash in a secret compartment of Sanchez's vehicle, police said.

Juries convicted both men of drug charges. Tafoya received 15 years in prison and Sanchez received 20.

Tafoya and Sanchez argued the surveillance violated the Fourth Amendment, but a judge denied their claims. However, in November 2019, a three-member panel of the Colorado Court of Appeals ruled the use of the camera  an unconstitutional search.

Prosecutors appealed that ruling.

At the state's high court, defense attorneys likened the practice of long-term home surveillance to a "big brother" activity.

"The pole cameras here allowed investigators to overcome several practical challenges to pervasive human surveillance, be that of the nosey neighbor or the common policeman," the defense argued in court papers. "All of the footage collected by the cameras was stored digitally, in a searchable format, such that investigators later could comb through it at will. The pole cameras thereby gave investigators the ability to pick out and identify individual, sensitive moments that would otherwise be lost to the natural passage of time."

The ACLU of Colorado, which supported Tafoya and Sanchez, argued the pole camera would lead to pervasive warrantless surveillance.

"Without any regulation under the Fourth Amendment or the state constitution, officers could unceasingly watch the comings and goings of the local political gadfly, track who leaves home with a protest sign on the day of a Black Lives Matter demonstration, or observe in detail every socially distanced front-yard interaction between neighbors or friends," the civil liberties group wrote to the court.

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