People v. Tafoya

Police investigators in this case installed a video camera near the top of a utility pole across the street from a Rafael Phillip Tafoya’s home, without first obtaining a warrant. Police continuously surveilled the property—including the front entrance to Mr. Tafoya’s home, his front and back yards, and a detached garage—for three months and stored the footage for later review. While actively watching the footage, police could adjust the pole camera by panning left and right, tilting up and down, and zooming in and out. Through this constant surveillance, police could glean whether Tafoya had guests, how long they stayed, and any activities they undertook in view of the pole camera.

Mr. Tafoya moved to suppress evidence obtained as a result of the warrantless pole camera surveillance, arguing that such long-term, around-the-clock, and surreptitious observation was a search under the Fourth Amendment. The ACLU supported this position in an amici curiae brief joined by the ACLU of Colorado and Electronic Frontier Foundation. The brief emphasized that prolonged pole camera surveillance of a home—a sacred space in Fourth Amendment jurisprudence—violates objectively reasonable expectations of privacy and requires a warrant. This is especially true in light of recent Supreme Court precedent holding that the Fourth Amendment is implicated when the government deploys novel technologies to cheaply and effortlessly record reams of sensitive and revealing information about people. Pole cameras make possible what police could not formerly achieve: low-cost, unblinking surveillance of a person’s home over long periods, capable of revealing information not only about the totality of the residents’ comings and goings, but also potentially about their familial, political, religious, and sexual associations. All these factors, the ACLU and its partners argued, counsel in favor of applying the warrant requirement to long-term pole camera surveillance.

In a September 2021 opinion, the Colorado Supreme Court sided with Mr. Tafoya. With this ruling, Colorado’s high court joined those of two sister states, Massachusetts and South Dakota, in rejecting the proposition that law enforcement may use a high-tech pole camera to warrantlessly record a person’s home and the area surrounding it for an extended period.

People v. Tafoya is one of a series of cases in which the ACLU has encouraged courts to recognize that long-term, continuous video surveillance of a person’s residence is a Fourth Amendment search.