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Can police spy on you without a warrant? Colorado Supreme Court to consider modern surveillance techniques

The Colorado Supreme Court will take up the scope ofcel modern police surveillance in a case Tuesday that centers on officers in Colorado Springs who used a camera to spy on a man for three months without ever getting permission from a court to do so.

The justices will consider whether police violated the man’s constitutional rights when they put a camera on a utility pole across the street from his house and watched his driveway, front yard and part of his backyard for months, angling the remote-controlled camera, which could pan and zoom, so that it could see over the man’s 6-foot-tall privacy fence.

The officers targeted the home based on a tip from a confidential informant and never sought a warrant to use the camera, so the decision to surveil the man’s house was never cleared by a judge or magistrate.

Courts have given police officers broad leeway to watch suspects without first getting a warrant — say by climbing the steps of a nearby apartment complex and looking into a neighboring yard, or by peering over a fence — but the key issue in this case is whether the technological surveillance should be governed by different rules because it makes months-long, 24/7 surveillance extremely easy, said Sam Kamin, a professor of law at the University of Denver.

“A U.S. Supreme Court case on this point said if the police care enough to follow someone around in an unmarked car for weeks, well OK, they are going to make that value judgment,” he said. “But it’s very different when the police could obtain the same information simply by putting a tracking device on a car or pulling the GPS data from a cellphone provider. They can do that sort of costlessly, which means they could do it always, to anyone, for however long.”

The Colorado Court of Appeals in 2019 ruled that the police surveillance on Rafael Tafoya’s Colorado Springs home was unconstitutional, and on those grounds overturned Tafoya’s resulting drug conviction and 15-year prison sentence.

“The duration of time, the continuity and the nature of the surveillance is what made this an unreasonable search under the Fourth Amendment,” said Robert Borquez, Tafoya’s attorney.

The officers would have been well within their authority to sit across the street and watch the house personally, he said, but that is very different from three months of nonstop video surveillance.

The Colorado Attorney General’s Office appealed the 2019 decision to the Colorado Supreme Court, and in briefs argued that the video surveillance did not violate Tafoya’s constitutional rights. Tafoya had no reasonable expectation of privacy in his backyard, parts of which were exposed to public view, and the camera was not as intrusive as GPS tracking or the use of cellphone data, they said.

“The use of pole cameras, set up in public places that record areas available to public view, is a reasonable investigative technique,” the brief reads.

Borquez said courts across the country are considering how law enforcement should be able to use surveillance cameras as the technology becomes more pervasive, and how much of a check the courts should have on police discretion.

“Surveillance cameras are becoming more and more common,” he said, adding that many people have no issue with being recorded in public places. “Where it becomes a problem is when people are peeking over your backyard fence. If a private individual were to do that, if your neighbor were to do that — they can’t. That’s illegal. So why should the government do what citizens can not do? …And the other side of the equation is, there is a way of doing this if you’ve got probable cause. You can go apply for a warrant.”

The state Supreme Court justices will hear arguments Tuesday and issue a ruling on the case in the coming weeks.

This content was originally published here.

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