v. Tafoya

     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                          November 27, 2019

                               

No. 17CA1243, People v. Tafoya — Constitutional Law —
Fourth Amendment — Searches and Seizures — Warrantless
Search

     In a matter of first impression in Colorado, the division

concludes that police use of a video camera installed at the top of a

utility pole to conduct continuous video surveillance for more than

three months of the defendant’s fenced-in backyard constituted a

warrantless “search” in violation of the Fourth Amendment to the

United States Constitution.
COLORADO COURT OF APPEALS                                         

Court of Appeals No. 17CA1243
El Paso County District Court No. 15CR4102
Honorable Barbara L. Hughes, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Rafael Phillip Tafoya,

Defendant-Appellant.


                         JUDGMENT REVERSED AND CASE
                          REMANDED WITH DIRECTIONS

                                     Division II
                             Opinion by JUDGE DAILEY
                          Richman and Brown, JJ., concur

                          Announced November 27, 2019


Philip J. Weiser, Attorney General, Trina K. Taylor, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Robert P. Borquez, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant
¶1    Police, acting without a search warrant, installed a video

 camera near the top of a utility pole (the pole camera) to surveil the

 home of defendant, Rafael Phillip Tafoya. For more than three

 months, the elevated camera provided police with continuous,

 recorded video surveillance of the area surrounding Tafoya’s home,

 including an area behind his privacy fence. Based on what police

 observed over that lengthy period, they obtained a search warrant,

 physically searched Tafoya’s property, and found a large amount of

 controlled substances.

¶2    The issue in this case is whether the continuous, three-

 month-long use of the pole camera constituted a search under the

 Fourth Amendment to the United States Constitution. We conclude

 that it did.

¶3    Because the trial court concluded otherwise, we reverse

 Tafoya’s two convictions for possession with intent to distribute a

 controlled substance and his two conspiracy convictions and

 remand for a new trial.

                           I.    Background

¶4    A confidential informant told police about a possible drug

 “stash house” in Colorado Springs. Based on specific information


                                   1
 provided by the informant, police identified Tafoya’s home as the

 possible stash house.

¶5    Without applying for or obtaining a search warrant, police

 installed the pole camera near the top of a utility pole across the

 street from Tafoya’s property. Because the utility pole was across

 the street, police did not have to enter Tafoya’s property to install it.

¶6    The pole camera continuously recorded video surveillance

 footage of Tafoya’s property for more than three months from May

 16, 2015, to August 24, 2015. There is no indication that Tafoya

 knew his property was under surveillance. Detectives could watch

 the video surveillance footage at the police station. They reviewed

 already-recorded footage on a regular basis. They also sometimes

 watched live-streaming footage as things were occurring on Tafoya’s

 property.

¶7    The pole camera had some useful technological capabilities.

 From the police station, the detectives could pan the camera left

 and right and up and down. The camera also had a zoom feature.

 With the live-streaming video surveillance, the zoom had buffering

 so, as explained at the suppression hearing, a detective could “see




                                     2
 very close to things, faces, to be able to identify objects, things of

 that nature.”

¶8    At Tafoya’s property, a long driveway runs from the street,

 along the side of Tafoya’s home, to a detached garage in the

 backyard. A chain-link fence at the front of the property separates

 it from the public sidewalk. Farther into the property, as the

 driveway begins running along the side of the home, is a wooden

 privacy fence, approximately six feet high and including a gate

 across the driveway. Behind the privacy fence is the remainder of

 the driveway, which is next to the residence and in front of the

 detached garage. The pole camera provided an elevated view of

 Tafoya’s property, including the area of the driveway behind his

 privacy fence, which could not be seen from the public sidewalk or

 the street.

¶9    On June 25, 2015 — when the pole camera had already been

 recording video surveillance footage for more than a month — police

 received a tip from an informant that a drug shipment would be

 delivered to Tafoya’s house later that day. At the police station, a

 detective started watching live-streaming footage from the pole

 camera.


                                     3
¶ 10   The detective saw a man named Gabriel Sanchez drive a car

  from the street up Tafoya’s driveway. Tafoya opened the gate on the

  privacy fence. Sanchez drove the car past the privacy fence, and

  Tafoya closed the gate. From the elevated view of the pole camera,

  the parked car was partially visible over the privacy fence. With the

  camera zoomed in, the detective observed Tafoya bend down near

  the left front tire of the car. But because that view was blocked by

  the privacy fence, precisely what Tafoya was doing at the left front

  tire could not be seen. After many minutes of Tafoya bending down

  near the tire, the detective saw Tafoya and Sanchez carry two white

  plastic bags containing unknown items into the detached garage.

¶ 11   A pickup truck then drove from the street up Tafoya’s

  driveway. Men got out of the truck and moved a spare tire from the

  truck into Tafoya’s garage. Later, they moved the spare tire from

  the garage back to the truck and drove away. Police later stopped

  the truck and found $98,000 in the spare tire.

¶ 12   The police continued recording video surveillance footage of

  Tafoya’s property for two more months. Then, on August 23, 2015,

  police received a tip from an informant that another drug shipment

  would arrive at Tafoya’s property the next day. On August 24, a


                                    4
  detective began viewing live-streaming footage of Tafoya’s property,

  and ultimately observed similar activity. Sanchez drove the same

  car up Tafoya’s driveway, Tafoya opened the gate, Sanchez drove

  the car past the privacy fence, and Tafoya closed the gate. Still,

  from the elevated view of the pole camera, the detective could see

  Tafoya again bend down near the left front tire of the car and then

  carry white plastic bags containing unknown items into the garage.

¶ 13   Police then obtained a search warrant and conducted a

  physical search of Tafoya’s property. Inside the garage, they found

  two white garbage bags containing a total of approximately twenty

  pounds of methamphetamine and a half kilogram of cocaine.

¶ 14   The prosecution charged Tafoya with two counts of possession

  with intent to distribute controlled substances (methamphetamine

  and cocaine), and two counts of conspiracy to commit these

  offenses, and alleged that the crimes occurred during the date

  range of June 25, 2015, through August 24, 2015.

¶ 15   Tafoya filed a motion to suppress, arguing that the use of the

  pole camera constituted a warrantless search of his property in

  violation of the Fourth Amendment.




                                    5
¶ 16   In the People’s response, and at the suppression hearing, one

  of the People’s arguments was that a person — hypothetically —

  could view the area of Tafoya’s driveway behind the privacy fence

  from different vantage points. The People introduced photographs

  at the suppression hearing from those vantage points. For example,

  the privacy fence had very thin gaps between each of the wooden

  boards, so Tafoya’s next-door neighbor hypothetically could have

  stood next to the privacy fence, peered through a thin gap, and seen

  what was occurring behind Tafoya’s privacy fence on June 25,

  2015, and August 24, 2015. Also, a two-story apartment building

  with an exterior stairway leading up to one of the second-story

  apartments abuts Tafoya’s backyard. Again, hypothetically, the

  resident of that apartment, while standing at a particular spot on

  the stairway, could have seen what Tafoya was doing near the left

  front tire of the car on June 25, 2015, and August 24, 2015.

¶ 17   After considering evidence and argument presented at the

  suppression hearing, the trial court issued a written order denying

  the motion on the ground that Tafoya did not have a reasonable

  expectation of privacy in what was occurring behind his privacy

  fence because that area was exposed to the public, and therefore


                                   6
the use of the pole camera did not constitute a search under the

Fourth Amendment. The court reasoned as follows:

     •    because the public could see into Tafoya’s backyard from

          the apartment stairway behind Tafoya’s home or from the

          top of the utility pole, “that . . . enabled law enforcement

          agents to see the alleged illegal activities from being

          carried out in pursuance of [Tafoya’s] alleged drug

          dealing operations”;1

     •    “[l]aw enforcement may use technology (including zoom,

          pan and tilt features of the pole camera) to ‘augment[] the

          sensory faculties bestowed upon them at birth’ without

          violating the Fourth [A]mendment” (quoting United States

          v. Knotts, 

 (1983));

     •    “the length of time” Tafoya’s home “was placed under

          surveillance,” and the impracticality of a utility worker

          perching on the pole during that time, did not convert the

          surveillance into a search because “‘it is only the



1 The court noted that “[t]he fact that the pole cam[era] saw the
activities from a different vantage point than the one that could be
viewed by the public is no bar to the admissibility of the evidence.”

                                  7
            possibility that a member of the public may observe

            activity from a public vantage point — not the actual

            practica[bi]lity of law enforcement[]’ doing so without

            technology — that is relevant for Fourth Amendment

            purposes” (quoting United States v. Houston, 

 (6th Cir. 2016)); and

       •    the long-term surveillance here was not like the “GPS

            tracking prohibited by the United States Supreme Court

            in [United States v. Jones, 

 (2012),]” because

            “the privacy concerns implicated by a fixed point of

            surveillance are not so great as those implicated by GPS

            tracking” (quoting Houston, 

).2

¶ 18   At trial, the jury found Tafoya guilty on all counts, and the

  trial court sentenced him to fifteen years in the custody of the

  Department of Corrections.




  2 “GPS monitoring generates a precise, comprehensive record of a
  person’s public movements that reflects a wealth of detail about her
  familial, political, professional, religious, and sexual associations.”
  United States v. Jones, 

 (2012) (Sotomayor, J.,
  concurring).

                                     8
       II.   Did the Use of the Pole Camera Constitute a “Search”?

¶ 19   On appeal, Tafoya contends that the police violated the Fourth

  Amendment by using the pole camera to conduct a continuous,

  three-month-long surveillance of his backyard without first

  obtaining a search warrant.3 We agree.

                        A.   Standard of Review

¶ 20   When reviewing a suppression order, we defer to the district

  court’s factual findings as long as evidence supports them, but we

  review de novo the court’s legal conclusions. People v. McKnight,

  

.



  3 He also asserts that the police violated the state constitutional
  search and seizure provision, Colo. Const. art. II, § 7. Although
  Tafoya mentioned the state constitutional provision in his
  suppression motion, in the trial court he did not argue that it
  afforded him greater protections than the Fourth Amendment. Nor
  did the trial court base its ruling on state constitutional grounds.
  Under these circumstances, we limit our analysis to the federal
  constitutional issue. See People v. Rodriguez, 

  (Colo. App. 2008) (“Where, as here, a defendant does not make a
  specific objection, with a separate argument, under the state
  constitution, we must presume the defendant’s objections are based
  on federal, not state, constitutional grounds, and limit our review
  accordingly.”) (emphasis added), aff’d, 

 (Colo. 2010);
  see also People v. Holmes, 

, 170 n.3 (Colo. 1999) (“In
  the absence of a statement indicating that the decision rests on
  state grounds, we will presume that the court relied on federal law.”
  (quoting People v. Hauseman, 

, 77 n.4 (Colo. 1995))).

                                    9
                            B.    First Things

¶ 21   The United States Constitution protects people from

  unreasonable governmental searches and seizures. See U.S. Const.

  amend. IV. The “basic purpose” of the Fourth Amendment “is to

  safeguard the privacy and security of individuals against arbitrary

  invasions by governmental officials.” Carpenter v. United States,

  

, ___, 

 (2018) (quoting Camara v.

  Mun. Court, 

 (1967)).

¶ 22   “Warrantless searches are presumptively unreasonable[.]”

  McKnight, ¶ 22 (quoting United States v. Karo, 

  (1984)). A warrant is only required, however, for police action that

  constitutes a “search” or “seizure” under the Fourth Amendment.

  Henderson v. People, 

 (Colo. 1994).

¶ 23   “A search occurs when the government intrudes on an area

  where a person has a ‘constitutionally protected reasonable

  expectation of privacy.’” 

 (quoting Katz v. United States, 

 (1967) (Harlan, J., concurring)). The cases recognize two

  aspects to the expectation of privacy — one subjective and one

  objective. Said another way, “[w]hen an individual ‘seeks to

  preserve something as private,’ and his expectation of privacy is


                                    10
  ‘one that society is prepared to recognize as reasonable,’ . . . official

  intrusion into that private sphere generally qualifies as a search

  and requires a warrant supported by probable cause.” Carpenter,

  585 U.S. at ___, 

 (quoting Smith v. Maryland, 

 (1979)).

¶ 24   “[W]hen it comes to the Fourth Amendment, the home is first

  among equals.” Florida v. Jardines, 

 (2013); see also

  McKnight, ¶ 118 (Samour, J., dissenting) (“[T]he home is the most

  sacred of Fourth Amendment spaces . . . .”). The “curtilage” of the

  home — the area “immediately surrounding and associated with the

  home” — is also “part of the home itself for Fourth Amendment

  purposes.” Jardines, 

 (quoting Oliver v. United States,

  

 (1984)); see also People v. Tomaske, 

 (same). In the trial court, the People conceded, and the court

  found, that the area of Tafoya’s driveway behind his privacy fence

  fell within the “curtilage” of his home.

¶ 25   But a person can have no reasonable expectation of privacy in

  what he or she knowingly exposes to the public. Katz, 

. So “the fact that a search occurs within the curtilage [of a

  home] is not dispositive if the area’s public accessibility dispels any


                                     11
  reasonable expectation of privacy.” People v. Shorty, 

 (Colo. 1987).

¶ 26   For example, if a police officer standing on a public sidewalk

  can see the curtilage of a home, the officer has not conducted a

  “search” under the Fourth Amendment. As the Supreme Court

  explained in California v. Ciraolo,

             [t]hat the area is within the curtilage does not
             itself bar all police observation. The Fourth
             Amendment protection of the home has never
             been extended to require law enforcement
             officers to shield their eyes when passing by a
             home on public thoroughfares. Nor does the
             mere fact that an individual has taken
             measures to restrict some views of his
             activities preclude an officer’s observations
             from a public vantage point where he has a
             right to be and which renders the activities
             clearly visible.

  

 (1986).

¶ 27   Precedent makes clear that a police officer need not remain at

  ground level to conduct visual observations of the curtilage of a

  home. In Ciraolo, the Supreme Court, in a 5-4 decision, held that it

  was not a search where a police officer in an airplane at an altitude

  of 1,000 feet visually observed marijuana plants in a residential

  backyard enclosed by a privacy fence. See 

. And in



                                        12
  Florida v. Riley, a plurality of the Supreme Court held that it was

  not a search where a police officer in a helicopter at an altitude of

  400 feet observed marijuana plants in a nearly enclosed greenhouse

  in a residential backyard. See 

 (1989); see

  also Henderson, 

 (same).

¶ 28   In Ciraolo, the Court explained that a homeowner cannot

  reasonably expect that activities in his or her enclosed backyard

  “will not be observed by a passing aircraft — or by a power company

  repair mechanic on a pole overlooking the yard.” 

-

  15. Thus, it would not be a “search” for a police officer to climb a

  utility pole and look over a privacy fence into a homeowner’s

  backyard.

¶ 29   Nor, in our view, would it be a “search” for a police officer

  situated on a utility pole to look into a backyard with the aid of a

  camera with a zoom lens.

¶ 30   In support of this conclusion, we note that divisions of this

  court have held that a police officer’s use of standard binoculars to

  look at a homeowner’s property does not constitute a search. See

  People v. Harris, 

, ¶ 34 n.3 (concluding that it was

  not a search for officers to use binoculars to look at the defendant’s


                                    13
  pastures from a neighboring property); People v. Oynes, 

 (Colo. App. 1996) (concluding that it was not a search

  for a police officer to look into a window of a house with binoculars

  where there was no record evidence that the binoculars were

  “extraordinarily powerful”).

¶ 31   Our review of the surveillance video suggests that the

  magnification power of the zoom on the pole camera was similar to

  that of standard binoculars that any civilian can purchase. Thus, it

  would not be a search for a police officer to climb a utility pole and

  look over a privacy fence into a homeowner’s backyard with

  equipment similar to the pole camera. See Sundheim v. Bd. of Cty.

  Comm’rs, 

 (Colo. App. 1995) (concluding that

  “the use of a camera with a telescopic lens” did not transform a

  lawful observation into an unreasonable search), aff’d, 

 (Colo. 1996).

¶ 32   But of course, this case did not involve a police officer

  physically climbing to the top of a utility pole and looking over

  Tafoya’s privacy fence with a standard pair of binoculars or with a

  telescopic camera. It involved the installation of a video camera

  that allowed police to conduct continuous visual surveillance —


                                    14
  from the police station — of Tafoya’s property — including the area

  behind his privacy fence — for more than three months.

        C.  Does the Continuity and Extended Duration of Video
        Surveillance Make a Difference to the “Search” Analysis?

¶ 33   Our research indicates that many of the courts to address the

  issue have concluded that continuous, long-term video surveillance

  of a private home via a non-trespassory pole camera does not

  constitute a “search” under the Fourth Amendment. These courts’

  primary, underlying rationale is that a pole camera only captures

  events that a police officer or utility worker situated on the pole

  could see. Significantly, the nature, continuity, and extended

  duration of police observation from a pole camera are (explicitly or

  implicitly) considered irrelevant to their “search” analyses. See

  Houston, 

 (holding that ten-week-long pole

  camera surveillance was not a Fourth Amendment search, and

  noting that the police had the same view as “passersby on public

  roads”); United States v. Bucci, 

 (1st Cir. 2009)

  (same holding regarding eight months of pole camera surveillance of

  an unfenced property); United States v. Jackson, 

 (10th Cir.) (same general holding), cert. granted, judgment



                                    15
vacated, and case remanded on other grounds, 

(2000); United States v. Kay, No. 17-CR-16, 

, at

*1-3 (E.D. Wis. Aug. 21, 2018) (unpublished opinion) (same holding

regarding three months of pole camera surveillance); United States

v. Tuggle, No. 16-cr-20070-JES-JEH, 

, at *3 (C.D.

Ill. July 31, 2018) (unpublished opinion) (same holding regarding

eighteen months of pole camera surveillance of an unfenced

property); United States v. Mazzara, No. 16 Cr. 576, 

, at *8-12 (S.D.N.Y. Oct. 27, 2017) (unpublished opinion)

(same holding regarding twenty-one months of pole camera

surveillance); United States v. Pratt, No. 16-cr-20677-06, 

, at *4-5 (E.D. Mich. June 2, 2017) (unpublished opinion)

(same holding regarding fourteen months of pole camera

surveillance); United States v. Brooks, 

(D. Ariz. 2012) (same holding regarding five months of pole camera

surveillance); State v. Torres, No. 2 CA-CR 2010-0283, 

, at *1-4 (Ariz. Ct. App. Oct. 12, 2011) (unpublished

opinion) (same holding regarding three months of pole camera

surveillance); State v. Rigel, 

 (Ohio Ct. App.




                                 16
  2017) (same holding regarding 138 days of pole camera

  surveillance).

¶ 34   We are not, however, bound by these decisions. See People v.

  Dunlap, 

 (Colo. 1999) (Colorado courts are “not

  bound by a federal circuit court’s interpretation of federal

  constitutional requirements.”); Wal-Mart Stores, Inc. v. United Food

  & Commercial Workers Int’l Union, 

, ¶ 17 (The Colorado

  Court of Appeals is “not bound by the decisions of the courts of

  other states.”).

¶ 35   And unlike the cases noted above, we (like some other courts)

  consider the nature, the continuity, and particularly the duration of

  pole camera surveillance to be extremely relevant to the issue of

  whether police have engaged in a “search.” See United States v.

  Cuevas-Sanchez, 

 (5th Cir. 1987) (holding that

  two-month-long pole camera surveillance of fenced-in backyard

  constituted a search); United States v. Moore-Bush, 

 (D. Mass. 2019) (same holding regarding eight months

  of pole camera surveillance); United States v. Vargas, No. CR-13-

  6025, 

-EFS, at *13-37 (E.D. Wash.

  Dec. 15, 2014) (same holding regarding one month of pole camera


                                    17
  surveillance of mostly enclosed front yard); Shafer v. City of

  Boulder, 

 (D. Nev. 2012) (same holding

  regarding two months of pole camera surveillance of fenced

  backyard); State v. Jones, 

 (S.D. 2017)

  (same holding regarding two months of pole camera surveillance).

¶ 36   “[U]nfettered use of surveillance technology could

  fundamentally alter the relationship between our government and

  its citizens[.]” Jones, 

 (citation omitted). “Hidden

  video surveillance is one of the most intrusive investigative

  mechanisms available to law enforcement.” United States v. Nerber,

  

 (9th Cir. 2000). “[A] camera monitoring all of a

  person’s backyard activities . . . provokes an immediate negative

  visceral reaction: indiscriminate video surveillance raises the

  spectre of the Orwellian state.” Cuevas-Sanchez, 

.

  The question we consider is whether this sort of continuous video

  surveillance is “‘inconsistent with the aims of a free and open

  society.’” People v. Oates, 

 (Colo. 1985) (quoting

  Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 

, 403 (1974)).




                                    18
¶ 37   Although Jones, 

, involved a different type of

  surveillance, it is instructive. There, police attached a GPS tracking

  device to the defendant’s car and tracked his location for over four

  weeks. See id. at 402-03. The majority opinion held that the use of

  the GPS tracker constituted a search because of the physical

  trespass of attaching the tracker to the car. See id. at 402-13.

  However, in a concurring opinion, Justice Alito, joined by three

  other currently sitting justices, warned about the use of technology

  to monitor civilians’ activities for long periods of time. See id. at

  418-31. He wrote:

             In the pre-computer age, the greatest
             protections of privacy were neither
             constitutional nor statutory, but practical.
             Traditional surveillance for any extended
             period of time was difficult and costly and
             therefore rarely undertaken. . . . Devices like
             the one used in the present case, however,
             make long-term monitoring relatively easy and
             cheap. . . . [T]he use of longer term GPS
             monitoring in investigations of most offenses
             impinges on expectations of privacy.

  Id. at 429-30 (Alito, J., concurring in the judgment).

¶ 38   In a separate concurring opinion, Justice Sotomayor “agree[d]

  with Justice Alito that, at the very least, ‘longer term GPS

  monitoring in investigations of most offenses impinges on


                                     19
  expectations of privacy.’” Id. at 415 (Sotomayor, J., concurring)

  (quoting id. at 430 (Alito, J., concurring)); see also id. at 416

  (“Awareness that the Government may be watching chills

  associational and expressive freedoms.”).

¶ 39   In Carpenter, 

, 

, the United States

  Supreme Court incorporated the Jones concurrences in the course

  of deciding that the government’s acquisition of an individual’s cell-

  site location information (CSLI) from wireless carriers was a

  “search” under the Fourth Amendment. The Court, quoting with

  approval Justice Alito’s and Justice Sotomayor’s Jones

  concurrences, said that “‘longer term GPS monitoring in

  investigations of most offenses impinges on expectations of privacy’

  — regardless whether those movements were disclosed to the public

  at large.” 

 at ___, 

 (quoting Jones, 

 (Sotomayor, J., concurring); 430 (Alito, J., concurring in the

  judgment)). It continued that “[p]rior to the digital age, law

  enforcement might have pursued a suspect for a brief stretch, but

  doing so ‘for any extended period of time was difficult and costly

  and therefore rarely undertaken.’” 

 at ___, 

  (quoting Jones, 

 (Alito, J., concurring in the


                                     20
  judgment)). Therefore, the Carpenter Court stated that under

  Jones, a search occurs when the government subjects a vehicle to

  “pervasive tracking” on public roads. 

 at ___, 

  (citing Jones, 

 (Sotomayor, J., concurring), 430

  (Alito, J, concurring in the judgment)).

¶ 40   The (or, at least, a) lesson from the Jones concurrences and

  Carpenter is that not all governmental conduct escapes being a

  “search” simply because a citizen’s actions were otherwise

  observable by the public at large.

¶ 41   We acknowledge that, by its own terms, the Court’s decision in

  Carpenter “is a narrow one” and does not “call into question

  conventional surveillance techniques and tools, such as security

  cameras.” 

 at ___, 

; see also Mazzara, 

, at *11 (“The reality is that society has come to accept

  a significant level of video surveillance. Security cameras are

  routinely installed in public parks, restaurants, stores, government

  buildings, schools, banks, gas stations, elevators, and all manner of

  public spaces. Additionally, security cameras are increasingly being

  installed on public streets, highways, and utility poles.”).




                                    21
¶ 42   A pole camera, however,

            is not a security camera by any stretch of the
            imagination. . . . Law enforcement officers did
            not install the [p]ole [c]amera here to ‘guard
            against . . . crime,’ but to investigate suspects.
            Indeed, the prototypical security camera exists
            to monitor a heavily trafficked area or
            commercial establishment. Security camera
            operators often install their cameras in plain
            view or with warning signs to deter
            wrongdoers. The Government hid the [p]ole
            [c]amera out of sight of its targets and does not
            suggest that it did so to prevent criminal
            activity.

  Moore-Bush, 

 (citation omitted).

¶ 43   Several lower federal court decisions upholding the

  warrantless use of pole cameras have distinguished Jones (and

  would presumably distinguish Carpenter) on the ground that GPS

  or CSLI tracking of a person’s location is more invasive than video

  surveillance of a person’s home. See, e.g., Houston, 

; Kay, 

, at *3. We wholeheartedly disagree.

  Visual video surveillance spying on what a person is doing in the

  curtilage of his home behind a privacy fence for months at a time is

  at least as intrusive as tracking a person’s location — a dot on a

  map — if not more so. See United States v. Garcia-Gonzalez, No. CR

  14-10296-LTS, 

, at *8 (D. Mass. Sept. 1, 2015)


                                   22
  (unpublished opinion) (“GPS data provides only the ‘where’ and ‘how

  long’ of a person’s public movements insofar as the person remains

  close to the monitored vehicle. Long-term around-the-clock

  monitoring of a residence chronicles and informs the ‘who, what,

  when, why, where from, and how long’ of a person’s activities and

  associations unfolding at the threshold adjoining one’s private and

  public lives.”).

¶ 44   As the concurring opinion in Houston noted, “in most cases,

  ten weeks of video surveillance of one’s house could reveal

  considerable knowledge of one’s comings and goings for

  professional and religious reasons, not to mention possible

  receptions of others for these and possibly political purposes.”

  Houston, 

 (Rose, J., concurring).

¶ 45   Indeed, as the Supreme Court of South Dakota recently

  explained,

               [t]he information gathered through the use of
               targeted, long-term video surveillance will
               necessarily include a mosaic of intimate details
               of the person’s private life and associations. At
               a minimum, it could reveal who enters and
               exits the home, the time of their arrival and
               departure, the license plates of their cars, the
               activities of the occupant’s children and
               friends entering the home, information gleaned


                                      23
            from items brought into the home revealing
            where the occupant shops, how garbage is
            removed, what service providers are
            contracted, etc.

  Jones, 

; see also Garcia-Gonzalez, 

, at *5 (“The [pole camera] surveillance captured all types of

  intimate details of life centered on [the defendant’s] home. The

  agents saw when he came and went. They saw his visitors. They

  saw with whom he traveled. They identified both his frequent and

  infrequent visitors. They identified the cars each of them drove.

  They saw how he dressed every day. They saw what he carried in

  and out of his home, even when he carried out his trash. They

  knew when he stayed home and when he did not.”).

¶ 46   In Jones, the South Dakota Supreme Court continued,

            [t]he pole camera captured [the defendant’s]
            activities outside his home twenty-four hours a
            day, sent the recording to a distant location,
            and allowed the officer to view it at any time
            and to replay moments in time. . . . [T]his type
            of surveillance does not grow weary, or blink,
            or have family, friends, or other duties to draw
            its attention. Much like the tracking of public
            movements through GPS monitoring,
            long-term video surveillance of the home will
            generate “a wealth of detail about [the home
            occupant’s] familial, political, professional,
            religious, and sexual associations.” The
            recordings could be stored indefinitely and


                                   24
            used at will by the State to prosecute a
            criminal case or investigate an occupant or a
            visitor.

  

 at 112 (quoting Jones, 

 (Sotomayor, J.,

  concurring)); see also Moore-Bush, 

 (“[T]he

  Government can go back on a whim and determine a home

  occupant’s routines with to-the-second specificity.”).

¶ 47   We are unpersuaded by the People’s arguments that the area

  of Tafoya’s driveway behind his privacy fence hypothetically could

  be seen by a next-door neighbor peering through a small gap in the

  privacy fence or by the adjacent apartment dweller on a second-

  story private outdoor stairway (or, for that matter, by someone in a

  helicopter, or by someone looking through the camera on a drone).

¶ 48   This argument ignores the improbability that a neighbor would

  peer through a gap in a privacy fence or stand on his or her outdoor

  stairway for three months at a time. And helicopters and publicly

  available drones do not remain in flight for three months at a time.

  Crediting the People’s argument would mean there is no temporal

  cap on how many months or years the police could have continued

  the video surveillance of Tafoya’s property. As the United States




                                    25
Court of Appeals for the District of Columbia has explained in the

context of a GPS tracking device,

           the whole of a person’s movements over the
           course of a month is not actually exposed to
           the public because the likelihood a stranger
           would observe all those movements is not just
           remote, it is essentially nil. It is one thing for a
           passerby to observe or even to follow someone
           during a single journey as he goes to the
           market or returns home from work. It is
           another thing entirely for that stranger to pick
           up the scent again the next day and the day
           after that, week in and week out, dogging his
           prey until he has identified all the places,
           people, amusements, and chores that make up
           that person’s hitherto private routine.

United States v. Maynard, 

 (D.C. Cir. 2010), aff’d

in part sub nom. Jones, 

; see also Moore-Bush, 

 (“[O]n a residential street, neighbors notice each

other’s peculiar habits. Yet they would not notice all of their

neighbors’ habits[.]”); cf. Garcia-Gonzalez, 

, at *3

(“Physical surveillance, in theory, could gather the same

information as the pole cameras. However, physical surveillance is

difficult to perform. . . . Moreover, here, the officers . . . could not

have successfully conducted this surveillance in person. [The




                                    26
  defendant] (and others) likely would have discovered the

  surveillance.”).

¶ 49   It would be all too easy to overlook these issues based on the

  significant amount of controlled substances that police ultimately

  found on Tafoya’s property. But as the Supreme Court explained

  long ago in United States v. Di Re,

             a search is not to be made legal by what it
             turns up. In law it is good or bad when it
             starts and does not change character from its
             success. . . . [T]he forefathers, after
             consulting the lessons of history, designed our
             Constitution to place obstacles in the way of a
             too permeating police surveillance, which they
             seemed to think was a greater danger to a free
             people than the escape of some criminals from
             punishment.

  

 (1948) (footnote omitted); see also Riley, 

 (Brennan, J., dissenting) (“[W]e dismiss this as a ‘drug

  case’ only at the peril of our own liberties. . . . The Fourth

  Amendment demands that we temper our efforts to apprehend

  criminals with a concern for the impact on our fundamental

  liberties of the methods we use.”).

¶ 50   And as the Supreme Court explained in Johnson v. United

  States,



                                     27
            [c]rime, even in the privacy of one’s own
            quarters, is, of course, of grave concern to
            society, and the law allows such crime to be
            reached on proper showing. The right of
            officers to thrust themselves into a home is
            also a grave concern, not only to the individual
            but to a society which chooses to dwell in
            reasonable security and freedom from
            surveillance. When the right of privacy must
            reasonably yield to the right of search is, as a
            rule, to be decided by a judicial officer, not by
            a policeman or Government enforcement
            agent.

  

 (1948).

¶ 51   For these reasons, we conclude that the three-month-long

  surveillance of the curtilage of Tafoya’s home through the pole

  camera constituted a search under the Fourth Amendment to the

  United States Constitution.4




  4 We need not identify with precision the point at which the
  surveillance became a search, for the line was surely crossed long
  before the three-month mark. See Jones, 

 (Alito, J.,
  concurring in the judgment) (“We need not identify with precision
  the point at which the tracking of this vehicle became a search, for
  the line was surely crossed before the 4-week mark.”). We express
  no opinion here whether we would reach the same conclusion if (1)
  the duration of the surveillance had been much shorter (say, one or
  two weeks); or (2) the police had, after such period of time, sought a
  warrant based on what had been observed or discontinued its
  warrantless surveillance but later resumed it after a significant
  interval of time and upon acquiring further information.

                                    28
¶ 52   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.5 And

  because the evidence recovered from the property — the drugs —

  was critical to the prosecution’s case, its admission into evidence

  cannot be considered harmless beyond a reasonable doubt. See

  McKnight, ¶ 60 (determining that an unconstitutional search was

  not harmless beyond a reasonable doubt where the search

  uncovered the drug evidence used to convict the defendant).

  Consequently, Tafoya’s convictions must be reversed and the matter

  remanded for a new trial.

                      III.   Proceedings on Remand

¶ 53   The People argue that, in the event we conclude that the pole

  camera surveillance constituted a search, on remand the trial court



  5 The People assert that the application of the good faith exception
  to the exclusionary rule would have supported the admission of the
  evidence at trial. But because the prosecution did not raise this
  assertion in the trial court, we need not consider it. See People v.
  McKnight, 

.

                                    29
  should be allowed to consider whether the suppression motion

  should be denied on some other ground (for example, that the

  exclusionary rule should not apply). Tafoya disagrees, emphasizing

  that the People did not raise any such argument in the trial court.

¶ 54   During the pendency of this appeal, the supreme court issued

  its decision in People v. Morehead, 

. That binding

  precedent makes clear that it is not our place to direct the trial

  court whether to exercise its discretion on remand to consider any

  new arguments that the People might make in opposition to the

  suppression motion.

                              IV.   Conclusion

¶ 55   The judgment of conviction is reversed, and the case is

  remanded for a new trial.

       JUDGE RICHMAN and JUDGE BROWN concur.




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