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Colorado court overturns drug conviction because CSPD surveillance was unconstitutional

COLORADO SPRINGS, Colo.- A recent Colorado court ruling most certainly will impact how law enforcement builds future cases against suspects especially when it comes to surveilling.

A 15-year prison sentence of Colorado Springs man was overturned in late November after the state Appeals court ruled investigators violated the man's fourth amendment rights.

For three months in 2015, Colorado Springs police watched Rafael Tafoya's home believing he was running a drug operation. His attorney Robert Borquez says they patrolled him not with an officer, but a surveillance camera perched on top of a nearby utility pole that recorded everything 24/7.

"The camera could zoom in and out, it could pan the property and all of this could be done at the police headquarters without anyone getting up from their desk," Borquez says, "I mean this is big brother."

After surveying the home for three months police were able to obtain a warrant to search Tafoya's home where they found methamphetamine and cocaine that's what led to his original conviction in 2015. However, there was a big problem, the police didn't have a warrant to set up the surveillance camera.

Tafoya told the court the warrantless surveillance violated his right to privacy under the fourth amendment but he was convicted anyway. That's where Borquez comes in, helping get the case heard by the Colorado Court of Appeals. Arguing that Tafoya took precautions to keep his home private by having a six-foot-tall fence and a no trespassing sign on his property. "It was clear my client expressed an expectation of privacy," Borquez says.

The three Court of Appeal judges in the case agreed unanimously that it is illegal for the government to look over somebody's fence with a pole camera for a three month period of time violates the property owner's right to privacy. Even though the camera was on public property, without a warrant, the court says you still have a reasonable expectation of privacy.

But what does this mean for future cases? Borquez says the court didn't specify how long the police can surveil someone before it is deemed unconstitutional. But says this ruling could be used for other similar cases.

CSPD did give KRDO a statement in regard to the court overturning the conviction. They wrote,

"We are obviously incredibly supportive of the American judicial process.  We as police conduct an investigation and make an arrest based upon probable cause, which is then tried in court, at which time a defendant may be found guilty.  The defendant can then appeal that verdict and it may be overturned or affirmed by the Colorado Court of Appeals.  That ruling may then be examined by the Colorado Supreme Court who may make a ruling agreeing or disagreeing with the Appeals Court's decision. This is all part of the protections in place as part of our judicial system, and we as an organization are committed to upholding this process."

As for Tafoya, he can be released on a special bond and now will wait for a new trial.

Colorado Springs / Crime / El Paso County Crime / Local News

Chase Golightly

Chase is a reporter and an anchor for our weekend evening newscasts. Learn more about Chase here.



  1. I doubt that our Founding Fathers anticipated such extensive corruption and illegal activity in our country when writing the 4th Amendment. It’s unfortunate that something written with the best of intentions became something that criminals in all walks of life deliberately hide behind to conduct their illicit operations. So while continuing to safeguard those it was always meant to protect, it has also hampered the legal system and the true course of justice in recent years in particular.

    1. If you -like many other Coloradans-
      fervently support the Second amendment-
      then support ALL the Amendments-like the FOURTH.
      Support them all or support them NONE. Just like the Ten Commandments-
      you can’t pick which ones suit you.

      1. Do you know that in downtown ColoMexiFornia Springs you cannot take a step that is not on camera? Try suing for that and see how far you get. Just another case here of liberal ColoMexiFornia judges protecting a criminal.

        1. The only problem with this statement is that NONE of that footage can be used in a court of law. Only where a patron knows they are being recorded….such as a 7-11 or some other business that records.

    2. Wrong! This is EXACTLY what they anticipated when they wrote the 4th amendment! If they had probable cause they could have gotten a warrant and all surveillance would have been legal. There is a legal process and it was not followed. Cheers for the Supreme Court and Constitutional rights! That is what freedom is about! With rights come responsibility and costs. The good and bad are a package deal, thank G!

  2. Can they get him on illegal immigration charges and deport him?

    He must have built the fence for privacy to hide all his illegal activity.

    Must have been a panel of liberal ColoMexiFornia judges.

  3. This will be interesting to watch play out. What will that do for any future cases involving a camera? What if someones camera catches a criminal activity and turn it over to police. If the activity was recorded on their private property is it admissible or even able to be reviewed?

    1. Private cameras are different just like school locker the police can not search them with out a warrant however school officials do not need a warrant and the police can be there for the search. But they can not lets say call the school and say I want you to search John Smith’s locker that would make them an agent of the police and a warrant would be required. On the cameras the police can ask for the video or get a warrant and seize it. But they can not ask the person to train their cameras on to someone else property.

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