FBI Use of Unmanned Drones for Aerial Surveillance Raises Fourth Amendment Concerns

The Federal Bureau of Investigation (FBI) is operating a “small air force” of airplanes and unmanned drones around the country, according to a report published by the Associated Press (AP) earlier this year. The agency, part of the U.S. Department of Justice (DOJ), reportedly uses these aircraft for a variety of surveillance activities, often without a warrant. The U.S. Supreme Court first ruled on warrantless aerial surveillance decades ago, but new technology brings different Fourth Amendment concerns. Rather than mere visual observation by law enforcement officers from helicopters or planes, today’s unmanned aerial drones can possess far greater surveillance capabilities. They can also stay in the air as long as they have enough fuel to stay there, and someone on the ground to control them.

The AP’s June 2015 report identified 13 fictitious companies used by the FBI as fronts for aerial surveillance activities, as well as 100 flights all over the country between April and June. Many of the flights seemed to involve repeated circling of large urban and rural areas. The FBI has stated that it uses drones to support local law enforcement in some situations, such as during the demonstrations in Baltimore earlier this year, but many details of its operations remain hidden from the public.

Much of the concern over aerial surveillance drones stems from the fact that, in addition to cameras allowing visual surveillance, they can carry various types of electronic monitoring technology, including a device known as a cell-site simulator or “Stingray.” This device collects data from cell phones and other mobile devices within a certain radius by pretending to be a cell-phone tower. Mobile devices are programmed to communicate with the nearest cell tower. The practice has garnered a great deal of criticism but has received little attention from high levels of the criminal court system.

A March 2015 report by the DOJ’s inspector general concluded that the FBI was the only DOJ agency to use drones in its operations. In May 2015, a DOJ memo stated that it will conduct annual “privacy reviews” of drone use and directed employees to limit drone use to officially authorized operations. The fact that this needed to be stated so plainly is disquieting.

The Supreme Court has issued a series of rulings on aerial surveillance, mostly dealing with questions of altitude and whether something is in plain view. The court held in California v. Ciraolo, 476 U.S. 207 (1986), that police did not violate a man’s Fourth Amendment rights when, acting on an anonymous tip that he was growing marijuana in his backyard, they flew an airplane over his property at an altitude of 1,000 feet and took photographs without a warrant. The court reached a similar conclusion in Florida v. Riley, 448 U.S. 445 (1989), which involved a police helicopter hovering 400 feet above the defendant’s property. Its decision in Dow Chemical Co. v. United States, 476 U.S. 227 (1986), applied a similar ruling to commercial property, as opposed to residential curtilage.

All of the Supreme Court decisions mentioned above involved visual surveillance from public airspace. They may not directly address other concerns presented by drone surveillance that uses more sophisticated technology. The issue may turn more on cases that dealt with electronic surveillance, and in which the court sided with the defendant, such as Katz v. United States, 389 U.S. 347 (1967) (warrantless wiretapping of a public telephone); Kyllo v. United States, 533 U.S. 27 (2001) (thermal imaging of a suspect’s home without a warrant); and United States v. Jones, 565 U.S. ___ (2012) (warrantless installation of a GPS tracking device on a suspect’s car).

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

For more than two decades, criminal defense attorney Michael J. Brown has defended people in criminal proceedings in state and federal courts in west Texas. To schedule a confidential consultation with an experienced and skilled advocate for defendants’ rights, contact us today online or at (432) 687-5157.

More Blog Posts:

Facial Recognition Technology Arrives at Texas Border Patrol Stations, Texas Criminal Lawyer Blog, July 17, 2015

Police Use of Surveillance Technology Without Warrants Prompts Court Challenges, Legislation, Texas Criminal Lawyer Blog, May 15, 2015

Courts Rule on Issues of Data Privacy, with Important Implications for Electronic Monitoring and Searches, Texas Criminal Lawyer Blog, October 30, 2014


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