Lawmakers Propose Restrictions on Drone Surveillance

Surveillance by unmanned aerial vehicles (UAVs), also known as drones, is causing concern among criminal defense attorneys and privacy advocates, as more and more law enforcement agencies acquire unmanned airplanes and helicopters. The constitutionality of warrantless drone surveillance remains in dispute. In the Texas Legislature, a House bill proposes regulating the use of drones, including requiring warrants for most surveillance operations.

Numerous police departments around the country have sought authorization to operate drones, which would allow them to monitor citizens unobtrusively from the air. According to the Federal Aviation Administration (FAA), eighty-one cities, counties, state and federal agencies, military branches, and public universities applied for licenses in 2012. Arlington, Texas, for example, has two remote-controlled helicopters purchased in 2012 for over $200,000. The Arlington Police Department was among the applicants listed by the FAA, as well as the Houston Police Department, the statewide Texas Department of Public Safety, and two campuses of Texas A&M University.

FAA regulations currently prohibit commercial drone use, such as taking photos or videos from the air for business purposes. A bill introduced in the Texas House by State Rep. Lance Gooden (R-Terrell), would prohibit any photography or videography of private property by a drone without the owner’s or occupant’s permission. It allows exceptions for law enforcement with a warrant or exigent circumstances and for “border security.” Opponents say the bill is too vague, restricting beneficial drone uses along with the abuses. Some sort of statute may be necessary, however, to resolve privacy and due process questions left by caselaw.

Police generally cannot search a property without a warrant or probable cause. Evidence of criminal conduct in an officer’s “plain view” may be subject to search and seizure, but the question here is the location from which police may look for evidence. The Supreme Court ruled that individuals do not have a reasonable expectation of privacy for anything visible from an airplane at an altitude of one thousand feet. California v. Ciraolo, 476 U.S. 207 (1986). According to a subsequent ruling, police surveillance from a helicopter hovering at four hundred feet above a defendant’s home did not violate the Fourth Amendment. Florida v. Riley, 488 U.S. 445 (1989).

A plurality of justices in Riley ruled in part based on the police helicopter’s adherence to FAA regulations. In a dissent, Justice Brennan noted that this opinion would allow helicopter surveillance from anywhere the pilot “has a right to be,” id. at 461, and that the only limit the plurality seemed to recognize was interference from the helicopter with the defendant’s use of the property, perhaps “through noise, wind, dust, and threat of injury.” Id. at 461-62. Justice Brennan and, in a separate dissent, Justice Blackmun noted that law enforcement should be required to prove that police helicopters routinely flew over a defendant’s property in order to establish that no reasonable expectation of privacy existed. Id. at 468.

The two dissents in Riley bring up important issues left unanswered in the context of drones. UAVs, particularly small helicopter-style models, may be able to observe private property from very low altitudes without causing any of the damage Justice Brennan described for a helicopter. Drones are both smaller and quieter than helicopters. By this reasoning, police could use drones at any altitude with little concern for disrupting the defendant’s use of the property. As for Justice Blackmun’s question of routine overflights, drones tend not to make much noise, and by design tend not to be noticeable. At the present moment, few to no people in the U.S. are accustomed to drone overflights. Does this mean none of us should expect privacy?

Michael J. Brown, a board-certified criminal defense attorney, fights for the rights of Texas defendants, making certain that law enforcement and the courts abide by all the rules and procedures of the criminal justice system. To learn more about how we can assist you in your legal matter, contact us online or at (432) 687-5157.

More Blog Posts:

Lawsuit Against Border Patrol Tests Applicability of Fourth Amendment Protections Across a National Border, Texas Criminal Lawyer Blog, November 27, 2012
Federal Judge Approves Warrantless Hidden Video Surveillance in Drug Case, Texas Criminal Lawyer Blog, November 26, 2012
Use of Unmanned Drones by Law Enforcement Raises Fourth Amendment Concerns, Texas Criminal Lawyer Blog, October 5, 2012

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