Use of Unmanned Drones by Law Enforcement Raises Fourth Amendment Concerns

Congress passed a bill earlier this year broadening both governmental and commercial use of unmanned aerial vehicles, commonly known as “drones.” Drones have seen extensive use by the U.S. military in Iraq and Afghanistan, and they appear along U.S. borders on a regular basis. Their use within the United States, however, gives rise to a wide range of concerns about privacy and Fourth Amendment rights. Law enforcement has made at least one arrest with information obtained by drone, and a court has upheld the arrest. Prior search and seizure decisions from the U.S. Supreme Court may provide guidance on the use of drones in domestic law enforcement, but the laws are truly being written on the fly.

The legislation, passed by Congress in early February 2012, requires the Federal Aviation Administration (FAA) to revise its procedures for authorizing drone use, and it mandates commercial use of drones by September 30, 2015. Current law only allows private individuals to use unmanned vehicles as a hobby, with an upper limit of four hundred feet within the user’s line of sight. In April 2012, the FAA released a list of businesses and organizations that have requested authorization to operate drones within the U.S. The list currently includes law enforcement and other state agencies, colleges, and universities. It could expand to include private corporations within a few years. The FAA authorization process covers drones ranging from small models costing $100 or less to the multi-million dollar models used by the military.

A report from the Congressional Research Service (CRS), released in September, addresses concerns about the effect of drones on Fourth Amendment rights. The most relevant precedents might be the cases addressing manned aerial vehicles. The Supreme Court has held that visual aerial surveillance does not violate the Fourth Amendment. In California v. Ciraolo, 476 U.S. 207 (1986), the Court held that police did not violate the Fourth Amendment by observing the fenced-in backyard of a marijuana suspect from a helicopter at 1,000 feet, because the surface of the backyard was exposed to public view. In Kyllo v. United States, 533 U.S. 27 (2001), however, the Court held that the use of infrared detection to identify marijuana cultivation inside a suspect’s house did violate the Fourth Amendment. Jurisprudence surrounding drone surveillance may follow the reasoning of these cases.

The first reported arrest in the U.S. based on drone surveillance occurred in June 2011 in Lakota, North Dakota. Police reportedly tried to investigate missing cows on a 3,000-acre farm, and met with armed resistance. They called in reinforcements, including a Predator-B drone belonging to U.S. Customs and Border Protection. The drone, circling at an altitude of two miles, pinpointed the location of three suspects and determined that they were not armed. Police used that information to close in and arrest the suspects. A court denied a motion to dismiss brought by one of the defendants, Rodney Brossart, in August 2012. The court held that the use of the drone did not appear improper, and that the charges against Brossart did not rely on information obtained by the drone. The question of material evidence obtained by a drone, therefore, remains unsettled.

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.

Web Resources:

Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses (PDF file), Congressional Research Service, September 6, 2012
More Blog Posts:

Ninth Circuit Case Questions Authority of Federal Border Agents to Make Traffic Stops in Texas and Nationwide, Texas Criminal Lawyer Blog, August 28, 2012
El Paso Intelligence Center Monitors U.S. Border and Much More, Texas Criminal Lawyer Blog, July 29, 2012
New Technology Means Electronic Communications Increasingly Monitored in Texas, Nationwide, Texas Criminal Lawyer Blog, July 22, 2012

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