The use of unmanned aerial vehicles (UAVs) or “drones” by law enforcement has significantly increased as the technology rapidly evolves. Historically, the law regarding the use of technology has typically lagged the technology. This has not been the case with the development of drone technology. Many states have enacted statutory restrictions governing the use of drones by law enforcement. Furthermore, Congress has proposed several bills regarding the use of drones, with one bill specifically addressing the use of drones by law enforcement. This article will serve as an update on the current status of the emerging law of the use of drones for law enforcement purposes.
The last two years have seen remarkable innovations regarding the use of drone technology. From fixed-wing drones to quad-copter drones that can hover, and with rapidly increasing flight duration and payload capability, drones have become a key surveillance technology for law enforcement. High resolution cameras with live video “feeds” enable law enforcement to put an “eye in the sky” enabling them to see into places quickly and easily, including “curtilage” areas around residential dwellings. This enhanced surveillance ability has created significant privacy concerns.
When new technology allows law enforcement to “see” into areas that are otherwise secluded from view, the first legal consideration is the Fourth Amendment to the United States Constitution. Fundamentally, the Fourth Amendment requires that all government searches and seizures must be reasonable. Reasonableness requires either a warrant or a judicially recognized exception (JRE). Accordingly, if the use of a camera-equipped drone constitutes a “search” under the Fourth Amendment, then such use would be unreasonable without a warrant or a JRE. This would implicate the Exclusionary Rule, which could possibly prevent the evidence obtained from being used against the defendant. So, the first question is: Does the use of a drone by law enforcement constitute a search under the Fourth Amendment?
As of the date of this article, there are no Supreme Court decisions regarding the constitutionality of the use of a drone to peer into an area of curtilage. Accordingly, we have to look at other decisions regarding the use of similar technology to predict how the courts might react to such a challenge in the future. The question of the legality of the use of an “eye in the sky” by law enforcement is not new. The United States Supreme Court (which is the ultimate arbiter of the Fourth Amendment) has decided that the use of manned aircraft to overfly and look into areas of curtilage, which are afforded the same degree of constitutional protection under the Fourth Amendment as the dwelling itself.[i] For example, the Supreme Court has ruled that it is not a search to look into an area of curtilage from an airplane at 1000 feet[ii] or a helicopter at 400 feet[iii]. The reaction of federal courts to the use of pole camera technology was not so favorable. In a key case followed by other federal circuits[iv], the Fifth Circuit held it was a Fourth Amendment search to use a pole camera to peer into an area of curtilage that was screened from view by law enforcement officers standing in a place where they had a right to be present. Extrapolating the privacy concerns of the courts in these cases and applying it to the use of drones, it is certainly reasonable to predict that the courts would consider the use of a drone by law enforcement to look into an area of curtilage screened from view at street level to be a Fourth Amendment search.
The Fourth Amendment provides a baseline of protection that the people have from government searches and seizure, but Congress can always provide people with more protection through the enactment of federal statutes. Moreover, states can enact laws that give people even more protection from government action than does Federal law. Eighteen states have decided not to wait for the courts or Congress to take action and they have, to varying degrees, enacted laws that govern the use of drones by law enforcement.[v] In all of these states (except Florida), a warrant is required for law enforcement to use a drone to observe private property regardless of privacy issues. In other words, they require a warrant to use a drone even to look into an area where a person has no reasonable expectation of privacy from being observed. These statutes also have strict exclusionary penalties that are much broader than the Fourth Amendment’s exclusionary rule. Florida is the only state of the group with a statute that attempts to apply Fourth Amendment principles by requiring a warrant if the area observed by the drone cannot be seen from the ground by a law enforcement officer standing in a place where he has a right to stand.[vi]
On the Federal side, Congress is usually slow to react to the use of technology, often reacting to decisions made by the Supreme Court. This is not the case with the use of drones by law enforcement. Currently, there is a combined house and senate bill that has been introduced called the Drone Aircraft Privacy and Transparency Act of 2017.[vii] If this bill becomes law, law enforcement officers would be required to obtain a warrant to use a drone for law enforcement purposes without regard to privacy. That is incredibly broad! There are a couple of national security and exigent circumstance exceptions, but overall it would require law enforcement officers to obtain a warrant just to use a drone. This prohibition also applies to the use of data acquired from non-governmental drones even if they are lawfully used. This bill also contains minimization requirements for surveillance data much like those imposed for Federal video warrants and Federal wiretap orders. Furthermore, if enacted, as a Federal statute it would preempt any state law that imposed less of a restriction on the use of drones by law enforcement. This would include Florida’s statute.
Currently, the only statutory law that applies to the use of drones by law enforcement is state law in the eighteen states that have these laws. But we need to carefully monitor the progress of the Drone Aircraft Privacy and Transparency Act of 2017 which, if enacted, will preempt state law and significantly impair the use of drones for law enforcement nationwide.
[v] Florida, Virginia, Tennessee, North Carolina, Texas, Vermont, Maine, Indiana, Illinois, Wisconsin, Iowa, North Dakota, Montana, Idaho, Oregon, Nevada, Utah, and Hawaii.