The Fourth Amendment constitutionally protects the people of the United States from intrusion by the government into their private lives. It ensures the “right of the people to be secure” and free from “unreasonable searches” as it pertains to their “persons, houses, papers, and effects” (U.S. Const.).
Since warrantless searches would be considered unreasonable, Spelman (2015) proposed three doctrines which might determine if a search by law enforcement needed a warrant or not: a) the reasonable expectation of privacy, b) common-law physical trespass, and c) technological trespass.
In Katz v. U.S., the court held that the Fourth Amendment protects people, not places. The ruling of the court in 1967, decided that the FBI conducted a search when they used a listening device to monitor and record a conversation conducted in a public telephone booth. The court determined this act violated the individuals Fourth Amendment right of a reasonable expectation of privacy (Jenks, 2015; Spelman, 2015; Thompson, 2013). The decision of the court in Katz was based on the test of two components. First, “that a person have[sic] exhibited an actual expectation of privacy” and second, “that the expectation be one that society is prepared to recognize as reasonable” (Matiteyahu, 2015, p. 270).
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In the case of United States v. Causby, it was determined that a property owner owns the airspace around his home up to the height of the roof. Any space above the roof is treated similar to an open field and therefore, surveillance conducted above roof level passes the physical trespass test and does not violate an individual’s Fourth Amendment rights (Spelman, 2015).
In 2001, Kyllo v. United States, tested the technological trespass law. Relatively new doctrine required a warrant be obtained by law enforcement when conducting surveillance of the interior of a home using technology to gather such information. This doctrine only required a warrant if the technology was considered not in general public use. In the case of Kyllo, the court decided the use of a thermal imaging device used to monitor the heat radiated by a person from the home constituted a “search” and required a warrant, since the technology was not widely used by the general public (Cavoukian, 2012; Jenks, 2015; Spelman, 2015).
Three court cases, California v. Ciralo, United States v. Jones, and Florida v. Riley, provide a legal starting point as to how drones used by law enforcement will stand up against the Fourth Amendment. In each of the cases, the courts ruled that a person’s Fourth Amendment rights had not been violated and there was no reasonable expectation of privacy in regards to aerial surveillance by law enforcement since the same observations could have been made by the general public (Aquino-Segarra, 2016; Frazier, 2016; Jenks, 2015).
Applying the common-law physical trespass doctrine in United States v. Jones, 2012, the Supreme Court determined the government was in violation of an individual’s Fourth Amendment rights when they physically attached a GPS tracking device to his car in order to monitor his movements over a long period of time. The court ruled this constituted a search based on his expectation of privacy and protection against trespass of “persons, houses, papers, and effects” (U.S. Const). Based on the court’s decision in this case, it may become constitutionally necessary for law enforcement to obtain a warrant for any use of sophisticated surveillance technologies using drones in public spaces (Cavoukian, 2012; Jenks, 2015; Spelman, 2015).
Furthermore, when considering the case of Jones, it is reasonable to assume that based on the court’s ruling of the use of a GPS tracking device, the use of drone technology to track an individual over an extended period of time would also be considered a search under the mosaic theory as it applies to the Fourth Amendment (Jenks, 2015). These cases must be considered when directing policy at the local law enforcement level.
The cases of Kyllo and Jones could provide insight into future court decisions, which will affect how law enforcement agencies develop policy. In the case of Kyllo, the court’s ruling was based on the premise that thermal imaging was not considered to be used by the general public. As technology continues to evolve and become more cost effective, the general public may have more access to devices once considered rare (Jenks, 2015).
In the case of Dow Chemical Co. v. United States, the court’s decision was similar to the cases of Riley and Ciralo. The distinction here was that the surveillance was conducted over a 2,000 acre commercial rather than private property. The court concluded that the commercial complex was considered to fall between an “open field” and “curtilage” with characteristics of both. Curtilage is the land immediately surrounding a house or dwelling, to include any buildings or structures. Open field is defined as the area beyond curtilage, and does not fall under protection, which the Fourth Amendment describes as persons, houses, papers, or effects. The final ruling by the court was similar to Ciralo and Riley, in that the same observations could have been made by the general public and there was no reasonable expectation of privacy (Jenks, 2015; Matiteyahu, 2015).
Two points stand out in these cases, which might affect future court rulings pertaining to unmanned aircraft. First, the public could have made a similar observation as law enforcement since this was considered public air space. Second, the justification by the Supreme Court that this was not a rare incident and was based on the fact that over 1,500 police helicopters were in operation in the U. S. at that time (Jenks, 2015). With the increase in popularity of drones in the U. S., it is highly probable that privately owned drones will far exceed the number of law enforcement drones in the future. This should strengthen the argument against any expectation of privacy and violation of an individual’s Fourth Amendment rights.
Two cases, United States v. Knotts and United States v. Karo, similar in content, but with different outcomes, only serve to muddy the water for law enforcement trying to develop policy. In the case of Knotts, after a monitoring device was placed in an item by law enforcement and given to the subject, his movements were tracked along public roadways. The court held that the subject had no reasonable expectation of privacy on public roads and therefore no warrant was required (Thompson, 2013).
In the case of Karo, law enforcement tracked an individual with a beeper device both on public roads and into a private residence. In this case, the court held that the search was unlawful due to an expectation of privacy at the residence (Thompson, 2013). It would be nearly impossible for law enforcement to determine prior to tracking an individual whether or not they would enter private property. The same would hold true for tracking individuals with drone technology, making it very difficult for agencies to develop policies and procedures based on the past rulings of the multiple court decisions to date.
A point which must be considered is the actual use of drones by law enforcement today. Between 2011 and 2013, the Mesa County, Colorado, Sheriff’s Office conducted over 40 drone missions consisting of search and rescue, crime scene images, and imagery in support of fire suppression. However, none of the missions flown were for surveillance purposes (Villasenor, 2013).
Professor Joh Villasenor, University of California, Los Angeles, contends the data collected by drones along with data compiled on smart phones and other mobile devices, will become part of a larger digital footprint of nearly everything we do (Cavoukian, 2012). According to Thompson (2015), unless there is established a distinction between traditional forms of surveillance by law enforcement and that using drone technology, existing jurisprudence suggests that courts would uphold drone surveillance in most cases. So far, the Supreme Court has not wished to delve into setting precedent where law enforcement’s use of drones is concerned due to the underlying theme of protecting citizen’s health and safety (Thompson, 2013).
In 2006, the Los Angeles County Sheriff’s Department was one of the first to utilize drone technology (Gettinger, 2017). Since then, the use of drones by public safety departments has continued to rise. Due to shrinking budgets, law enforcement has turned to technology to fight crime (Rudisil, n.d.). This technology includes the use of drones for tactical situations and as a platform for surveillance (Rudisil, n.d.). Given the rapid pace at which technology advances, the possible applications for drones in law enforcement is only limited to the imagination of developers.
Drones offer capabilities for law enforcement ranging from use of force to remote sensing. Use of force applications can keep officers out of harm’s way and provide tactics not feasible by officers alone such as, dispersing of riot control agents, rapid response capabilities, and protecting officers during confrontation with armed suspects (Brumfield, 2014; Straub, 2014). Maragaritoff (2017) acknowledged that the use of drones would help officers do their job and was one more tool available to law enforcement to save people’s lives.
Remote sensing technology can allow for the tracking of suspects based on facial recognition or heat signature, capturing evidence, and directing officers to appropriate locations during emergency situations. Most drones in use by law enforcement are equipped with, or can be equipped with, high-tech camera systems, forward-looking infrared systems, and facial recognition software (Cavoukian, 2012; Straub, 2014). This advanced technology has the capability of decreasing the operational expenses of equipment and manpower, freeing up officers for other duties.
The views of society toward drones most often stem from misconceptions about how law enforcement will utilize them, personal biases, and emotions (Jenks, 2015). Early attempts at drone legislation to support law enforcement were met with unfavorable results. In 2013, the city of Charlottesville, Virginia banned the use of drones for law enforcement. The next day, the Virginia legislation passed a two-year moratorium on the use of UAS by law enforcement, despite the fact that the FAA had just selected the Virginia Polytechnic Institute as a UAS research and test site (Jenks, 2015; Rainer, 2014).
An article by Jenks (2015) concluded that most attempts by states at regulating drone operations has been reactionary to public outcry. Legislation fails to address key issues and questions surrounding privacy for both society and government agencies. Several states with legislation pertaining to law enforcement require registration and some form of reporting, which can be available to the public. Two states, Virginia and Oregon, specifically ban weaponized drones (Matiteyahu, 2015).
In 2010, the Seattle Police Department purchased two drones to be used for search and rescue, hostage situations, and natural disasters. After negative outcry by citizens, the mayor of Seattle stopped the use of the drones and they were later sold to the Los Angeles Police Department (Jenks, 2015). In 2013, the Illinois legislation enacted “The Freedom from Drone Surveillance Act.” In support of law enforcement, an exception to this act allows departments to utilize drones for the surveillance of suspects in addition to other specific circumstances (Jenks, 2015).
Through the application of FAA Certificates of Waiver, law enforcement agencies across the country are already using drones in their day-to-day operations (Spelman, 2015). Currently, 347 state and local agencies, associated with public safety, have purchased drones for their departments (Wallace & Loffi, 2017). This number rapidly grows each day. As of 2014, the FBI had spent over three million dollars on the use of drones for domestic surveillance since 2006 (Spelman, 2015). However, one issue on the part of the FBI is the lack of policy pertaining to the use of drones. The FBI has consistently determined drone limitations based on case-by-case information (Spelman, 2015).
The U.S. Customs and Border Protection (CBP) has for years utilized the Predator drone for surveillance along the border. The Predator is a large fixed wing drone which is used by the U.S. military in operations overseas. Other law enforcement agencies have utilized CBP predator drones for domestic operations as well (Spelman, 2015). The CBP has coordinated the use of drones to combat border-crossing violations, search for missing persons, and investigate drug related cases with law enforcement agencies in Texas, North Dakota and Minnesota (Spelman, 2015).
Gettinger (2017) comments that drones are no longer a novelty item when it comes to law enforcement. Currently, over 347 public safety departments have acquired and are currently using drones, with no signs of a slowdown in acquisitions. Of the 347 departments using drones, police departments make up 96 and 121 are sheriff’s offices. Forty-seven percent of these agencies were located in areas with a population less than 50,000 (Gettinger, 2017). This constitutes a 518 percent growth in drone use from 2015 to 2017 (Margaritoff, 2017). This growth includes use by law enforcement for search and rescue, traffic collision reconstruction, crime scene analysis, surveillance, crowd monitoring, and the investigation of suspects and active shooters (Margaritoff, 2017).
In an article written in response to the October 1, 2017, Las Vegas shooting, Wallace and Loffi (2017) point out the possible benefits of deploying a drone in this case. A drone would have the capability of bypassing physical barriers, which hampered officers on the ground. The use of a drone in this or similar situations would provide actionable reconnaissance and real-time intelligence information to aid law enforcement (Gazzar, 2017). Most importantly, the use of a drone in any tactical situation decreases or eliminates officer exposure to dangerous tactical threats (Wallace & Loffi, 2017).
According to an article by Police One, five UAS technologies currently in use or being considered by law enforcement include the ELIMCO E300, L3 Communications Viking 400-S, Information Processing Systems’ MCV, Sensefly’s eBee, and the Kaman UAT. The ELIMCO E300 and the Kaman UAT are noted for their cargo capabilities. The eBee for its small size and portability. And the Viking 400-S and MCV for their payload technologies, which include communications systems, high-resolution cameras, and night vision capabilities (5 UAS Technologies, 2017).
