The advent of domestic drones in America may not be simply a matter of when—but more importantly how? The capabilities of domestic drone technology have been well documented; from commercial delivery to border patrol, from real estate photography to rescue missions, the range of drone application seems boundless.
The worrisome application of UAV technology resides in criminal surveillance investigation. In light of the potential threat to privacy rights that drones impose, many states have enacted -or are considering– legislation that regulates the use of drones in criminal investigations. But in the absence of Federal law and consistent state laws, the courts may soon be confronted with the question of whether drone surveillance can be restrained by the Fourth Amendment’s guarantee “against unreasonable searches.”
Generally, if a court deems a particular police action to be a “search” under the Fourth Amendment, it triggers the requirement for a warrant. But when does law enforcement’s operation of advanced technology amount to the legal definition of a “search?” A look to the Supreme Court of the United States’ past case law on technology and police surveillance may hold the answer.
In Katz v. United States, the nation’s highest court held that police’s use of technology, which intrudes upon an individual’s reasonable expectation of privacy, is a search. While the Katz decision welcomed the Court into the 20th century’s technology, is begs the question: when is an expectation of privacy reasonable under the Fourth Amendment?
In a trilogy of 1980s cases (Florida v. Riley, California v. Ciraolo & Dow Chemical v. U.S.) the Supreme Court ruled that aerial surveillance (airplane or helicopter) of a private backyard does not invade an individual’s reasonable expectation of privacy if conducted within public navigable airspace. Simply put, if police comply with FAA regulations, any and all naked-eye observations from the air do not require a warrant. If privacy rights are to be protected in the 21st century, the Court must distinguish aerial, “naked-eye” observations from the operation of a police drone upon a private residence.
In Kyllo v. United States, police used a thermal imaging device on a suspected marijuana grower’s home in order to observe heat signatures from its interior. Despite the absence of a traditional, physical intrusion upon the home, the Court defined this action as a search because such technology was not in “general public use.” The Kyllo case presents the perplexing question upon the rise in drone technology—just when will emerging technology be deemed in “general public use”?
GPS Vehicle Monitoring
If police attach a global positioning system device (GPS) upon a suspect’s vehicle to monitor their movements without a warrant, it is a search under the Fourth Amendment. In a bizarre majority opinion for the 21st century, Justice Antonin Scalia focused on whether the GPS physically violated an “18th-century guarantee against un- reasonable searches” rather than focusing on whether the technology intrudes upon a reasonable expectation of privacy. Justice Scalia’s opinion resembles the Court’s antiquated physical-intrusion approach prior to Katz. Because the central holding of Jones overly focuses on the physical intrusion of technology and refused to answer the case from a privacy-interest approach, the case serves as an unhelpful precedent for future drone technology cases.
Police Drug-Detection Dog
In Florida v. Jardines, the Supreme Court decided that police’s warrantless use of a drug-detection dog upon the front porch of a private residence is a search, thus triggering Fourth Amendment protections. While a drug-sniffing dog may not seem analogous to digital technology, Justice Elena Kagan asserted that such use of a drug-sniffing dog “is to the poodle down the street as high-powered binoculars are to a piece of plain glass. Like the binoculars, a drug-detection dog is a specialized device for discovering objects not in plain view (or plain smell).” Justice Kagan went onto to say, when a technological “device is not ‘in general public use,’ and is used against a home, it unreasonably violates” an individual’s reasonable expectation of privacy.”
What do we make of these cases in their application to drone technology?
- The Court’s approach to Aerial Surveillance must evolve. Given that an operator may be hundred of yards if not miles away from an UAV, this surveillance should never be considered to be a “naked-eye observation.”
- Any device used to provide information from the interior of a home is likely to be deemed a search—so long it is “not in general public use.”
- The “general public use” evaluation of technology is ill equipped to define the future balance between advancing technology and privacy rights.
- The ambiguity between the Supreme Court’s relevant case law further solidifies the need for states and Congress to adapt statutory restrictions and warrant requirement for police drone technology. But in the absence of specific Federal legislation, as Director of The National Constitution Center Jeffrey Rosen concluded: “if we are to preserve in the twenty-first century the same amount of privacy that people took for granted in the eighteenth, the Court may have to act.”