Advances in technology are happening every day, and while these are often extremely useful for public services such as law enforcement, they also come with a series of sometimes complex, legal issues. Many of these issues have since raised the question as to whether existing rules of law need to be changed or updated to remain relevant. Where unmanned aerial vehicles are concerned – otherwise known as drones – never has this question been more pertinent.
With their affordability and sophisticated technology, drones have become popular tools for law enforcement officers to help them catch criminals, monitor criminal behavior and assist in emergencies, but while they can be incredibly useful, their use does come with Fourth Amendment concerns, particularly when it comes to private residences and property.
What are the concerns surrounding law enforcements use of drones and The Fourth Amendment?
Protecting U.S. residents from unreasonable searches and seizures being carried out by the government, The Fourth Amendment to the US Constitution is oft referred to in cases seen by the U.S. Supreme Court, and over the years it has used two specific tests to determine whether a search can be deemed reasonable under its proviso. The first involves a 1928 case involving trespass or physical intrusion, while the second originates from a case in 1967.
Should warrants be obtained for the use of drones by law enforcement officers?
Different in many ways to helicopters and planes, there is reasonable cause to suggest that city officials obtain a warrant before using a drone to fly over and film, private properties. While drones are used by members of the public, flying them over residential areas that are private, is usually not permitted by existing FAA rules, unless under very limited circumstances. Also, when a pilot or other person is viewing footage or pictures obtained by a drone, they’re not seeing it firsthand with their own eyes, and the images are open to manipulation in a variety of ways, such as by zooming in more closely.
There are also concerns over the height at which a drone must fly for it to be used in a legal search that is compliant with The Fourth Amendment. While the FAA permits them to be flown lower than other aircrafts, it’s still not clear how low this can be when it comes to flying over private residences without violating their right to privacy.
One other final concern over the use of drones by law enforcement, is that they are notorious for veering off course and potentially crash landing onto private property, which could result in a ‘search’ under the guidance of the original trespass test.
While little has been set in stone legally over the use of drones by law enforcement when it comes to searches and seizures, it’s widely accepted that a warrant would need to be obtained by city officials should they wish to use drones for official police business.