From Predator Drones to Quadcopters: Law Enforcement Flies in the Face of the Fourth Amendment

“The use of drones is limited only by one’s creativity.” U.S. Dept. of Justice, Office of Community Oriented Policing Services, A Report on the Use of Drones by Public Safety Agencies—and a Wake-Up Call about the Threat of Malicious Drone Attacks. 1 (2020), https://cops.usdoj.gov/RIC/Publications/cops-w0894-pub.pdf. Deputy Chief Tony Zucaro’s vision, published in a recent U.S. Department of Justice (“DOJ”) report on the use of drones by public safety agencies, warrants an investigation into the question of whether the use of drones in law enforcement is limited by the Constitution. Id. 

Law enforcement agencies are investing in unmanned, aerial vehicles (“UAVs” or “drones”) as the role of drones in modern policing expands beyond search and rescue missions to more complex activities such as aiding criminal investigations, enforcing local ordinances, and conducting surveillance operations. (Stephen Rice, Forbes). 

In response to the pandemic, police are relying on drones to implement coronavirus restrictions.  (Kristine Phillips, USA Today). Law enforcement agencies are deploying drones in cities across the U.S. to deliver public service announcements and enforce social distancing. (April Glaser, NBC News). Protests for racial justice have presented law enforcement with another opportunity to expand the mission of drones. (Faine Greenwood, Slate). Drone surveillance is playing a critical role in law enforcement’s response to the mass demonstrations. Id. Equipped with facial recognition software, police drones have the ability to monitor both the movement of large crowds but can also track and identify individual protesters. Id.

Critics argue that warrantless drone surveillance violates the Fourth Amendment prohibition on unreasonable search and seizure. (Nathaniel Sobel, Lawfare). Under federal law, surveillance of property conducted by law enforcement in public spaces does not require a warrant. Taly Matiteyahu, Drone Regulations, and Fourth Amendment Rights: The Interaction of State Drone Statutes and the Reasonable Expectation of Privacy. 1 (2014), http://jlsp.law.columbia.edu/wp-content/uploads/sites/8/2017/03/48-Matiteyahu.pdf. Whether warrantless drone surveillance of a person meets the Fourth Amendment reasonableness requirement turns on the facts (e.g. the length of time the target is surveilled and the location of the drone and target). Id.  In response to this uncertainty, eighteen states have passed laws that require police to obtain a warrant before conducting drone surveillance. (Matt Reynolds, ABA Journal). 

Drone surveillance is limited by the constitutional constraints defined by the Supreme Court in states with and without a warrant requirement. In California v. Ciraolo, the Court upheld an aerial search executed without a warrant because the Fourth Amendment does not preclude police observations taken from a public vantage point where the officer has a right to be and is visible to the public. California v. Ciraolo, 106 S.Ct. 1809 (U.S. 1986). The court affirmed Ciraolo, in Florida v. Riley, ruling that no reasonable expectation of privacy existed when the subject matter, observed by a police helicopter flying in public airspace, could also be observed by the public. Florida v. Riley, 109 S.Ct. 693, 696 (U.S. 1989).

Advances in technology recently led the Court to revisit Ciraolo and Riley. In Carpenter v. United States, the Court ruled a warrantless search and seizure of cell phone records unconstitutional. Carpenter v. United States, 138 S.Ct. 2206, 2219 (U.S. 2018). The Court found that seven days of cell phone records fell within a person’s reasonable expectation of privacy.  Id. By collecting a user’s location and movements without a warrant, the police violated the Fourth Amendment’s reasonableness requirement. Id. at 2220.

If collecting information on a person’s location and movements through a warrantless seizure of cell phone records is unconstitutional, should the police be required to obtain a warrant for drone surveillance before tracking, recording, and storing information on the location, moments, and identity of a peaceful protestor? Like in Ciraolo and Riley, cases that expanded the use of aerial searches in law enforcement, drones provide police with an aerial vantage point from where they can target and observe both people and property. However, the information that drones are capable of collecting far exceeds the observations a police officer is able to make aboard a plane or helicopter.

Taking into account the capabilities of a drone in the context of policing, warrantless drone surveillance starts to resemble the illegal search and seizure in Carpenter. Fitted with GPS, high-resolution cameras, and facial recognition technology, police drones are sophisticated surveillance tools, capable of remaining undetected while identifying individuals in a crowd and tracking the location and movements of a target in real-time. (Faine Greenwood, Slate). These capabilities will expand as technology advances; to preserve our constitutional rights, the creativity of law enforcement cannot be the limiting factor.   

Advocates of warrantless drone surveillance argue that the right to privacy is surrendered when a person enters a public space. This view of an unfettered drone police force is not supported by law. In fact, Justice Stewart argued that one’s reasonable expectation of privacy is not abandoned at the front door: “what [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz v. United States, 88 S.Ct. 507, 511 (U.S. 1967). Privacy advocates argue that the protections in Katz and Carpenter extend to warrantless drone surveillance of protests in public spaces. (Nathaniel Sobel, Lawfare).

There is a place for drones in law enforcement that does not jeopardize one’s reasonable expectation of privacy. Drones assist police in finding missing persons, responding to natural disasters, and reducing emergency response time. Nevertheless, the public cannot rely on law enforcement to self-impose drone restrictions. Nor should law enforcement bear the burden of defining the legal limitations of drone surveillance. In the absence of a federal statute or until the Court strikes a balance between public safety and privacy concerns, police will continue to push the boundaries of the Fourth Amendment.