January 21, 2020 Feature

Path to Dystopia: Drone-Based Policing and the Fourth Amendment

Michael dePascale Jr.

In 2017, there were 836,796 hobbyist drone users in the United States. (Arthur Holland Michel & Dan Gettinger, Ctr. for the Study of the Drone at Bard Coll., Drone Year in Review: 2017, at 10 (2018).) Hobbyist drone users range from people who fly drones for fun to those who fly them to spy on others. Whether drone operators’ motives are benign or unsavory, the result is the same: members of the general public feel these drones invade their privacy. (See Jennifer Jolly, “Never, Ever Try to Shoot at a Drone.” Neighbors Buzz with Complaints over Pesky Drones, USA Today (Sept. 3, 2018).) Some of these qualms arise from the fact that many drones are equipped with cameras. Drone cameras are high quality, allowing drone users to record pictures and videos from previously inaccessible vantage points.

Running parallel to drone development is the law enforcement community’s persistent need to adopt new technology to modernize policing. Today, law enforcement officials have cameras on the dashboards of their vehicles and on their person, recording most interactions with the public. Law enforcement agencies are now slowly purchasing drones and integrating them into policing. (Dan Gettinger, Ctr. for the Study of the Drone at Bard Coll., Public Safety Drones: An Update (2018).) As society reluctantly accepts civilian drone use, law enforcement could potentially increase its reliance on drones, thus creating an era of “drone-based policing.” However, this new law enforcement model poses a significant threat to privacy. The paramount concern regarding drone-based policing is regulation. Unlike dashboard cameras and body cameras, the lack of strict regulation could enable law enforcement to grievously alienate citizens’ Fourth Amendment rights.

Though police agencies have already acquired drones, the courts have been relatively silent regarding regulation. This article will consider the way the US Supreme Court has approached other police technology and address the potential consequences of law enforcement drones. First, it explains the Fourth Amendment’s relevance to the topic. Second, it considers other police technology, the concerns those methods cause, and the way those concerns are currently addressed. Finally, it examines current law enforcement drone usage and takes a holistic approach to the question of drone-based policing, proposing basic regulations to prevent potential violations of constitutional rights.

The Fourth Amendment

The Fourth Amendment states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (U.S. Const. amend. IV.) This amendment has served as the backbone for privacy in the United States for well over a century, so courts have interpreted the amendment as a basis for balancing societal security with personal privacy. (See generally Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 193 (1890).) Thus, understanding Fourth Amendment jurisprudence is vital to addressing the question of drone-based policing.

One of the quintessential Fourth Amendment cases is Katz v. United States, because it was a critical step toward reinforcing the concept of individual privacy. (389 U.S. 347 (1967).) In Katz, Federal Bureau of Investigation (FBI) agents used a warrantless wiretap to record the defendant’s phone conversation in a public phone booth, and they used that evidence to convict him of interstate communication of betting information. (Id. at 348.) The US Supreme Court concluded on appeal that the FBI agents’ failure to obtain a warrant for the wiretap violated the Fourth Amendment. (Id. at 358–59.) While the phone booth was in public, the majority based its conclusion on the premise that the defendant expected his conversation would remain private. (Id. at 351.) Specifically, the Court said, “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” (Id. (citations omitted).)

Courts had used the Fourth Amendment to address privacy before, but the Court in Katz endorsed a blended approach, considering the party’s subjective expectation of privacy and the objective reasonableness of that expectation. (See id.) In so doing, the Court set a significant precedent for all Fourth Amendment cases, but especially those involving surveillance. (See id. at 358–59.) This precedent sets the stage for the drone-based policing debate. Katz is a shield, but only so long as public opinion continues to disfavor drone surveillance. As drones become more ubiquitous, courts may have to redefine “reasonable” expectations of privacy.

The plain view doctrine is a seasoned exception to the warrant requirement for law enforcement searches, and it has adapted over the years. (See, e.g., Harris v. United States, 390 U.S. 234, 236 (1968) (“It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.”).) One way the concept of “plain view” changed was in Texas v. Brown, when the Court allowed the concept to extend to a police officer using his flashlight. (460 U.S. 730, 739–40 (1983); see also United States v. Lee, 274 U.S. 559, 563 (1927) (concluding that the Coast Guard’s use of a searchlight did not diminish applicability of the plain view doctrine).) Flashlights may seem like a small update to the plain view doctrine, but the Court in Brown established a precedent that plain view can be assisted, and proponents of drone-based policing may use that as a stepping-stone. (See 460 U.S. at 744.) They will argue that the flashlight is a tool to help law enforcement officers see, and drone cameras are a similar tool; therefore, whatever police officers see through drones should not require a warrant or probable cause. (See id.) Therefore, while the plain view doctrine has not changed drastically before, drone-based policing would be an avenue for courts or legislators to push the doctrine’s boundaries.

Understanding the Fourth Amendment is vital because if courts determine drone activity can constitute a “search,” that amendment will serve as the backdrop for drone-based policing. One case where the Court used the Fourth Amendment to address newly developed technology was United States v. Jones. (132 S. Ct. 945 (2012).) There, the Court was tasked with applying the Fourth Amendment to GPS technology. (See id. at 948.) Justice Alito reasoned in his concurring opinion, “The availability and use of [GPS devices] and other new devices will continue to shape the average person’s expectations about the privacy of his or her daily movements.” (Id. at 963 (Alito, J., concurring).) Justice Alito recognized the (unwritten) most crucial part of the Fourth Amendment: its relevance to issues of privacy. (See id.) Anything that threatens to infringe on Americans’ privacy will face opposition from the Fourth Amendment. While drone-based policing would have undeniable positive effects, reduced privacy is the cost, so the Fourth Amendment must serve as an instrument for oversight.

Existing Jurisprudence

Dashboard cameras. Dashboard cameras (“dash cams”) were one of the first steps toward technologically advanced policing in the United States. These devices record video and audio of police encounters with the public. Police began installing the technology in their vehicles in the 1980s, due in part to help from Mothers Against Drunk Driving (MADD). (Int’l Ass’n of Chiefs of Police, The Impact of Video Evidence on Modern Policing 5 (2003).) Since that time, the technology has become more compact and law enforcement use of dash cams has become more common; by 2003, 72 percent of all state patrol vehicles in the US were equipped with dash cams. (Id. at 6.)

Society’s primary concern about dash cams was whether they would succeed in enhancing accountability (as promised). While society wanted dash cams in the 1980s for providing evidence of intoxicated drivers, the need for dash cams in the late 1990s was fueled by perceived racial bias. (Id. at 5.) Dash cams were succeeding at keeping civilians and criminals in check during the 1980s, but it was not clear if the cameras could serve the same purpose for police. (See id.) Some police had been using the technology prior to the 1980s, but support (figuratively and financially) for the technology increased when dash cams were seen as a potential solution to drunk driving and police misconduct. (See id.)

To help ensure accountability, police departments have policies ensuring that dash cam footage is available as evidence. Some states, such as North Carolina, have passed legislation clearly requiring the disclosure of dash cam footage in certain situations. The relevant section of North Carolina law specifically addresses footage from dash cams and body-mounted cameras (body cams). (N.C. Gen. Stat. § 132-1.4A(c) (2019).) The statute says this type of footage is not public record, but the public may access these records by petitioning the law enforcement agency that possesses the records. (Id.) Other states have adopted similar statutes in an effort to increase accountability for police officers. (See, e.g., Ohio Rev. Code Ann. § 149.43(H) (West 2019).) These statutes are excellent examples of state legislators addressing potential legal issues surrounding new police technology before such issues arise. They could serve as a model for legislators looking to proactively address drone-based policing.

Body cameras. Similar to dash cams in the late 1990s, body cams gained traction after public dissatisfaction with law enforcement based on reports of racial profiling. (See Amanda Ripley, A Big Test of Police Body Cameras Defies Expectations, N.Y. Times (Oct. 20, 2017).) However, unlike dash cams, body cams have only become prominent in the last five years. (See id.) Body cam footage is treated the same as dash cam footage in many jurisdictions: the footage is not openly available to the public, but it can be requested by those involved in the recorded incident. (See N.C. Gen. Stat. § 132-1.4A(c).) While body cams are better equipped to increase law enforcement accountability than dash cams, they are also more invasive than dash cams, causing concern among both the general public and the law enforcement community.

The most significant concern police had about body cams was the effect a camera may have on information disclosure. (Police Exec. Research Forum, Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned 19–20 (2014).) If people know they are being recorded, they may not feel comfortable disclosing sensitive information. Some police officers have already experienced this negative impact in action. (See id. at 20.) Lieutenant Harold Rankin of the Mesa Police Department in Arizona said, “We have definitely seen people being more reluctant to give information when they know that they are being videotaped.” (Id.) This disconnect between the police and the public is a critical issue, especially because of preexisting nationwide dissatisfaction with police.

Police departments across the country have taken a “community-oriented policing” approach to law enforcement since the 19th century, and many departments still adhere to that model. (See Michael D. Reisig, Community and Problem-Oriented Policing, 39 Crime & Just. 1, 10–11 (2010).) The concept of community-oriented policing is meant to create strong bonds between the community and the police, allowing them to work together to solve societal problems. (See id. at 11.) Community-oriented policing is already undermined constantly by recurring examples of excessive force and racial profiling by law enforcement across the nation. (See Shad E. Christman, Excessive Force Cases and Incidents of Deadly Police Force Ignite Possibilities for Change in Eighth Circuit § 1983 Law, 62 S.D. L. Rev. 418, 446–47 (2017).) If body cams discourage disclosure, then they are further degrading that policing model. Therefore, new police technology without clear action to counteract societal disconnect could make policing more difficult.

The disclosure concern has not hindered the proliferation of body cam technology. The New York Times reported, “By 2015, 95 percent of large police departments reported they were using body cameras or had committed to doing so in the near future.” (Ripley, supra.) However, there is no way to accurately determine how much information is withheld from law enforcement as a result of body cams. Body cam use has increased, but society still criticizes the technology’s negative effects. (See id.) Though the technology is widely accepted, body cams have likely led to information nondisclosure on some level.

The main legal concern surrounding body cams is how law enforcement and attorneys will use body cam footage. (See Kelly Freund, When Cameras Are Rolling: Privacy Implications of Body-Mounted Cameras on Police, 49 Colum. J.L. & Soc. Probs. 91, 112–15 (2015).) The Missouri Court of Appeals addressed this question in State v. Patrick. (566 S.W.3d 245, 250 (Mo. Ct. App. 2019).) The defendant in Patrick was convicted of domestic assault, and the case hinged on body cam evidence from an officer responding to a 911 call. (Id. at 248.) The appellate court reversed the conviction based on the district court’s decision to admit the body camera evidence. (Id. at 258.) The court reasoned, “[W]e are disturbed by the State’s post-trial isolation of certain body camera footage to support the State’s case while omitting context and footage favorable to Patrick.” (Id. at 251.) This case embodies one of the greatest risks posed by all law enforcement recording technology: footage taken out of context. Any evidence taken out of context can be fatal to the integrity of a criminal case, but body cam footage is also extremely persuasive. (Robert Ellis Smith, Sometimes, What Is Public Is Private, 59-FEB R.I. B.J. 33, 35 (2011).) As Patrick illustrates, if there are not adequate laws in place to govern the way body cam footage is used, it may be abused. (See 566 S.W.3d at 257.)

Aerial surveillance. The preexisting topic most compatible to drone-based policing is law enforcement use of manned aerial surveillance equipment because, like drones, helicopters and small planes can go places where dash cams and body cams cannot. The US Supreme Court heard two aerial surveillance cases in the late 1980s, concluding in both that warrantless aerial surveillance did not violate the Fourth Amendment. (See Florida v. Riley, 488 U.S. 445, 449–50 (1989) (holding warrantless aerial surveillance in a helicopter was not a search when officers flew 400 feet above a partially covered greenhouse because there was no physical invasion and the defendant had no reasonable expectation of privacy); California v. Ciraolo, 476 U.S. 207, 213 (1986) (holding warrantless aerial surveillance in a private plane was not a search when officers flew over the defendant’s backyard because the expectation of aerial privacy is unreasonable).) More recently, lower courts have continued to address cases concerning warrantless aerial surveillance, especially cases concerning helicopters. (See, e.g., State v. Davis, 360 P.3d 1161, 1166 (N.M. 2015).)

The main practical concern regarding helicopter aerial surveillance is where the helicopter is flying when the evidence is obtained. (See Riley, 488 U.S. at 445–46.) The Court in Riley emphasized that the helicopter was in navigable airspace when the police officer saw the defendant’s contraband. (Id.) Applying the Katz reasonable expectation of privacy test, the Court observed, “[T]here is nothing in the record or before us to suggest that helicopters flying at 400 feet are sufficiently rare in this country to lend substance to respondent’s claim that he reasonably anticipated that his greenhouse would not be subject to observation from that altitude.” (Id. at 451–52.) Furthermore, though the Court in Riley did not explicitly discuss the plain view doctrine, it emphasized that the officer in the helicopter saw the defendant’s contraband with his naked eye. (Id. at 448.) Thus, while the Court implied that surveillance without physical disturbance is usually permissible, courts may choose not to apply this case to drones because the officer in Riley had to see the contraband with his naked eye. (See id.)

The other significant prong to flight location is whether the helicopter physically trespasses on land. (See id. at 449–50.) The Court in Riley highlighted that the police officers were looking “from a public vantage point where [they had] a right to be,” and based its decision partially on that fact. (Id. (quoting California v. Ciraolo, 476 U.S. 207, 213 (1986)).) In a more recent case, the physical effect of a helicopter was the basis for reversing the lower court decision. (See State v. Davis, 360 P.3d 1161, 1169 (N.M. 2015).) In Davis, the New Mexico State Police used a helicopter to search for marijuana growing operations and spotted what looked like marijuana plants on the defendant’s property. (Id. at 1163.) They arrested the defendant for possession of a controlled substance, and he was subsequently convicted of that offense. (Id.) However, on appeal, the New Mexico Supreme Court overturned the conviction because the defendant’s neighbors testified to multiple incidents of property damage and other disturbances caused by the low-flying helicopter. (Id. at 1171.)

The court in Davis based its reasoning on both Riley and Katz. (Id. at 1172.) It distinguished the facts here from Riley and said the way the helicopter affected the neighborhood (and the defendant) violated the defendant’s expectation of privacy. (Id.) Aerial surveillance equipment that physically affects private property is an intrusion on the owner’s expectation of privacy and violates the Fourth Amendment. (See id.) In that regard, the applicability of aerial surveillance diverges from the question of drone-based policing because drones are designed to be physically unsubstantial.

Drones

Recent numbers and uses. The US Supreme Court has been silent regarding drone-based policing, but law enforcement agencies have already begun purchasing drones and using them. (See Dan Gettinger, Ctr. for the Study of the Drone at Bard Coll., Drones at Home: Public Safety Drones 2 (2017).) As of 2018, 599 law enforcement entities have acquired drones, and many of those entities are relatively small agencies. (Gettinger, Public Safety Drones: An Update, supra, at 1.) Some agencies have begun using drones for “photographing traffic crash scenes, monitoring correctional facilities, tracking prison escapees, crowd control and monitoring dangerous situations, among others.” (Amanda Essex, Nat’l Conference of State Legislatures, Taking Off: State Unmanned Aircraft Systems Policies 20 (2016).)

Law enforcement drone acquisition has not gone unnoticed. (See Gettinger, Drones at Home: Public Safety Drones, supra, at 5.) In Seattle and Los Angeles, public concern about diminished privacy forced the city police departments to scrap their drone programs. (Id.) In response to general privacy concerns, 18 states have passed legislation precluding law enforcement from using drones without a search warrant. (Essex, supra, at 14.) Additionally, Illinois and North Dakota have passed laws requiring that all drone footage be destroyed in a matter of days if it is not relevant to an investigation or evidence of a crime. (Id. at 22.) However, while some states are on the right track, Rhode Island is the only US state where no public safety agencies have drones. (Gettinger, Drones at Home: Public Safety Drones, supra, at 2.) Therefore, almost every state has at least one public safety agency with drones, but most have no relevant regulations in place.

Comprehensive look forward. The primary concern surrounding drone-based policing is the way drones will diminish privacy. (See Essex, supra, at 14.) If courts and legislators remain silent on drone-based policing and a court applies general aerial surveillance jurisprudence to drones, people lose the right to privacy in their homes and curtilage. (See Florida v. Riley, 488 U.S. 445, 449–50 (1989).) As long as there is no physical disturbance and the drone is in navigable airspace, a court could say the resident does not have a reasonable expectation of privacy. (See id.) The court in State v. Davis considered how that rule of law would affect society by stating that such a “holding would require individuals to roof their backyards and ‘encourage the transformation of our open society into a garrison state, [where] each individual [is] obsessed with shielding private activities in presumptively private areas from all possible observation.’” (360 P.3d 1161, 1181 (N.M. 2015) (alterations in original) (quoting People v. Cook, 710 P.2d 299, 305 (Cal. 1985)).) It may seem dramatic, but without guidance in the form of new legislation or opinions of the US Supreme Court, lower courts could equate drone surveillance with other aerial surveillance and shape future jurisprudence for the worse.

The other concern surrounding drone use is how long law enforcement will keep surveillance footage, and how police may use that data. (See Essex, supra, at 22.) The latter concern was especially prominent when body cams were first introduced, and some may argue it was validated by the lower court in State v. Patrick. (566 S.W.3d 245, 250 (Mo. Ct. App. 2019).) There, the district court allowed body cam footage as evidence in the court proceedings, that footage was taken out of context, and the defendant was convicted. (Id. at 251.) Fortunately, the Missouri Court of Appeals reversed the conviction based on the unacceptable use of body cam footage. (Id. at 258–59.) The district court allowing prejudicial footage in Patrick is not a typical situation, but drone surveillance could be just as persuasive in court as body cam footage, so evidence management is just as valid a concern with drone surveillance as with body cam footage. If drone-based policing takes off before clear lines are drawn by higher courts or the legislature, it could lead to more convictions being reversed because the evidence was not correctly utilized.

Despite potential privacy issues, drone-based policing does have potential benefits—for example, the reduced risk of physical harm to police officers plus the lack of human limitations. If a person goes missing, a drone can see as much as a search party would but would not get tired; the only limitation on a drone in that situation would be its battery life. That combination of quality and resilience could lead to more positive outcomes in missing person cases while preventing potential injury to members of a search party. However, mass depletion of privacy and uncertain legal outcomes are a high cost to pay for this benefit.

The most effective solution to these competing perspectives is to start instituting common-sense regulation before such problems arise. Regarding privacy, the federal government could follow in the footsteps of the 18 states that have already passed legislation denouncing warrantless drone searches. (See Essex, supra, at 14.) If law enforcement agents must procure a warrant before using a drone to surveil an area or person, the Katz reasonable expectation of privacy test becomes irrelevant. Police needing a warrant to use a drone resolves a significant aspect of Fourth Amendment concerns. Also, the states that have passed laws mandating warrants have allowed for the normal exceptions to warrants (like exigent circumstances) to apply with drones, too. (Id.) If the nation requires warrants for drone surveillance, opponents and proponents of drone-based policing would probably both be satisfied.

Regarding the retention of information, there are two clear solutions. The first option would be to replicate the policies Illinois and North Dakota implemented and require that drone surveillance data be destroyed within a certain number of days unless it is relevant to an investigation or affirmatively recognized by then to constitute likely evidence of a crime. (Id. at 22.) Universalizing a policy like this could serve as a quasi-statute of limitations for drone surveillance evidence, while also serving as oversight to preclude law enforcement from unethically compiling data on private citizens. The other option would be to codify rules of evidence that specifically apply to drone surveillance footage. Only rarely allowing drone surveillance evidence—or having strict parameters limiting its use—would reduce the opportunity for such evidence to be misused. If the federal government adopted one or both of these policies, it could significantly reduce the opportunity for drone surveillance to soil the integrity of court proceedings.

Conclusion

Drone-based policing is slowly evolving from a futuristic fantasy to reality. While there are clear benefits to this technology, it threatens to completely change the concept of privacy in America. Some states have begun to regulate law enforcement drones, which is a step in the right direction, but the federal government must pass laws on the topic or the US Supreme Court must weigh in on this issue. If the federal government does not spearhead the regulation effort, drone-based policing litigation will be fragmented across the nation. The number of law enforcement agencies with drones will continue to grow; if strong drone regulation does not follow, this country will be mired in incongruent case law and US citizens could be regularly subjected to dystopian invasions of privacy.

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Michael dePascale Jr.

Michael dePascale Jr. is a student at Roger Williams University School of Law and the 2019 winner of the William W. Greenhalgh Student Writing Competition. He would like to thank Dr. Justin Kishbaugh for mentoring him in the preparation of this article.