As recreational drone use increases, hobbyists won’t be the only ones flying them. Reports show that law enforcement agents are looking forward to adopting drones to their apparatus. As stated by these reports, drones will enable law enforcement a bird’s-eye view of major car crashes, active wildfires, and wreckage as a result of tornadoes and hurricanes.
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However, will the use of drones in other perspectives contravene the Fourth Amendment?
Law enforcement’s usage of drones to inspect real property would override the Fourth Amendment’s proscription on irrational searches and seizures. It is pertinent to ascertain whether the use of drones is a “search” within the import of the Fourth Amendment. If the use of drones amounts to a “search,” then the government needs to obtain a warrant to examine someone’s property.
The use of drones to examine someone’s property will be a search within the import of the Fourth Amendment if the property owner shows a subjective expectation of privacy in the area examined and if society views that expectation of privacy as reasonable.
There are a number of good general rules to consider when thinking about the second prong—whether one has a logical expectation of privacy. The Supreme Court has accentuated that constitutional protections are paramount inside the home itself.
On the other hand, the Court examines four factors to decide whether an inspection of the area outside the home, like a yard, porch, or deck, constitutes a search. Those factors include a) the distance from the home, b) whether an area is enclosed by a fence, c) whether the area is used for intimate activities of the home, and d) whether the property owner has taken steps to protect the area from observation by people passing by.
Property owners have a justifiable concern that law enforcement may exceed its bounds by using drones because law enforcement officials have previously used cutting-edge technology in a way that infringe people’s constitutional rights.
In the 2001 Supreme Court case Kyllo v. United States, law enforcement, without a warrant, used thermal cameras to detect strange heat patterns inside Danny Kyllo’s home. Based on the strange heat patterns, law enforcement obtained a search warrant to search Kyllo’s home; it was discovered that he was growing over 100 marijuana plants inside his home.
In that case, the Court held that the use of thermal cameras to examine heat inside someone’s home required a search warrant. Justice Antonin Scalia, who authored Kyllo, concluded that “[w]here [ . . . ] the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.” Because the use of the thermal cameras intruded upon a constitutionally protected area—the home—the Court held that there was an unconstitutional search.
In a similar fashion to the thermal cameras used in Kyllo, drones may encroach upon a person’s privacy. For example, drones may perhaps be used to scrutinize the contents of someone’s backyard.
As of now, there is no clear response as to the question whether the use of a drone to examine someone’s property would necessitate a warrant.
Based on the reports that law enforcement will begin using drones in their operations, it seems likely (if not certain) that there eventually will be constitutional challenges brought to drone use by law enforcement. When judges face questions regarding law enforcement drone use over the home, they must keep one principle in mind that Fourth Amendment protection is highest in one’s own home. As Justice Scalia explained in Kyllo, “In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes.” Thus, a physical invasion of the home, “by even a fraction of an inch,” requires a warrant. Accordingly, judges should be skeptical of law enforcement’s use of drones when they might infringe on Fourth Amendment protections.