I recently participated in a WFAE radio show about law enforcement use of drones, along with a captain from the Winston-Salem Police Department and an advocate from the ACLU. I thought the discussion was excellent, with a nice balance of perspectives. In the course of preparing for the program, I did an environmental scan about how law enforcement officers are currently using drones, and looked for court opinions about some of the legal questions presented by drone use. This post summarizes what I learned before and during the show.
Lots of agencies are using drones. I’m not aware of current comprehensive data on this point but I suspect that hundreds of North Carolina law enforcement agencies have active drone programs. My sense is that most of our larger agencies, and some of the smaller ones, use drones at least occasionally. The use of drones in Winston-Salem was discussed extensively on the show. Mooresville reportedly has contracted with Flock (the company famous for making license plate readers) to supply two drones. CMPD recently issued a Request for Proposals seeking a vendor to provide drones that may be used for “rapid deployment in emergency situations, surveillance, search and rescue, traffic management, and crime scene monitoring.” More programs are mentioned below in connection with the specific purposes for which officers use drones.
Drones have proven useful. Media coverage of law enforcement drone programs highlights several potential public safety benefits to deploying drones:
- Catching fleeing suspects. Drones can provide a bird’s eye view of a suspect’s path, making it less likely that the suspect will succeed in evading officers by going into buildings, through crowds, or over fences. For example, according to this article, officers in Monroe officers used a drone to pursue and apprehend a violent offender who had fled into a wooded area.
- Finding missing persons. Similarly, drones can help law enforcement locate children or adults who have wandered off or gone missing. Drones can move quickly and aren’t limited by ground-based obstacles. Therefore, they can cover large areas. Cameras are standard equipment and some drones also have infrared technology, loudspeakers, and other tools that can be used to help locate individuals and bring them to safety. For example, according to this article, the Davidson County Sheriff’s Office used a drone to locate a missing 3-year-old who had wandered into a forest full of lakes and ponds. And this article reports that the Brunswick County Sheriff’s Office used drones to locate a hunter who was lost in the woods and guide officers to him.
- Emergency response and recovery. Drones may be used to assess storm damage, find stranded people or pets, distribute information, and provide other valuable services in connection with emergencies. This article highlights some of these applications.
- Public gatherings and events. This article discusses how the UNC Police Department used drones during a busy running race to help guide EMTs to people in need of medical care. This article highlights the use of drones for crowd control and event security in Winston-Salem. The use of drones at protests, demonstrations, and political events can be valuable from a public safety standpoint but also can make participants uneasy and may therefore raise concerns about freedom of expression. For that reason, the ACLU is seeking limits on how drones may be deployed at public events.
- Promoting officer safety. According to this article, Burlington has had drones since 2019, and uses them to execute search warrants and to apprehend suspects. Drones can provide crucial situational awareness to officers, including whether a suspect is armed; whether a suspect is alone; and what kinds of obstacles or tactical considerations may be present at a scene. For example, this article last week in the Charlotte Observer reports on an incident in which officers shot a man who then retreated into his residence. Officers subsequently used a drone to determine whether the man continued to pose a threat before entering. (He did not; the gunshots proved fatal. The story raises the question whether waiting for the drone caused officers to delay too long in rendering aid to the decedent.)
- Drones as first responders. Somewhat related to the foregoing, agencies are increasingly using drones as first responders. For example, according to this article, in Scottsdale, Arizona, “drones can reach any destination in their boundary areas within 85 seconds” and “the drone’s live stream is instantly sent to responding officers.” In Winston-Salem, drones are docked on three rooftops around the city, and are able to reach about half of the city within two minutes of launch. Burlington, too, is reportedly moving towards using drones as first responders.
(Law enforcement) drones are expensive. Media accounts state that Mooresville’s contract with Flock costs more than $300,000 per year. Reporting on Burlington’s drones puts the price tag at about $50,000 each. Burlington apparently used asset forfeiture funds to purchase them. Other stories about other agencies put the per-unit cost lower, but most agencies are using drones made and marketed specifically for law enforcement, often by law-enforcement-facing companies like Axon, not hobbyist drones that can be bought at Best Buy for a few hundred dollars each.
Drones come with legal issues. Some of them are technical in nature. Pilots using drones for other than recreational purposes must have training specified by federal law. Normally, accredited pilots may fly drones only where they can see them, but the FAA has the authority to allow an agency to fly drones BVLOS (Beyond the pilot’s Visual Line of Sight). Obviously, obtaining such authorization is vital to any drones-as-first-responders program. This article describes the Asheville Police Department’s successful effort to secure BVLOS permission from the FAA.
Other legal questions arise under G.S. 15A-300.1, our state statute that limits both private and governmental use of drones. The statute generally prohibits the use of drones to conduct “surveillance” of people or private property. But it doesn’t define “surveillance,” and it is not clear whether, say, a single overflight of private property to look for drugs or stolen property amounts to “surveillance.” Furthermore, there is an exception allowing law enforcement to conduct drone surveillance pursuant to a warrant, yet the statute offers no detail about how such warrants would work. Is there any limit on the duration of surveillance that a warrant may authorize? Serving a warrant for drone surveillance on the target prior to execution would seem to defeat the purpose of the warrant, but the statute is silent regarding how or whether the service requirement may be excused.
Finally, some legal issues arise under the Fourth Amendment. The big picture question is whether law enforcement flying drones over the curtilage of residential property is ever a “search.” As I discussed in this prior post, the Supreme Court of the United States has ruled that briefly flying over private property in an airplane or a helicopter in public navigable airspace is not a search. See California v. Ciraolo, 476 U.S. 207 (1986) (planes); Florida v. Riley, 488 U.S. 445 (1989) (helicopters). But drones can fly lower and more quietly, and can hover over a property for as long as their batteries hold out. We have no cases from the North Carolina appellate courts addressing whether drone overflights are searches, perhaps because of the statutory limits on warrantless drone use. Careful agency policies limiting drone use may also help agencies avoid constitutional concerns. Outside of our court system, I am aware of a handful of cases that have begun to explore these issues, including:
- Long Lake Twp. v. Maxon, 970 N.W.2d 893 (Mich. Ct. App. 2021) (concluding that low-altitude remotely operated drone surveillance is a search because it violates a reasonable expectation of privacy and does not fall under the plain view exception set out in Ciraolo and Riley), vacated on other grounds, 2024 WL 1960615 (Mich. May 3, 2024)
- Dircks v. Barnes, 2023 WL 4761662 (S.D. Ind. Jul. 26, 2023) (unpublished) (granting qualified immunity to public officials who used drone to surveil property of citizens suspected of endangering their small children and stating that there are “no bright-line rules about drone use under the Fourth Amendment”)
- State v. Stevens, 210 N.E.3d 1154 (Ohio Ct. App. 2023) (police flew a drone 300-400 feet over the defendant’s property and located a vehicle that had been involved in a serious crash; the court ruled that the car was found in an open field, not the curtilage, so no reasonable expectation of privacy was infringed)
- Matter of United States, 637 F.Supp.3d 343 (E.D.N.C. 2022) (a federal magistrate judge opines that the government can’t use the All Writs Act to get permission to conduct drone surveillance and must use a search warrant because serious Fourth Amendment concerns are implicated)
If readers are aware of additional cases to add to this list, please let me know.
Further reading. If this hasn’t been enough drone talk for you, and if you’ve already listened to the radio show, you may be interested in the following:
- The NC Sheriffs’ Association issued a 2022 publication about drones addressing state and federal licensing requirements, the differential treatment of drones that weigh more than 55 pounds, and other considerations of interest to agencies using drones.
- This CRS Report explores the use of drones by federal law enforcement agencies.
- This NCSL legislation tracker finds that at least 44 states have passed laws regulating the use of drones in various ways.
- For a deeper dive into the states’ various approaches, this older law review article looks as several aspects of different statutes. My quick impression is that North Carolina’s warrant-with-exceptions approach seems to be fairly typical.