Update on Drones

I wrote about law enforcement use of drones here, and a little bit here. It is now easier than before for law enforcement agencies to acquire drones, and some agencies have done so. But courts have yet to engage with the Fourth Amendment issues that some uses of drones may present. This post provides an update on where things stand with law enforcement use of drones.

More agencies are acquiring and using drones. This new report from the Center for the Study of the Drone states that “at least 347 state and local police, sheriff, fire, and emergency units have acquired drones in the past several years [including at least eight in North Carolina]. More acquisitions took place in 2016 than in the previous years combined.” Most agencies are using widely available DJI drones rather than specialized models marketed specifically for public safety purposes.

Why do agencies want drones? This local article explains that the Moore County Sheriff’s Office recently acquired a drone “to assess high-risk situations involving active shooters, hostages and explosive devices” and to “help authorities with common tasks such as crime scene photography and crowd monitoring.”

Agencies no longer need approval from the state CIO to acquire and use drones. When I wrote about drones previously, the General Assembly had prohibited state and local government entities from procuring or using drones without prior approval from the state’s chief information officer (CIO). That pre-approval requirement was tweaked slightly by S.L. 2015-232 and ultimately expired on December 1, 2015.

Agencies must satisfy state/federal permitting requirements to fly drones. Although a law enforcement agency may now send an officer to the local Best Buy to purchase a drone, before a government employee may launch the drone, he or she must pass a “knowledge test for operating an unmanned aircraft system” devised by the Division of Aviation of the Department of Transportation. G.S. 63-95. At the federal level, the FAA also requires that an operator have a certificate of authorization or a so-called “Part 107 remote pilot certificate,” as discussed here.

As an aside about the FAA, readers may recall that the agency had planned to require registration for virtually all drones — even for hobbyists — but the registration requirement was struck down by the D.C. Circuit in Taylor v. Huerta, 856 F.3d 1089 (D.C. Cir. 2017) (“The 2012 FAA Modernization and Reform Act provides that the FAA ‘may not promulgate any rule or regulation regarding a model aircraft,’ yet the FAA’s 2015 Registration Rule is a ‘rule or regulation regarding a model aircraft.’”).

G.S. 15A-300.1 places statutory limits on agencies’ use of drones. G.S. 15A-300.1 places certain limits on law enforcement use of drones for surveillance purposes. In a nutshell, drone surveillance is prohibited without a warrant or exigent circumstances, unless the drone is surveilling an area in an officer’s plain view. If anyone has had a case involving a drone warrant, I would be interested to hear about it.

We are still waiting for courts to engage with the Fourth Amendment issues that drones present. There may be more law review articles about drones and the Fourth Amendment than there are law enforcement drones in the sky. Right now, legal speculation is about all that there is, since as far as I can tell, there aren’t any published appellate opinions directly addressing drones. There are, of course, many cases involving law enforcement helicopters, most of which find no Fourth Amendment problem with overflights. An intersting recent exception is State v. Davis, 360 P.3d 1161 (N.M. 2015) (finding a Fourth Amendment violation when police helicopters hovered low over suspects’ houses, stirring up dust and debris, causing property damage, and disturbing residents; “when low-flying aerial activity leads to more than just observation and actually causes an unreasonable intrusion on the ground—most commonly from an unreasonable amount of wind, dust, broken objects, noise, and sheer panic—then at some point courts are compelled to step in and require a warrant before law enforcement engages in such activity”).

And one more thing . . . no drones near prisons and jails. Admittedly, this point isn’t about law enforcement use of drones. But no drone update would be complete without mentioning S.L. 2017-179, which adds new G.S. 15A-300.3, making it a crime to operate a drone “within either a horizontal distance of 500 feet, or a vertical distance of 250 feet from any local confinement facility . . . or State or federal correctional facility,” subject to certain exceptions. The offense normally is a misdemeanor, but if the drone operator attempts to deliver weapons or contraband using the drone, it is a felony.