WRAL recently reported that “the Johnston County Sheriff’s Office . . . flew a drone over [private] property . . . to locate [stolen construction] equipment.” According to the story, the overflight may have been conducted without a warrant as “[t]here was no . . . warrant on file at the Johnston County Courthouse.” Can they do that?
Caveats. There is a lot that we don’t know. The story might be inaccurate or incomplete. There may have been a warrant in Johnston County that was sealed or overlooked. There may have been a warrant in another county, signed by a judicial official with statewide jurisdiction. There may have been exigent circumstances not described in the story. So for purposes of this blog post, let’s not focus on the details of the particular case in question. Instead, let’s ask a more general legal question: absent exigent circumstances, may a law enforcement agency conduct a drone overflight of private property without a warrant?
Constitutional considerations. I wrote about the Fourth Amendment limits on drone use in a prior post:
[A]ny law enforcement activity involving drones must comply with the Fourth Amendment. However, it is far from clear how the Fourth Amendment applies to drones. Will they be governed by the precedents concerning aircraft flyovers, like California v. Ciraolo, 476 U.S. 207 (1986), which generally allow considerable leeway to law enforcement? Does the increasing prevalence of hobbyists’ drones mean that there can be no reasonable expectation of privacy from drones? Or does the existence of inexpensive drones present a novel Fourth Amendment concern that will require a novel doctrine to address it, as the Supreme Court arguably charted new courses regarding GPS tracking in United States v. Jones . . . and regarding cell phone searches incident to arrest in Riley v. California . . . ?
I wrote that post in 2015, and despite the increasing frequency with which law enforcement agencies are using drones, I’m still not aware of a single case ruling on how the Fourth Amendment applies to drones.
One specific point of controversy may be the concept of “navigable airspace.” The court cases on plane and helicopter overflights generally say that so long as an aircraft is in “navigable airspace,” it isn’t infringing on anyone’s reasonable expectation of privacy. But the concept of “navigable airspace” lacks a bright line definition. Under 49 U.S.C. § 40102(32), it encompasses “airspace above the minimum altitudes of flight prescribed by [federal] regulations . . . including airspace needed to ensure safety in the takeoff and landing of aircraft.” Even experts in the field aren’t always sure how high that is. One lawyer opines that “navigable airspace boundaries are unclear below 500 feet, the minimum safe altitude for flight in non-congested areas.”
The situation is even hazier as to drones specifically, because drones are not subject to any minimum altitude of flight. They are often operated only a few dozen feet up. In fact, FAA regulations mostly prohibit them from flying above 400 feet. This calls into question whether the concept of navigable airspace retains any meaning for drones, as noted here and here.
For all these reasons, it is impossible to say what limits the Fourth Amendment puts on drone flights. The lower the flight, the greater the intrusion, but we just don’t know how low is too low.
Statutory considerations. Things are a bit clearer on the statutory side. In 2014, the legislature enacted G.S. 15A-300.1, entitled “restrictions on use of unmanned aircraft systems.” The statute generally prohibits anyone from “conduct[ing] surveillance” of a person, an occupied dwelling or its curtilage, or private property, without consent. It contains several exceptions for law enforcement, including surveillance with a warrant, under exigent circumstances, or of “gatherings to which the general public is invited.” It also allows an officer operating a drone “[t]o conduct surveillance in an area that is within a law enforcement officer’s plain view when the officer is in a location the officer has a legal right to be.” It includes a suppression remedy and creates a civil cause of action in case of violations.
This statute indicates that, as a general matter, warrantless drone surveillance is impermissible. Still, I can imagine at least two arguments that the state, or a law enforcement agency, could make regarding a drone overflight like the one described at the beginning of this post.
The first is that a brief, one-time flyover is not “surveillance” and so is not covered by the statute at all. A dictionary definition of “surveillance” is “continuous observation of a place, person, group or ongoing activity in order to gather information.” Is a drone overflight “continuous”? It certainly is nothing like the hours or days of visual surveillance that officers sometimes conduct in drug investigations. But in far different contexts, some courts have found that there is no fixed minimum length of time before presence and observation becomes “surveillance.” See, e.g., People v. Curtis, 820 N.E.2d 1116 (Ill. Ct. App. 2004) (holding, in a case in which the defendant was convicted of stalking by surveillance, that “there was no minimum period of time that defendant was required to remain present outside [the victim’s] car . . . in order for his actions to constitute surveillance”).
The second argument would be that the statutory plain view exception applies. This argument would depend on where the drone operator was located and what he or she could see, but suppose that the operator could see part of the parcel in question from his or her vantage point. Would that be enough to render the entire parcel part of the “area” that is within the officer’s plain view? That seems like a stretch to me, but the more the operator is able to see the more feasible the argument may become.
A related question, not raised by this case as far as I know, is whether an officer could fly a drone up over public land (or private land with the owner’s consent) and look from there onto adjoining private property. I don’t think the Fourth Amendment would prohibit that, as the plain view doctrine would apply: the drone would be in a place that it had a right to be. But under the statute as written, I think such activity would be impermissible if it amounted to “surveillance” as described above.
Further reading. If you can’t get enough drone law, check out my prior posts here, here, and here. There’s also a helpful recent law review article that addresses both law enforcement drones and drones operated by public code enforcement agencies. See Gregory S. McNeal et al., Warrantless Operations of Public Use Drones: Considerations for Government Agencies, 44 Fordham Urb. L. J. 703 (2017).
I’d say we can’t use a drone without a warrant to see anywhere we can’t see unaided, as a general rule. If there’s a 6 foot privacy fence and police fly a drone over it, even one time, my belief is that’s the same as climbing the fence and trespassing to see what’s back there
Well, after reading this, I can come up with other examples of how LE can “fly” over private property, like marijuana eradication flights by the SHP or National Guard. These pilots have been flying over public and private land for years and there have been a lot of arrest made. How many of these people have made this argument? I believe the drone is just an extension of the plane or helicopter. The difference, there are more drones than helicopters.
the drone is no different than an officer coming on the property. they can fly very low. they can fly at 5 or 6 ft.
if a drone invades my yard its a trespasser. can I shoot it? can the police lower an officer by crane over my yard ? I don’t think so.
There is no expectation of privacy from the air.
Most people do expect privacy in their own yards and home any point below 500ft, especially by hovering drones at low altitudes. The idea that you can see the earth from an orbiting satellite, is not the same as being able to see into soemone’s window using a drone hovering the same height as my window.
Under this logic Mr. Peep N. Tommy while jumping up and down in a backyard while peering into your bathroom with a camera does not invade privacy, while he is in the air…but does when he is on the ground. I would expect privacy while Mr. Peep N Tom is off or on the ground.
The General Assembly may want to amend NC GS 15A-300.1 as I see a few problems with the language in the statute. Although the state is certainly free to provide the citizens with statutory rights that exceed the rights provided under the 4th amendment, it makes little sense here. If this stolen property was located outside the curtilage, the police would be free to walk all over private property to locate and recover the stolen property without a warrant. Under NC GS 15A-300.1, a strict interpretation of the statute could render the use of a drone over private property that has no 4th amendment protection to be unlawful and potentially result in suppressed evidence. Why exclude the use of a drone over private property when the legal alternative is to physically trespass on the land to conduct the search? There may be features of the terrain that would be dangerous for a law enforcement officer to physically walk on particularly at night and thus the use of the drone to confirm the presence of illegal items before deciding to make the trip would be beneficial.
For the record, I believe a valid argument could made that a one time fly over is not surveillance and I also believe the plain view exception found in the statute could be interpreted very liberally.
It is amazing that both the drone industry, and misguided drone enthusiasts, believe their ability to hover in low-altitude space has somehow usurped centuries of jurisprudence and property laws. Terrestrial laws for gravity-content humans should not be suspended due to technological advancement.
Since private property extends up to 365 ft [see Causby v US court of claims(1937)], police surveillance above 365 ft is already legal. Obtaining a warrant BEFORE entering someone’s property (which includes the space below 365ft remains protocol whether police enter by foot, car or drone. Getting a warrant should remain the law.
I the judge in this case is wise enough to have read and understood Orwell’s warnings.