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Drones and the Fourth Amendment

by Aaron Herrington

This post is part of the student blogger project from the summer session of Space Security Law.

Aaron Herrington is a rising 2L at the University of Mississippi. He is currently pursuing a Certificate in Remote Sensing, Air, and Space Law.

Currently the primary method of aerial surveillance employed by the average police station is a Bell Model 206 Helicopter costs on average a minimum of $875,000 capable of only 4.5 hours of flight, requires 2 crew members, and on average costs $500 per hour to operate.1 Whereas any individual, including the private citizen may for an average cost of $35,000 purchase a MLB Company’s BAT-4. The Bat-4 is a portable unmanned aerial vehicle (UAV) capable of high resolution imagery with 25x magnification, up to 12 hours of flight time, and weighs only 55 to 100 pounds.2 For the price of one standard helicopter, police departments could employ 40 Bat-4 UAVs. The use of UAVs would give police departments virtually unlimited real-time monitoring. UAVs would eliminate the need for high-speed pursuits, allow for constant monitoring of high-crime areas, and even allow for monitoring of a location until enough evidence for a warrant is obtained.

UAV surveillance consists of both remote sensing and aerial observation, both of which have previously been discussed in the context of the Fourth Amendment. Remote sensing is categorized one of two ways in the context of the Fourth Amendment, either “open Fields” or “curtilage.” Open fields consist of public areas and private property that, “do not provide the setting for those interment activities that the Fourth Amendment is intended to shelter from government interference [or] surveillance.”3 Curtilage is an area surrounding a home, determined by four factors: the proximity of the area claimed to be cartilage, whether the area is included with an enclosure, the uses to which the area is put, and the steps taken to protect the area from observation of an individual passing by.4 Therefore, surveillance of an area by remote sensing will not fall under the protection of the Fourth Amendment if it is done from a point where an individual passing by may make observations.

A number of cases have developed the law applied to Fourth Amendment cases involving aerial observation. Essentially, aerial observation, regardless of method, of private or commercial property from any aircraft legally in navigable airspace is not a search as described under the Fourth Amendment.

To tie this back into the initial discussion of police employment of UAVs rather than standard surveillance technology, it would seem rather simple to employ the use of UAVs for aerial observation. The Federal Aviation Administration (FAA) has taken steps to regulate the use of UAVS, requiring that no person may operate an UAV in the National Airspace System without specific authority under one of three modes of operation: amateur, public, or civil. No police agency can argue that a UAV is an amateur model aircraft, which just happens to have a powerful camera capable of 25x magnification attached. The preferred manner for a police agency to employ UAVs in operation would be to operate them as public aircrafts and apply for a COA (a waiver from the FAA which would allow an operation which would otherwise be a violation of the Federal Aviation Regulations). The other manner in which a UAV may be employed is with an experimental aircraft certification. That is, if typically built by amateurs or non-standard manufacturers, or prototypes, it will receive permission for essentially experimental flight testing. COAs are preferred to experimental aircraft certifications because COAs apply to all aircraft types with an area, whereas experimental aircraft certifications are specific to one model aircraft.

Overall, while the employment of UAVs by law enforcement agencies seems as if it would be simple both under current Fourth Amendment jurisprudence and fiscally, due to FAA regulations the use of UAV surveillance is currently overly burdensome. That being said, as technology advances and becomes more readily available it is likely that regulations regarding UAVs may become more lax, making it easier for law enforcement to employ them, and if that happens then “Big Brother” will truly be watching.5
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1 Bell Helicopter, http://www.bellhelicopter.com/en_US/Commercial/Commercial.html (Last visited July 10, 2012).
2 The MLB Company, http://spyplanes.com/pages_new/products.htm (follow “Bat 4”
hyperink to find downloadable PDF file) (last visited July 10, 2012).
3 Oliver v. U.S., 466 U.S. 170, 179 (1984).
4 U.S. v. Dunn, 480 U.S. 294, 301 (1987).
5 Jared Roy Endicott, Domestic Drones and the Fourth Amendment, http://jared.realizingresonance.com/2012/06/19/domestic-drones-and-the-fourth-amendment. (Last Visited July 10, 2012).