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Running head: Drones

Drones

Student Raymond Garcia

University of San Diego: Professional & Continuing Education

Critical Issues in Law Enforcement & Public Safety LEPS-530-01-SP16

Professor Michael Begovich

February 6, 2016
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Running head: Drones

The recent use of unmanned aerial aircraft in law enforcement applications, has lead

to controversy regarding violations of the 4th Amendment Right to Expectation of Privacy. As a

stake holder of this organization, it would be in the best interest of management to explore

the possibilities that unmanned aerial aircraft or drones can be used for investigative

purposes, with limitations and under reasonable standards. With the application in the form of

a written policy and the guidance of recent court decisions, this organization will be able to

effectively use unmanned aerial aircraft, while staying within the parameters of the 4th

Amendment. Recently I received information pertaining to possible narcotics activity occurring at

a specific location. The use of a drone was a possibility, for these reasons. It is covert, second

it is economical and third it can be used within the confines of the 4th Amendment if used

under careful safe guards. The following is the instance where a drone could have been used

to verify the existence of illegal activity.

My investigation was initiated with a tip originating from Crime Stoppers. It provided information

that vehicles were being driven frequently onto a residence between 2:00 am 4:00 am. After

checking the location, I saw that the property was surrounded by a white PVC fence that is 8

feet tall and covers the entire two acres. I also spoke to the informant who identified himself

as a retired DEA agent. From his training and experience, he believed that narcotics activity was

taking place at the location. In specific, the informant believed that marijuana was being grown

on the property.

I decided not to use a drone to do an overflight because we do not have a policy in place.

Our organization maintains its paramilitary structure through the implantation of policies and
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procedures. Without a policy, there are no set parameters in writing that disclose what an

unmanned aerial aircraft can be used for and what it cannot be used for. These parameters

should indicate what type of operation, equipment and what type of training would be needed

to operate this piece of equipment. It should also address a procedure for retention of aerial

footage.

The following case laws can aid in the development of a policy that will adhere to the 4th

Amendment. Grady V. North Carolina ruled that an individuals expectation of privacy in these

type of matters prohibits unreasonableness searches. It summarizes that the use of drones be

applied to the totality of the circumstances. In Katz V. United States, the court ruled that the

4th Amendment protects people and not property. There is also a Subjective expectation of

privacy if a person demonstrates actions designed to protect their privacy. Using the Open

fields doctrine, outside the curtilage of the residence would have been another viable option for

viewing the contents on the grounds because of the lack of a reasonable expectation of privacy.

An example of this instance is cited in California V. Ciarolo.

In California V. Ciarolo, warrantless searches by aerial observation of a fenced backyard within

the curtilage of the property was reasonable under the 4th Amendment. The expectation of

privacy from air surveillance considered the location of the observed areas. In Kyllo V.

United States, the court ruled that sense enhancing technology to gather information regarding

the interior of the home which could not be obtained without an intrusion into a

constitutionally protected area. Finally using an overflight such a plane or helicopter over a given

area, could be used as a standard for drones, due to the lack of a reasonable expectation of

privacy in an area that can be viewed from an overflight. The protections of the Fourth

Amendment do not apply, if the aircraft is at an altitude permitted by FAA regulations being
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operated in a physically nonintrusive manner.

In conclusion, I have made the following recommendations to urge the development of a policy

on unmanned aerial aircraft and provided recent case laws to distinguish what the parameters

should address. By following the most cautious parameters based off of recent case laws and

the 4th Amendment, the organization could avoid legal technicalities and civil liabilities. The use

of drones should be only allowed in incidents regarding exigent circumstances and for criminal

investigations which have produced a search warrant authorizing its use. The use of drones

should adhere ethically to all provisions regarding 4th Amendment search and seizure like any

other search, even if there is no law preventing its use.

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References

The New Privacy Battle: Chris Schlag(2013). The New Privacy Battle: How The Expanding Use of Drones
Continues to Erode Our Concept of Privacy. 2015 Thomson Reuters. No claim to original U.S.
Government Works.

Grady V. North Carolina(2015). Grady v. North Carolina, 135 S.Ct. 1368 (2015)83 USLW 3758, 83 USLW
4226, 15 Cal. Daily Op. Serv. 3069. 2015 Thomson Reuters. No claim to original U.S. Government
Works. 1135 S.Ct. 1368 Supreme Court of the United States Torrey Dale GRADY v. NORTH CAROLINA.

Unchecked Government Drones? Not Over My Backyard (March 24,2015). Neema Singh Guliani ACLU
Legislative Counsel. Retrieved from: https://www.aclu.org/blog/unchecked-government-drones-not-
over-my-backyard