TO: Professor Ygnacio Flores

FROM: Sean Kearney

DATE: June 15, 2019

SUBJECT: A Leadership Dilemma: Contemporary Use of Law Enforcement Drones

Background

In a scenario which we will assume occurs in a large city in California, a detective is

contemplating using a personally-owned UAS1 to investigate a tip of possible drug activity on a

sizable residential property. Clearly, aerial surveillance using today’s UAS technology would

greatly assist in gathering evidence; however, there are several relevant leadership

considerations.

Discussion

Currently, there is no case law directly pertaining to using modern UAS technology to

gather evidence from a location in which a suspect may have a reasonable expectation of

privacy. Numerous cases involving aerial curtilage have held that law enforcement officers may

gather photographic evidence from traditional aerial platforms at altitudes as low as 400 feet,

assuming that they do so without violating flight rules, operating the aircraft in a “physically

intrusive” manner, or using visual enhancement technology not generally available to the public 2.

Consequently, at this time the detective’s proposed gathering of evidence employing aerial

overflight should survive a challenge based upon stare decisis.

1 Unmanned Aerial System, commonly known as “drones”

2 California Peace Officers’ Legal Sourcebook regarding Aerial Flight in LEPS 530 Presentation 4 (2019)

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 However, Professor Begovich makes salient points3 regarding recent Supreme Court

cases where today’s technology has affected the outcome of cases such as Grady4. Begovitch

notes, "…most recently, the way the wind is blowing with the Supreme Court is, if you don't

have exigent circumstances… get a warrant. 5” In this scenario, there are insufficient facts at this

time to support a search warrant and no exigency exists; therefore, further investigation is needed

to make closer observations on the property.

Although “thinking outside the box” may seem tempting, there are several additional

considerations. Professor Schwartz reports that deployment of UAS equipment by law

enforcement is inherently controversial, and an agency must get the buy-in of the public and

elected officials using a cogent policy, training, and levels of accountability 6 in order to properly

deploy these devices. Allowing the detective to proceed in a highly irregular manner could have

disastrous public relations consequences and could also be just the case that the Supreme Court

is looking to hear to clarify its stance on UAS operations by law enforcement.

Conclusion

While the initiative and creative thinking of this detective is commendable, the potential

costs of allowing the investigation to proceed with an unauthorized UAS and with other

reasonable alternatives available are unacceptable. If accessible, investigating using a

Department or mutual aid agency UAS under established policies, conventional air assets, or

more traditional surveillance techniques should be utilized to preserve the integrity of the

investigation as well as the ethical framework of the agency. With strong leadership and sound

3 LEPS 530 Presentation 4 (2019)

4 Grady v. North Carolina 135 U.S. 136 (2015) and State v. Grady 817 S.E.2d 18 (2018)
5 LEPS 530 Presentation 4 (2019)
6 Ibid.

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judgment, this dilemma and others will be satisfactorily resolved as we accomplish the public

safety mission.