LOS ANGELES CRIMINAL DEFENSE ATTORNEY
In a recent blog article, I explored the legality of K-9 sniffs. In that article, I concluded that despite the Court's permission of the practice, the Fourth Amendment would consider K-9 sniffs a search. Further, I urged that allowing law enforcement to sidestep the Fourth Amendment and the Court's ruling in Kyllo v. United States could have further-reaching effects on our privacy rights than we might think. 533 U.S. 27 (2001).
In Kyllo, the Court held that law enforcement's use of infrared technology to detect illegal marijuana grow operations constituted a search and requires a search warrant. The technology does not enter a building, but allows law enforcement to detect the lights used to grow marijuana. Similarly, a K-9 sniff allows law enforcement to detect the presence of contraband in a building or vehicle. When police lack the probable cause or warrant to conduct a search, they are allowed to use a dog to see inside a car or building they have no right to enter. Real police officers cannot tell what's inside, and use the dogs in much the same way that they used infrared technology prior to Kyllo. Still, the Court found this practice permissible when it considered the issue of K-9 sniffs during traffic stops. Illinois v. Caballes, 543 U.S. 405 (2005). Next, in Florida v. Jardines, the Court will rule whether a K-9 sniff at the front door of a home constitutes a search. This decision may include reconsideration of Caballes, but could also affect how law enforcement will proceed with the use of drone technology for surveillance.
Police do not need a warrant to fly over a property in a plane or helicopter, but drone technology permits closer, and perhaps even more discrete surveillance of a home. To what extend will law enforcement be permitted to use this technology to further erode our individual privacy rights?
Currently, the FAA does permit use of drone surveillance by law enforcement. While not yet widespread, the decreasing cost of this technology could eliminate our expectation of privacy in our own homes. A window with its curtains drawn, even if 100 yards away from a public street or walkway, will no longer ensure privacy. Many states have begun to regulate the use of drone technology, but the legislation is mostly in the early stages. This is an important question of constitutionally guaranteed privacy rights and requires Federal government attention.
US Representative Ed Markey (D-Mass.) has proposed legislation that would, among other things, require a warrant for drone use by law enforcement and would require publication of drone flights on a public website. If the bill passes, it will have gone a long way toward safe-guarding our privacy rights. If it doesn't pass, we're in for further erosion of our sacred rights as Americans. Either way, this is an issue likely to be before the US Supreme Court sooner or later, and one that must be resolved swiftly so as to protect our privacy rights. Cops looking inside houses with floating cameras would have Thomas Jefferson turning in his grave. Turning in his grave, drafting a renewed Declaration of Independence.
This issue seriously threatens privacy. Drone surveillance should require a warrant.
UPDATE: (By Lauren Noriega, April 14, 2016)
The Use of Drones in Police Enforcement
Although technology advances at lightning speed in this generation, many states are putting the brakes on use of that technology to police and enforce the law. This could be because there are unanswered constitutional questions regarding the use of such technology, or because citizens are uncomfortable with law enforcement holding technological power in their policing tactics. However, police utilizing technological advancements is an inevitable consequence, and some states are currently allowing the use of police drones.
Drones are small, unmanned aircraft that can potentially carry out a long list of functions. Today, some drones are equipped with facial recognition software, infrared technology, and even speakers capable of monitoring. Drones are useful to police, because they allow law enforcement to chase a suspect without the danger associated with a police officer pursuing the suspect. Because drones are capable of doing just about everything, and because law and technology do not advance at the same speed, there are many open, controversial questions regarding the use of drones in law enforcement.
One of the most controversial uses of police drones was first approved in the state of North Dakota – where it is now legal for police to fire “less than lethal” weapons from drones in the air. “Less than lethal” weapons include: rubber bullets, pepper spray, tear gas, sound cannons, and tasers. Those who argue against this use of drones say that even “less than lethal” weapons can be deadly depending on the suspect. For example, as of 2015, nearly 40 people had been killed by police tasers. Those who oppose the use of drones for administering less than lethal weaponry will be glad to know that drones are very expensive, and most departments simply don’t have the funding to obtain drones for this use. However, there are a still a significant amount of states that allow for this type of drone use.
Drones not only have implications for their use in “less than lethal” weapons, but there are significant issues regarding current search and seizure laws with the use of drones. When drones are used as an instrument for domestic surveillance, there are obvious Fourth Amendment issues. The Fourth Amendment protects you from unreasonable searches and seizures by the government. Because drones are so highly sophisticated, the search and seizure laws come into play, but there are no specific rules regarding drones at this point. In fact, it’s likely that drones will create some loopholes around the current search and seizure laws until specific rules are in place regarding their use by the government.
Throughout the course of history, courts have adopted specific rules regarding searches by aircraft and even drug-sniffing dogs. However, it took a significant amount of litigation for these rules to finally be adopted. In the interim, citizens were open to potential criminal liability through evidentiary findings by these modes of “technology.” The danger with drones is that their high level of sophistication opens them up to potential abuse by over zealous law enforcement personnel. Until there are applicable rules for searches by drones, the defendant’s fate is really up to their criminal defense attorney, the court, and the prosecutor. For this reason, it is extremely important for the defendant to obtain experienced counsel who understands Fourth Amendment history, the public policy behind the adopted rules, and the consequences these decisions may have on future privacy rights.
Nicholas M. Loncar, Esq.
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
By Nicholas Loncar
"Mr. Loncar has a great reputation in the legal community. I highly endorse his service to anyone in need of legal help."
-Attorney Andrew Leone
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