Ubiquitous Eyes Above: Should Existing Fourth Amendment Precedent Apply to Drone Surveillance?

By John E. Murray*

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Unmanned Aircraft Systems,1 commonly referred to as drones, have the potential to transform our lives, from providing package delivery2 to serving as hovering wi-fi beacons.3 Although drones are most often associated with surveillance in combat zones,4 civilian law enforcement agencies have not yet widely utilized drones for surveillance.5 The Supreme Court has held that civilian law enforcement agencies may use manned aircraft for surveillance without engaging in a “search” under the Fourth Amendment and may do so without a warrant.6 If this precedent were to apply to drone surveillance, civilian law enforcement agencies would effectively have carte blanche to conduct warrantless drone surveillance on citizens.

Although there is a lack of case law regarding drone surveillance in civilian law enforcement,7 there is ample case law governing surveillance from manned aircrafts.8 The Supreme Court has ruled twice9 that observation from a manned aircraft is not a “search,” and the evidence derived from the surveillance is admissible without a warrant.10 While the Supreme Court has not yet ruled on whether warrantless drone surveillance would be admissible, existing precedent would seem to apply absent a contrary ruling.

In interpreting the Fourth Amendment, the Supreme Court has held that if police activity rises to the level of a “search,” then a warrant is required for admission of any resulting evidence.11 To determine if a search occurred, in Katz v. United States,12 Justice Harlan articulated a two-pronged test that is now the touchstone of Fourth Amendment jurisprudence.13 A warrant is required when “a person ha[s] exhibited an actual (subjective) expectation of privacy and, second, that the expectation [is] one that society is prepared to recognize as ‘reasonable.’”14 Justice Harlan’s test was later formally adopted in Smith v. Maryland.15

The Katz test contains both subjective and objective elements. First, the defendant must have exhibited a subjective expectation of privacy and taken steps to keep that activity private.16 Second, the defendant’s expectation must have been objectively “justifiable”, in the eyes of the court.17 Only when both of those elements have been satisfied has a “search” occurred, and thus a warrant would be required for that evidence to be admissible.18

In both California v. Ciraolo19 and Florida v. Riley20 the Supreme Court conducted the two-pronged Katz analysis and held that observations from manned aircraft do not require warrants.21 In Ciraolo, police officers received an anonymous tip that the defendant was growing marijuana in his backyard.22 Unable to see the back yard because of two high fences, the officers flew over the defendant’s backyard in a plane and observed marijuana plants growing.23 The Supreme Court held that that defendant’s efforts to shield his activities from observation passed the first prong of the Katz test.24 However, the majority held that the defendant did not have a privacy interest that would protect him from all forms of visual observation.25 The Court noted that “a 10-foot fence might not shield these plants from the eyes of a citizen or a policeman perched on the top of a truck or a two-level bus.”26 The Court reasoned that because the officers were flying within “public[ly] navigable airspace,” the place from which the police observed the defendant’s backyard was a “public vantage point.”27 Because the police were making observations from a public vantage point, their surveillance of the defendant’s yard was not a “search.”28 The Court noted that, “the Fourth Amendment simply does not require the police traveling in the public airways at this altitude to obtain a warrant in order to observe what is visible to the naked eye.”29

The facts in Riley were very similar to those in Ciraolo, except that the police, abiding by the applicable Federal Aviation Administration (FAA) regulations, flew a helicopter 400 feet over the defendant’s yard when they made their observations.30 The plurality recognized that the defendant manifested a subjective expectation of privacy over his activities in the greenhouse.31 However, applying the Ciraolo precedent, the Court in Riley ruled that the defendant’s expectation of privacy was not reasonable, and the police did not require a warrant for their surveillance.32 Despite this, the Court noted, “[w]e would have a different case if flying at that altitude [from where the observation was made] had been contrary to law or regulation.”33

In her concurring opinion, Justice O’Connor agreed that Ciraolo was controlling precedent, but she questioned the plurality’s emphasis on compliance with FAA regulations.

[T]here is no reason to assume that compliance with FAA regulations alone determines “‘whether the government’s intrusion infringes upon the person and societal values protected by the Fourth Amendment.’” Because the FAA has decided that helicopters can lawfully operate at virtually any altitude so long as they pose no safety hazard, it does not follow that the expectations of privacy “society is prepared to recognize as ‘reasonable’” simply mirror the FAA’s safety concerns.34

Justice O’Connor’s statement highlights the implicit contradiction that undermines the logic of Ciraolo and its relationship to the Fourth Amendment.

The majority in Ciraolo, and the plurality in Riley, rested their decisions on the fact that the police complied with FAA regulations when they observed the defendants.35 If the FAA can determine where police aircraft and drones can and cannot fly, then does the government define our reasonable expectation of privacy? The significant reliance in Ciraolo and Riley on FAA safety regulations for the Court’s interpretation of whether or not an expectation of privacy is reasonable raises the potential for government abuse of drone surveillance.

Drone technology has developed faster than the legal framework has evolved. The Federal Aviation Administration Modernization and Reform Act of 2012 (FMRA) directed the FAA to develop regulations and rules for integrating publicly and privately operated drones into the national airspace by late 2015.36 Currently, civilians cannot operate drones unless they receive a “special airworthiness certificate” (SAC) from the FAA.37 SACs are only being issued for “experimental” purposes, none of which are commercial uses.38 Interestingly enough, if government entities wish to operate a drone, the FAA may issue them a “certificate of waiver or authorization” (COA).39 Unlike SACs issued to civilians, COAs are not tied to a specific provision of the Code of Federal Regulations. COAs do not limit the purposes for which the drone can be operated.40 Many reports regard the FAA’s approach towards civilian use of drones as slow and draconian.41 However, by not examining the government’s uses of drones, the FAA has not held government operators42 to the same level of scrutiny as civilians.43 Based on existing FAA regulations, government use of drones is solely conditioned upon safe operation, regardless of the nature of the usage.

The Fourth Amendment requires that law enforcement seek approval, in the form of a warrant, from a neutral judicial officer before it searches persons or property.44 While the FAA, acting as an administrative agency, can set the rules for where drones can operate legally, the FAA can change those rules at virtually any time. The FAA can issue waivers for the kinds of regulations that the Court relied on in Ciraolo45 so long as “the Administrator finds that the proposed operation can be safely conducted under the terms of that certificate of waiver.”46

FAA regulations are designed to further air safety. The reliance on FAA regulations in Ciraolo and Riley was questionable at best when they were decided. Although a drone may be flown in a safe manner, it is not necessarily true that it is reasonable for a drone to look through our windows. If the government dictates flying regulations for drones, and the government uses drones for warrantless surveillance, the Judiciary should not simply take the government at its word and cite to Ciraolo and Riley to define a reasonable expectation of privacy. Drones are on the verge of becoming ubiquitous. If the Judiciary continues to interpret air safety regulations as dispositive of our expectation of privacy, we may be headed for what Justice Brennan cautioned against in his dissent in Riley:

“In the far distance a helicopter skimmed down between the roofs, hovered for an instant like a bluebottle, and darted away again with a curving flight. It was the Police Patrol, snooping into people's windows.” Who can read this passage without a shudder, and without the instinctive reaction that it depicts life in some country other than ours?47

* Candidate for Juris Doctor, Northeastern University School of Law, Class of 2016.

1 FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, 126 Stat. 11 (2012).(“The term ‘unmanned aircraft system’ means an unmanned aircraft and associated elements (including communication links and the components that control the unmanned aircraft) that are required for the pilot in command to operate safely and efficiently in the national airspace system.”). This article refers to UASs as “drones.”

2 David Streitfeld, Amazon Floats the Notion of Delivery Drones, N.Y. Times, Dec. 2, 2013, at B4.

3 Vindu Goel, A New Facebook Lab Is Intent on Delivering Internet Access by Drone, N.Y. Times, Mar. 28, 2014, at B3.

4 David Sanger & Eric Schmitt, Afghanistan Exit Is Seen as Peril to C.I.A. Drone Mission, N.Y. Times, Jan. 27, 2014, at A1.

5 Craig Whitlock & Craig Timberg, Border-Patrol Drones Being Borrowed by Other Agencies More Often than Previously Known, Wash. Post, Jan. 14, 2014 available at http://www.washingtonpost.com/world/national-security/border-patrol-drones-being-borrowed-by-other-agencies-more-often-than-previously-known/2014/01/14/5f987af0-7d49-11e3-9556-4a4bf7bcbd84_story.html. While US Customs and Border Protection has flown drones missions at the request of other civilian law enforcement agencies, the rationale for these requests remains unknown. There have been no cases where evidence collected via warrantless drone surveillance was used to prosecute a defendant.

6 See California v. Ciraolo, 476 U.S. 207 (1986); see also Florida v. Riley, 488 U.S. 445 (1989).

7 The only readily apparent case law regarding domestic drone surveillance involves the use of a US Customs and Border Patrol drone in the execution of a valid warrant. State v. Brossart, No. 32-2011CR00071, 2012 WL 10716031, at * 1 (N.D. Dist. 2012), appeal docketed, No. 20140027 (N.D. Jan. 14, 2014).

8 See e.g., United States v. Boyster, 436 F.3d 986 (8th Cir. 2006); United States v. Breza, 308 F.3d 430 (4th Cir. 2002).

9 California v. Ciraolo, 476 U.S. 207 (1986), Dow Chemical v. United States, 476 U.S. 227 (1986), and Florida v. Riley 488 U.S. 445 (1989) are often cited together. All three are closely related: Ciraolo and Dow Chemical were decided on the same day in 1986, Riley in 1989. The court came to the same conclusion in all three cases. However, Dow Chemical was a civil case filed after the EPA took aerial pictures of a Dow Chemical plant as a part of an inspection, not a criminal investigation. See Dow Chemical Co. v. United States, 476 U.S. 227 (1986).

10 California v. Ciraolo, 476 U.S. 207 (1986); Florida v. Riley, 488 U.S. 445 (1989).

11 Katz v. U.S., 389 U.S. 347 (1967).

12 Id.

13 See, e.g., Smith v. Maryland, 442 U.S. 735, 740 (1979) (“In determining whether a particular form of government-initiated electronic surveillance is a ‘search’ . . . our lodestar is [Katz].”).

14 Katz, 389 U.S. at 361 (Harlan, J., concurring).

15 Smith v. Maryland, 442 U.S. 735, 740-43 (1979).

16 Id. at 740.

17 Id.

18 See id. at 745-46 (finding no search where plaintiff had no actual or legitimate expectation of privacy).

19 476 U.S. 207 (1986).

20 488 U.S. 445 (1989).

21 Ciraolo, 476 U.S. at 211-12; Riley, 488 U.S. at 449.

22 Ciraolo, 476 U.S. at 209.

23 Id.

24 Id. at 211.

25 Id. at 211-12.

26 Id. at 211.

27 Id. at 213.

28 Id. at 213-14.

29 Id. at 215.

30 Florida v. Riley, 488 U.S. at 451 & n.3 (noting that while the FAA has established a minimum altitude for fixed wing aircraft, there is no minimum altitude that helicopters may operate at, so long as they are flown safely).

31 Id. at 450.

32 Id. at 450-52.

33 Id. at 451.

34 Id. at 453 (O’Connor, J., concurring) (citations omitted).

35 See California v. Ciraolo, 476 U.S. at 213-15; Riley, 488 U.S. at 450-52.

36 FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, 126 Stat. 73 (2012) (codified 49 U.S.C. § 40101 (2014)).

37 Federal Aviation Administration, Notice: Unmanned Aircraft Systems (UAS) Operational Approval, N 8900.227 (Jan. 2013), at 2-3, available at http://www.faa.gov/documentlibrary/media/notice/n%208900.207.pdf [hereinafter FAA Notice].

38 See 14 C.F.R §§ 21.175(b), 21.191 (2014).

39 FAA Notice, supra note 37, at 2.

40 Federal Aviation Administration, Interim Operational Approval Guidance 08-01, Unmanned Aircraft Systems Operations in the U.S. Nat’l Airspace Sys., 4.2 at 6 (2008) [hereinafter FAA Approval Guidance].

41 See, e.g., L. Gordon Crovitz, Drones Cleared for Takeoff, Wall St. J., Mar. 16, 2014.

42 49 U.S.C. § 40102 (2014) (FAA regulations often refer to “public aircraft” which are defined as aircrafts owned by a government entity).

43 FAA Approval Guidance, supra note 40, 4.1.2 at 6 (The FAA may approve a COA, when it otherwise would not, if the mission is deemed to be a matter of national security).

44 See Katz v. United States, 389 U.S. 357 (1967).

45 See California v. Ciraolo, 476 U.S. 215 (1986); 14 C.F.R. § 91.905 (2014).

46 14 C.F.R. § 91.903 (2014).

47 Riley, 488 U.S. at 466-67 (Brennan, J., dissenting) (citing George Orwell, Nineteen Eighty-Four 4 (1949)).