June 29, 2015 By Wallin & Klarich

Generally, the 4th Amendment requires police to get a warrant to avoid an illegal search. However, the 4th Amendment as it applies to drones is a new and unsettled area of the law. Currently, police do not need a warrant to fly a drone over your property for investigative purposes, but a new bill in California is proposing that law enforcement need obtain a warrant before conducting drone surveillance of your property.

Reasonable Expectation of Privacy and Drones

The legality of drone usage and the 4th Amendment warrant requirements hinges on whether drones violate your reasonable expectation of privacy. Over the last 25 years or so, courts have struggled with how new advancements in technology should be reconciled with 4th Amendment protections. With the widespread use of smartphones, GPS and other technologies, our privacy expectations have arguably been lowered.

Legal Precedent

Drone Search WarrantIn one case, the Supreme Court ruled that flying a helicopter 400 feet over one’s house was not a search at all and thus the 4th Amendment did not apply. The court’s decision stemmed from the fact that it was navigable airspace—as defined by the FAA—and therefore no different than a commercial airplane flying over your house.1

In another case, the Supreme Court specifically tackled the issue of what surveillance technology violated privacy interest.2 The court said that technology not readily available to the public (in that case thermal imaging) used to gather information that could not be observed by the naked eye was a search.

As drones become more commonplace, these cases are certainly relevant and will be reexamined if and when the U.S. Supreme Court decides to weigh in on the issue of drones and the extent of 4th Amendment protections.

California’s Proposed Legislation (AB56)

The proposed California bill, AB56, would tighten up regulations of drones used by state and local authorities. AB56 aims to increase transparency of state drone surveillance of public property by requiring approval of local legislative bodies before police and other state agencies are able to implement a drone program.3

Regarding private property, the bill will generally require a warrant for law enforcement to use a drone to survey private property unless exceptional circumstances, such as a public emergency or need to prevent a violent crime, are present.3

Though AB56 does not directly affect federal regulations, it will impede federal efforts to use drone surveillance in California. This is because the federal government gives funding to states to implement drone surveillance. In exchange for federal funds, the federal government is able to use or tap into the surveillance data collected by state and local authorities.

By increasing regulation on the state and local levels, it could indirectly tighten federal regulations as well because of federal reliance on California and other state drone programs to gather information.5

Benefits to You if Legislation Implemented

drones private propertyIf AB56 becomes law in California, you will enjoy more privacy in your home and on private property as California authorities will need to get a warrant before flying a drone over your home and to use its attendant surveillance technology.

AB56 will also place tougher restrictions on all levels of government and would put an end to limitless and unchecked surveillance capabilities, ensuring that your 4th Amendment rights are no longer casually circumvented.

We Want to Hear Your Feedback

Do you think police should need a warrant to fly a drone over your home? Should evidence obtained by drone surveillance be used against you in court?

Do drones violate your reasonable expectation of privacy on your own property? Please tell us what you think in the comments below.

1. [Florida v. Riley (1989) 488 U.S. 445 ]
2. [Kyllo v. United States, (2001) 533 U.S. 27]
3. [http://blog.tenthamendmentcenter.com/2015/05/california-bill-taking-on-warrantless-drone-surveillance-passes-assembly-61-12/]
4. [Id.]
5. [Id.]

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