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.
In 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.