Drones Hover Closer to Everyday Law Enforcement

by Stephen Klein

In the 2015 Wyoming General Session, a bill to limit use of drones—or unmanned aerial surveillance—by the law enforcement failed in the Senate Judiciary Committee after passing the House. The bill was sponsored by the Joint Judiciary Committee following the 2014-15 interim, but underwent amendments on its journey through the legislature that ultimately kept it from going before the Senate. In its original format, the bill would have required police to get a warrant before using drones to conduct searches in criminal investigations. The bill was not considered in the recent 2016 Budget Session, but the topic is certainly not going away.

The Fourth Amendment to the U.S. Constitution generally protects from unreasonable searches and seizures by the government. The key issue with drones is that the Fourth Amendment is not often implicated, because a citizen cannot claim a right to privacy in public or, at least, the security from searches he can claim under the Fourth Amendment in his house. But there is an uneasy and growing tension between the ease of surveillance and the public lives of citizens. Surely, there must be some right to be free from the government's eye even in public.

In 2012, the Supreme Court held in United States v. Jones that police must get a warrant before using a GPS device to track a person's movements in a car. But even if this ruling eventually requires police to get a warrant before tracking a specific person with a drone, it is unlikely to prevent generalized surveillance – that is, ever-present mobile security cameras in the sky.

The Fourth Amendment also does not generally apply to private persons unless they are acting as an instrument of the state. So, unless doing so as a pre-arranged informant or under other control of a law enforcement agency, if a citizen breaks into a person's home and steals evidence of a crime and gives it to law enforcement, the Fourth Amendment does not apply. The thief could be charged with burglary and other related crimes, but the government could still use the stolen evidence without any Fourth Amendment exclusion.

These two concerns—public presence and private investigations—combined recently in Oklahoma. A prostitute was videoed with a customer in a car by a private citizen using a drone. She recently pled guilty to public lewdness, and the police used the video as evidence to support the charges. I will not provide a direct link to the video in question (it can be viewed through the previous link), but it proves both the effectiveness and limitations of small drones. (It also raises cultural questions of the merits of citizen vigilantism and voyeurism that I certainly find concerning, but these do not implicate the Fourth Amendment discussion.)

The police could have used a drone in the Oklahoma situation on their own, and without a warrant, even if the car was parked on private property. Small drones that are available for civilians would not have served much purpose had the subjects of surveillance not been stationary. However, drones used by domestic law enforcement are becoming much more advanced, as witnessed with the FBI's use of one in the recent Oregon standoff.

The FBI has better funding than any Wyoming police agency, so this is not to say advanced drones will be used by police within the state anytime soon. But the Oklahoma situation shows the ease with which any police agency could utilize less-advanced drones practically overnight. It also shows that, despite insistence from the growing drone lobby, even if Federal Aviation Administration is going to regulate drones, that is clearly not standing in the way of citizens or police and, in this case, cooperative surveillance.

Without any legal requirement to disclose police drone use in Wyoming (another piece of the bill that failed in 2015), it is imperative that citizens in the various towns and counties keep tabs on the tactics of local police. Pre-emptive reform was, perhaps, too much to ask, but once police drone use begins in Wyoming it is likely that legislature will be willing to take another close, serious look on balancing law enforcement and citizens' public freedoms.