A recent legal decision in North Dakota that used evidence against an American citizen using a drone – and gathered without a warrant – raises some interesting arguments about the Fourth Amendment in the 21st century.
Rodney Brossart was sentenced to three years in prison in January for a June 2011 incident involving police, a neighbor, and six cows. (In the end, he will serve three months in prison and three months at home. )
At some point, local police borrowed a Predator drone used by the border patrol to take photographic evidence during a confrontation between Brossart, his family members and a police SWAT team.
Brossart's lawyer wanted the case thrown out because the drone surveillance was conducted without a warrant. The attorney, Bruce Quick, said in March 2012 that, "it's bizarre to me they would be using military drones for that purpose. … I don't think those things are intended to be used for that."
State prosecutor Douglas Manbeck countered the anti-drone argument, saying there is "no existing case law that bars their use in investigating crimes."
In July 2012, State District Judge Joel Medd allowed the drone evidence to stand, saying, "there was no improper use of an unmanned aerial vehicle."
Brossart and his sons threatened and fought officers at the scene, in an armed standoff that was witnessed by the drone as it was used to show live video to police. The drone was also used to locate Brossart's family before the confrontation.
The Brossart case was a first in the American legal system, since drone surveillance played a part in the proceedings, but it won't likely be the last.
Last month, the Electronic Frontier Foundation said it has obtained records that showed Customs and Border Patrol drones were lent to other national and local agencies, and were used 700 times between 2010 and 2012 for domestic surveillance.
In his 2012 arguments, attorney Quick cited the Supreme Court case of Kyllo v. the United States as supporting his contention that the Predator-B drone's use without a warrant violated the Fourth Amendment.
The Fourth Amendment affirms "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
In the Kyllo case from 2001, the Supreme Court decided that the use of infrared detection, as a form of surveillance, to identify marijuana cultivation inside a suspect's house violated the Fourth Amendment.
The Supreme Court has yet to consider drone surveillance and the Fourth Amendment, but Kyllo isn't the only case that could come into play.
In California v. Ciraolo (1986), the Supreme Court ruled that an individual's private property is not protected by the Fourth Amendment as long as an aircraft is in navigable airspace; in this case, the altitude was 1,000 feet. "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," the Court said.
For now, there doesn't seem to be a clear-cut answer, despite the Fourth Amendment's message, partly because of the technology wrapped up inside higher-tech surveillance drones. Some drones can not only see clearly into your backyard, but can also theoretically listen (in some circumstances) and take thermal-sensitive pictures. More sophisticated drones can intercept electronic communications, track GPS information, and use facial recognition technology.
"While individuals can expect substantial protections against warrantless government intrusions into their homes, the Fourth Amendment offers less robust restrictions upon government surveillance occurring in public places including areas immediately outside the home, such as in driveways or backyards," said Richard M. Thompson II, an attorney for the Congressional Research Service, in a 2013 study. "Concomitantly, as technology advances, the contours of what is reasonable under the Fourth Amendment may adjust as people's expectations of privacy evolve."
Groups like the American Civil Liberties Union and the Electronic Privacy Information Center are pushing hard for privacy-law reforms that would require law enforcement to strictly follow the Fourth Amendment when it comes to drone surveillance.
In an interesting development, another opinion from the Court on surveillance could be a factor down the road as drones become more commonplace and powerful.
In Jones V. United States (2012), the Court said that a tracking device couldn't be place on a car, without a warrant, to monitor its movements on public streets. Justice Samuel Alito, in a concurring opinion, said that "for such offenses, society's expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual's car for a very long period."
A Washington Post story on Wednesday detailed how such technology, on a broader scale, now exists to catalogue the movement of everyone in an area the size of a small city. The cameras are mounted on a plane, for now, which flies for several hours over a region, and they can track every vehicle and person in that area, albeit at a low resolution.
"Although these cameras can't read license plates or see faces, they provide such a wealth of data that police, businesses and even private individuals can use them to help identify people and track their movements," the Post said.