DomesticDrones-TheRiseoftheFlyingMachines:IsBig BrotherWatchingYou? Professor Lewis Langham, Jr

PROFESSORLEWISLANGHAM,JR.386

TABLEOFCONTENTS

I.IntroductiontoUnmannedAerialVehicles(UAVs).....................70 II.GovernmentAgenciesCurrentlyUseUAVsDespiteUnclear GuidelinesCurrentlyinPlacewithLikelyLegalImplications........71 III.TheStatesTakeVaryingStancesonSurveillanceDroneUsage, andSomeStateLegislaturesAllowtheirLawEnforcementAgencies toUseSurveillanceUAVs................................................................76 IV.LawEnforcement’sUseofUAVsImplicatestheFourth Amendment.......................................................................................78

A.Doesthe FourthAmendmentprohibit theuseofa UAVtoconductaerial surveillance? ................................................................................................ 79

386 Professor Lewis Langham Jr. has expertise and teaches in the areas of Criminal Procedure, Evidence and Trial Skills. Before joining WMU-Cooley in 2007, Professor Langham served as deputy legal counsel and policy adviser for the office of Michigan Governor Jennifer M. Granholm. He assisted the governor's legal counsel on legal issues related to criminal justice, prisons, homeland security, and civil rights. He also served as a liaison between the governor and various interest groups, and advised the governor on all policy or departmental issues related to the Michigan State Police, Department of Corrections, Homeland Security, Military & Veterans Affairs, and Civil Rights. Professor Langham formerly worked as an assistantpublicdefenderintheWashtenawCounty OfficeofPublicDefenderinAnn Arbor, Mich.Healsoworkedasa solopractitioner in Southfield,Michigan,focusing on criminal defense, estate planning, and divorce. Before he entered the legal profession, Professor Langham was a career law enforcement officer. He served 25 years with the Michigan State Police, beginning as a uniformed road trooper and moving up through the department as a Detective Specialist in the Criminal Investigation Division, Narcotics Section; a Detective Sergeant, Southeastern Criminal Investigation Division, Diversion Unit; a Detective Lieutenant, Oakland County Narcotics Enforcement Team; and Detective Lieutenant, Tobacco Products Tax Fraud Team. He was also the liaison to the United States Secret Service where he handled Presidential and Dignitary Protection Detail Assignments. He is a member of theState BarofMichigan,WashtenawCountyBarAssociation,Oakland County Bar Association, D. Augustus Straker Bar Association, American Bar Association,andtheMichiganStatePoliceCommand OfficersAssociation.Hewas admitted to theSupreme CourtoftheUnitedStatesonMarch 4, 2014,andtoUnited States DistrictCourt,EasternDistrictofMichigan, in June 2002.

B.Whattypesoftechnology,ifusedonthe aerialUAVS,would runafoul of the FourthAmendment?..................................................................................... 87 V.SomeFinalThoughts...................................................................93

I.IntroductiontoUnmannedAerialVehicles(UAVs).

Most everyone over the past decade or so has become aware that the United States Military uses weaponized unmanned aerial vehicles, generally referred to as drones. It is commonly reported that these drones carry out surveillance and intelligence operations in other countriesthroughouttheworldassistinginthewaronterrorandother military conflicts.387These costly, often weaponized, drones are undetectedbythehumaneyeduetotheirabilitytohovermilesabove earth’s surface and are capable of launching precision attacks on an enemy388 whilevideorecordingtheentireevent.389

ThisarticlefocusesonwhatmanyAmericancitizensmaynotbeaware of: that smaller, inexpensive, and non-weaponized drones have made their entry into the United States.390 In contrast to the military drones mentioned previously, these domestic drones are being used to conduct, inter alia, criminalandnon-criminalsurveillanceofthedayto-dayactivitiesofAmericancitizens.Thesetypesofdronesaremore commonlyreferredtoasunmannedaerialvehicles(UAVs).

American citizens are quite familiar with stationary surveillance and recordingdevicesthataremountedoverportionsoffreeways,surface streets, private homes, banks, and other business.391These devices function primarily to deter crime and to provide police agencies with video footage and photographs of people that are suspected to be involved in criminal activities, such as in the 2013 Boston Marathon

387Josh Levs, CNN Explains: U.S. Drones, CNN (Feb. 8, 2013), http://www.cnn.com/2013/02/07/politics/drones-cnn-explains/. 388 BBC, Drones: What are They and How Do They Work?, BBC News (Jan 31, 2012)https://www.bbc.com/news/world-south-asia-10713898. 389 Id. 390 Bart Jansen, FAA Approves First Commercial Drone over Land, USA TODAY (June 10, 2014), http://www.usatoday.com/story/money/business/2014/06/10/faadrones-bp-oil-pipeline-aerovironment-north-shore/10264197/. 391 Mary Madden & Lee Rainie, Americans’ Attitudes about Privacy, Security and Surveillance, Pew Research Center (May 20, 2015), https://www.pewresearch.org/internet/2015/05/20/americans-attitudes-aboutprivacy-security-and-surveillance/.

bombingcase.392 UAVshoveringoverAmericancities,however,isan entirely different governmental activity. These drones are essentially mobile cameras used for surveillance and recording of the day-to-day movementsofAmericancitizens.

In highlighting the issues of allowing law enforcement to use unmanned aircraft systems to observe and record the activities of American citizens, this article’s primary concern is balancing the FourthAmendmentimplicationsofsuchusageagainsttheprerogative of law enforcement. Specifically, how the UAV can be used and the possible impact this use could have on American citizens’ Fourth Amendment rights. For instance, UAVs with video and audio recording capabilities can observe people and places from a vantage point that may be seen as an unreasonable search, thus violating the Fourth Amendment’s protections against unreasonable searches and seizures (as discussed further on). If a UAV did not have these functions,itwouldbenothingmorethana hobby-relatedaircraftused for recreation, and we would not need to have this discussion as a country. However, as technological advancements appear to be never ending, UAVs have advanced the never-ending conversation on how the changing technology will affect privacy and other matters related totheUnitedStatesConstitution.

II. Government Agencies Currently Use UAVs Despite Unclear GuidelinesCurrentlyinPlacewithLikelyLegalImplications.

In the United States, drone usage has become more prevalent throughout the recent years. According to the Justice Department’s internalwatchdog,theFederalBureauofInvestigation(FBI)hasbeen using UAVs to support its law enforcement operations since 2004393 and has spent more than $3 million on the unmanned aircraft.394 Furthermore,theJusticeDepartment'sInspectorGeneral(IG),Michael Horowitz, revealed in a memo that the Justice Department also has

392 HeatherKelly, After Boston: The Pros and Cons of Surveillance Cameras, CNN (Apr. 26, 2013), http://www.cnn.com/2013/04/26/tech/innovation/security-cameraboston-bombings/. 393 DOJ Office of the Inspector Gen. Audit Div., Interim Report on the Department of Justice’s Use and Support of Unmanned Aircraft Systems, Rep.13-37,at4 (2013). 394 Id.

awarded over $1.26 million to at least seven local police departments andnonprofitorganizationsforUAVs.395

UAVusageislikely expanding inthe United States andwill continue todosointhecomingyearsaslawenforcementreliesmoreandmore on the technology. For example, the IG noted that another Justice Department agency, the Bureau of Alcohol, Tobacco, Firearms, and Explosives(ATF),planstouseUAVstosupportfutureoperationsand havealreadyspentalmost$600,000towardstheseendeavors.396

As the usage of UAVs increases and technology advances, the concernsforprotectingtheprivacyofUnitedStatescitizensheightens. Some privacy concerns have been voiced by various civil liberties groups critical of domestic UAV usage, and the potential invasion on people’s privacy. Other concerns have been voiced on the impact of thephysicalsafetyofcitizensduetotheusageofUAVs.Forexample, the government worries UAVs could collide with passenger planes, putting those passengers in mortal harm.397 These types of concerns have slowed more widespread adoption of the technology by the government.

In spite of this, statistics show that the usage of UAVs by the United States government is nowhere near being put on hold. From 2004 to May 2013, the Justice Department spent almost $5 million on unmanned aircrafts;398 however, the guidelines for drone usage are unclear and the legal ramifications of such spending seems to have been pushed to the side.399 “The aerospace industry forecasts a worldwide deployment of almost 30,000 drones by 2018, with the UnitedStatesaccountingforhalf.”400

While the Attorney General’s office formed a working group, the demand for UAVs continued to increase, especially throughout the

395 Id. at10-11. 396 Id. at4. 397 GregBotelho, FAA Official: Drone, Jetliner Nearly Collided over Florida, CNN (May11, 2014), http://www.cnn.com/2014/05/09/travel/unmanned-drone-danger/. 398DOJOffice of theInspectorGen.AuditDiv., Rep.13-37,ati. 399 Id. atii. 400 Joan Lowy, Pressure Builds for Civilian Drone Flights at Home, The Post and Courier (Feb. 26, 2012), https://www.postandcourier.com/pressure-builds-forcivilian-drone-flights-at-home/article _ 25795c0c-a829-5061-9015-fed60e1230ee.html.

government agencies.401The UAVs purchased by the Justice DepartmentarewhattheFederalAviationAdministration(FAA)calls “small UAVs,” unmanned aerial vehicles that “weigh up to 55 pounds.”402 Justice Department officials told the IG's office that none ofitsdroneswerearmed.403

Two other Justice Department components, the Drug Enforcement Administration(DEA)andtheU.S.MarshalsService,havepurchased UAVs for testing but said they had no plans to deploy them operationally.404 The U.S. Marshals Service spent $75,000.405 The DEA acquired its drone from another federal agency at no cost, and said it planned to transfer the craft to another agency.406 The U.S. Marshals Service said it planned to destroy its UAVs because they were“obsoleteandnolongeroperable.”407

These agencies recognize the need for clear guidelines. In June 2013, former FBI Director, Robert Mueller, told Congress that the FBI occasionally uses unmanned aerial vehicles but was developing guidelines in anticipation of issues that will arise as UAVs become moreomnipresent.408 Further,addressingpossiblelegalramifications, the FBI responded to an inquiry from Senator Rand Paul revealing it used “UAVs in eight criminal cases and two national security cases” since 2006.409 Among those, UAVs were used in Alabama during a standoffbetween authorities andJimmy LeeDykes,whowasholding a 5-year-old boyhostageinanundergroundbunker.410 TheFBI'sletter toSenatorPaulsaidthatwhiletheSupremeCourthadnotruledonthe useofUAVsspecifically,priorrulingsonaerialsurveillanceheldthat court warrants were not needed because the areas monitored were “open to public view,” and "there was no reasonable expectation of

401 Oversight of the Federal Bureau of Investigation: HearingbeforetheSen.Comm. Judiciary,113 Cong.(2013) (statement of Robert Mueller,Dir.,FBI). 402 DOJOffice of theInspectorGen.AuditDiv., Rep.13-37,ati-ii. 403 Id. atii. 404 Id. at6. 405 Id. at4. 406 Id. 407 Id. at6. 408 Oversight of the Federal Bureau of Investigation, supra note16. 409 LetterfromStephenD.Kelly, Assistant Director,OfficeofCongressionalAffairs, toRandPaul,M.D., U.S. Senator,Ky., Information on FBI’s Use of UAVs (July19, 2013),http://www.paul.senate.gov/files/documents/071913FBIresponse.pdf. 410 Id.

privacy.”411 The agency also wrote that a warrant wasn’t needed becauseUAVsdonotphysicallytrespassonprivateproperty.412

TheIG’sresponsemadeitunclearhowguidelineswerebeingapplied and the possible legal ramifications of the FBI usage of UAVs. The IG's report cited the Alabama case only, saying that a review of availablerecordsshowedthattheFBIappearedtobeoperatingUAVs only after obtaining required approvals from the Federal Aviation Administration.413 The IG report, however, suggested that UAVs might present special challenges in the realm of civil liberties.414 For example, the IG report said “[t]he unique capability of small [UAVs] to maneuver effectively yet covertly in the curtilage [of a home]. . . ” where expectations of privacy are not clear or well-defined.415 In addition, UAVs are capable of extended flight times of several hours orevendays,whichcouldhavelegalimplicationswhetherthetracking wasperformedonprivateorpublicproperty.416

Asanattempttofocusontheuniqueissuesdroneusagepresented,the IGrecommendedtheformationofa JusticeDepartmentworkinggroup to determine whether UAVs require their own legal policy, distinct fromthoseofmannedaircraft.417 ThedeputyAttorneyGeneral'soffice agreedwiththerecommendation.418

Currently, different agencies have varied options on the amount of guidelines that should be put in place. For example, the FBI told the IG that bureau guidelines require that agents get supervisor approval before conducting any aerial surveillance and comply with aviation lawsandpolicies. 419AsofMay2013,theATFsaiditwasdeveloping a checklist to guide how drone operators conduct flights.420 "These

411 LetterfromStephenD.Kelly, Assistant Director,OfficeofCongressionalAffairs, to Rand Paul, M.D., U.S. Senator, Ky., Information on FBI’s Definition of Reasonable Expectation of Privacy UAVs (July 29, 2013), http://www.paul.senate.gov/files/documents/071913FBIresponse.pdf. 412 Id. 413 DOJOffice of theInspectorGen.AuditDiv., supra note 8, at5. 414 Id. at8. 415 Id. 416 Id. 417 Id. at9. 418 Id. at19-20. 419 Id. at5. 420 Id. atii.

officials did not believe that there was a need to develop additional privacyprotocols. . . " forUAVs,theIG'sreportsaid.421

Regardingpotentialprivacyconcerns,boththeFBIandATFreported to the IG's office that they did not believe there was any practical difference between how a drone collects evidence and how a manned aircraftcollectsevidence.422 However,theFBIstillreportedthatsome guidelines are followed.423 The FBI has said its unmanned aerial vehiclesareusedonlytoconductsurveillanceoperationsonstationary subjects.424 In each instance, the FBI first must obtain the approval of theFAAtousetheaircraftina veryconfinedgeographicarea.425

A senior policy analyst with the American Civil Liberties Union, Jay Stanley, said, "[w]e urge the Justice Department to make good on its plans to develop privacy rules that protect Americans from another masssurveillancetechnology."426 HeaddedthatCongressshouldpass legislation requiring law enforcement to get “judicial approval before deploying drones, and explicitly forbid the arming of these machines.”427

In addition to the money spent by the FBI and ATF, the Justice Department has awarded $1.2 million in grants since 2007 to at least sevenlocalpolicedepartmentsandnonprofitorganizationstopurchase drones.428 The Justice Department money was used by Eastern Kentucky University;429 the Sheriff's Association of Texas;430 the Center for Rural Development in Kentucky;431 the Gadsden, Ala., Police Department; the Miami-Dade, Fl. Police Department;432 the

421 Id. at6. 422 Id. atii. 423 FBIOversightHearing, supra note23, at 45. 424 Id. 425 DOJOffice of theInspectorGen.AuditDiv., supra note8,at5. 426 Press Release, ACLU,Justice Department InspectorGeneralReleasesReport on Domestic Drones (September 26, 2013 ACLU), https://www.aclu.org/technologyand-liberty/justice-department-inspector-general-releases-reportdomestic-drones. 427 Id. 428 DOJOffice of theInspectorGen.Audit Div., supra note8,ati. 429 Id. at 11. 430 Id. 431 Id. 432 Id.

North Little Rock, Ark., police department;433 and the San Mateo County, Calif., Sheriff's Office.434 Five of the seven grants were used to buy drones.435 The awards to Miami-Dade and San Mateo were providedsolelytoevaluatedronesforuseinthefield.436

The drones met with varying success. In 2009, the Gadsden Police Department attempted to use its drone for a surveillance mission.

437 "However,GadsdenPoliceDepartmentofficialsstatedthat,duringthe mission, the ground control station lost communication with the unmannedaircraftsystem,causingtheUAVtocollidewitha tree."438

III. The States Take Varying Stances on Surveillance Drone Usage,andSomeStateLegislaturesAllowtheirLawEnforcement AgenciestoUseSurveillance UAVs.

Dronelegislationhasbeenproposedin36statessofar.439 Muchofthe proposedlegislationrequiresgovernmentstogeta warrantorfollowa set of procedures before allowing evidence obtained to be admissible in court. There are variations among the different bills: some ban the attachment of any weapons on the drone,440 some provide extra protectionforranchers,441 somerequirethelawenforcementagencies to conduct more research on how the drones will work in practice,442 and some states specify that the drones can only be used in emergencies such as pursuing fleeing felons or terrorism investigations.443 Some states have enacted moratoriums on drones untiltheirimpactcanbemorefullyexplored.444

433 Id. 434 Id. 435 Id. at11-13. 436 Id. at13. 437 Id. at12. 438 Id. 439 Allie Bohm, Status of 2014 Domestic Drone Legislation in the States, THEACLU (April 22, 2014), https://www.aclu.org/blog/technology-and-liberty/status-2014domestic-drone-legislation-states 440 Allie Bohm, Drone Legislation: What’s Being Proposed in the States?, THE ACLU (March 6, 2013), https://www.aclu.org/blog/technology-and-libertynational-security/drone-legislation-whats-beingproposed-states. 441 Id. 442 Id. 443 Id. 444 Id.

In Alaska, the proposed legislation creates a task force to study unmanned aircraft systems.445 The legislature lists out in detail the different types of research and case studies they feel will be the most beneficial.446

Some states’ proposed legislation have comprehensive sets of guidelines in place for drone usage by the government and private individuals. In Michigan, House Bill No. 4455 addresses the use of dronesbystatinggenerallythata personwho“usesanunmannedaerial vehicle shall comply with all federal aviation administration requirements and guidelines.”447 Michigan mandates that if the government wants to acquire information using an unmanned aerial vehicle, then the governmental agency may only do so in certain circumstances.448 Such circumstances include: 1) written consent; 2) “in circumstances in which it is reasonable to believe that there is an imminentthreattolifeorsafetyofa person;”449 3)pursuanttoa search warrant;or4)pursuanttosomecourtorders.450 Ifthegovernmentdoes not follow these guidelines, any information and evidence derived fromitsusewillbeinadmissible.451 Some states have imposed a stricter set of guidelines in an attempt to afford their citizens more privacy protection. Florida,452 Idaho,453 and Tennessee454 require law enforcement agencies obtain a search warrant before using drones for surveillance. Florida enacted a bill prohibiting the use of drones for collecting evidence without a warrant,455 unless to prevent a terrorist attack.456 This bill also requires the government agency to get a warrant to use drones for surveillance and collection of evidence subject to the common warrant exceptions.457 Also, a private cause of actionisallowedforanyviolation.458

445 H.C.R.6,28th Leg., (Alaska2013). 446 Id. 447 H.R.4455,97th Leg., (Mich.2013). 448 Id. 449 Id. 450 Id. 451 Id. 452 Fla.Stat.§ 934.50(2013). 453 S.1134,62ndLeg., 1stReg.Sess.(Idaho2013). 454 Tenn.Code Ann. §39-13-609(2013). 455 Fla.Stat.§ 934.50(2013). 456 Id. 457 Id. 458 Id.

technological factors when analyzing whether a search has occurred for purposes of the Fourth Amendment. For future guidance in this area, this author proposes a two-part inquiry: As a threshold matter, cana UAVbeusedtoconductaerialsurveillance?Ifso,whattypesof technologycanbeusedtoconductthesearchfromtheUAVplatform?

A. Does the Fourth Amendment prohibit the use of a UAV to conductaerialsurveillance?

The Fourth Amendment, states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ” 470 The Fourth Amendment’s protection against unreasonable searches exists whena personhasa constitutionally protected reasonable expectation of privacy.471 The United States Supreme Court has shaped the meaning of “unreasonable searches” over many years, and, as technology changes, the scope of protections granted by the Fourth Amendment are continually adjusted. “The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search andseizurewhenitwasadopted,andina mannerwhichwillconserve public interests as well as the interests and rights of individual citizens.”472

The definition of a “search” has been continuously modified as technology advances, significantly changing how the court interprets the Fourth Amendment protections. For example, in Olmstead v. United States, decided in 1928, the Court held that wiretaps to listen toa telephoneconversationwerenota “search”inthetraditionalsense, becausewithouta physicalintrusiontherecouldbenotrespass.473 The Courtsaidthatthegovernmentwasmerelylisteningtoa conversation, which amounted to eavesdropping.474 However, in 1961, the Court departed from older notions by expressly holding that the Fourth Amendment applies to the recording of oral statements even though therewasno“technicaltrespassunder. . . localpropertylaw.”475 Thus, the Supreme Court made it clear that the protection of the Fourth

470 U.S.CONST. amend.IV. 471 See Katzv.UnitedStates, 389U.S.347,361(1967). 472 Carrollv.UnitedStates, 267U.S.132,149(1925). 473 Olmsteadv.U.S.,277U.S.438,464-66(1928). 474 Id. 475 Silvermanv.United States,365U.S.505, 511(1961).

Amendmentdoesnot“turnuponthepresenceorabsenceofa physical intrusion into any given enclosure.”476 The Court has not vacated this prior holding that the absence of a physical intrusion does not ipso facto violate the Fourth Amendment. However, recent case law has reintroduced the idea that when a physical trespass occurs, there is an automaticimplicationofthe FourthAmendment’sprotections.477

The Court soon revisited its prior no trespass, no violation ruling. In 1967, the Fourth Amendment’s protections against unreasonable searches in relation to electronic surveillance were upheld by a 7-1 decision in Katz v. United States. In Katz, federal agents bugged a phone booth with an electronic listening device to record phone conversations that Mr. Katz was having, and eventually obtained incriminating evidence through the use of the listening device.478 Mr. Katz argued that his conversation was protected under the Fourth Amendment and because the government did not get a warrant the evidenceshouldnotbeadmissible.479 Thegovernmentarguedthatthe Fourth Amendment only protects people from places where searches are unreasonable, and a public, glass phone booth would not be protected because there was no expectation of privacy.480 The Court looked beyond its traditional notions of a search, such as ones in Olmstead, andheldtherewasnoconstitutionalsignificancetothefact that the electronic device used did not penetrate the wall of the phone booth.481 Rejecting the idea that the Fourth Amendment required a trespasstobeimplicated,theCourtnoted:

These considerations [constitutional safeguards] do not vanish when the search in question is transferred from the setting of a home, an office, or a hotel room tothatofa telephonebooth.Wherevera manmaybe, he is entitled to know that he will remain free from unreasonablesearchesandseizures. 482

476 Katzv.United States, 389U.S.347,353(1967). 477 See U.S.v.Jones,565U.S.400,132S.Ct. 945(2012). 478Katz, 389U.S.at349. 479 Id. at352.

480 Id. 481 Id. at353. 482 Id. at359.

TheCourtheldthatthegovernment’sactionsamountedtoa search.483 The Court reasoned that Mr. Katz had a reasonable expectation of privacy–he was having a personal conversation within an enclosed space,heclosedthedoor,andtookstepstokeephisconversationfrom being broadcast to the public.484 As such, the Court found that by takingmeasurestosafeguardhisconversation,Mr.Katzdidnotexpect the eavesdropping that occurred.485 Once the Court found that there was a search, the issue turned on determining whether the search was conductedincompliancewiththeconstitution.486 TheCourtfoundthat the government agents ignored “the procedure of antecedent justification. . . thatiscentraltotheFourthAmendment”–aprocedure thatwasrequiredforthiskindofelectronicsurveillance.487 “Overand again this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes,”488 and that searchesconductedwithoutpriorapprovalbya judgeormagistrateare perseunreasonableundertheFourthAmendmentsubjectonlytoa few specifically established and well-delineated exceptions.489 Therefore, the Supreme Court held that because the search violated the Constitution the subsequent evidence acquired as a result was inadmissible.490

Katz now became the touchstone in any Fourth Amendment inquiry. In his concurring opinion, Justice Harlan proposed a two-part test to inquire whether a person has a “constitutionally protected reasonable expectation of privacy.”491 The Katz test is: first, the individual must manifest a subjective expectation of privacy, and, second, the expectationmustberecognizedbysocietyasreasonable.492

This historic Fourth Amendment analysis is still used today, and is known as “the reasonable expectations doctrine.” For the government

483 Id. 484 Id. at352. 485 Id. 486 Id. at354. 487 Id. at359. 488 Id. at357 (quotingUnited States v. Jeffers, 342U.S.48,51(1951)). 489 Lloyd L. Weinreb, Leading Constitutional Cases on Criminal Justice 562 (West Academic,2013). 490 Id. at352-59. 491 California v. Ciraolo, 476 U.S. 207, 211 (1986) (quoting Katz 389 U.S. at 360, (Harlan,J., concurring)). 492 Id. at211 (citing Smithv.Maryland, 442U.S.735,740(1979)).

action to be a “search” under the Fourth Amendment, it must first be shownthatthecitizenhasa subjectiveexpectationofprivacy,andthen itmustbedeterminedifsocietyiswillingtorecognizethatexpectation ofprivacyasobjectivelyreasonable.493

While the United States Supreme Court has consistently upheld the FourthAmendment protections laidoutin Katz, thoseexpectations of privacy do not extend to areas where the Court has unambiguously held there is no reasonable expectation of privacy, and in situations where exceptions to the warrant requirement arise. For instance, the openfieldsdoctrinethatwasfirstappliedin Hester v. United States is stillalivetoday.494

The open fields doctrine was reaffirmed in 1984 in the case of Oliver v. United States.495 In Oliver, government officers saw a marijuana gardenoutsidethecurtilageofa homebywalkingalonga footpaththat led around a gate onto the defendant's property and continued down the road for nearly a mile where the garden was located.496 The man argued that by placing “no trespassing” signs he had manifested a reasonableexpectationofprivacy.497 TheCourtheldthattherewasno reasonableexpectationofprivacy,sotheevidencewasadmissible.498

Consistent with Katz, the Court reasoned that the Fourth Amendment does not merely protect a person from a subjective expectation of privacy, but that expectation must be one society is prepared to deem reasonable.499 The court further stated, “placement of ‘No Trespassing’ signs on secluded property does not create ‘legitimate privacy interest’ in marihuana fields.”500 Here, using a “No Trespassing” sign will not prevent the general public from viewing open areas from aerial surveillance, so there is no reasonable expectationofprivacy.501 Thus,merelytakingeffortstorestrictaccess

493 Id. at361. 494 See, e.g., Deanv.Superior Court, 35Cal. App. 3d 112,118(1973) (aerialsearches of“openfields”notprohibitedbytheFourth Amendment; no reasonable expectation ofprivacy). 495 Oliverv.United States,466 U.S. 170(1984). 496 Id. at173. 497 Id. 498 Id. at184. 499 Id. at177. 500 Id. at182. 501 Id. at179.

to an area is not an automatic guarantee of Fourth Amendment protectionswherenonewouldotherwiseexist.502

Based on the foregoing, the Court began to address the relevant issue of aerial surveillance in 1986. The Supreme Court ruled that an individual’s private property is not protected by the Fourth Amendmentsolongastheaircraftusedisina “navigableairspace”— somewherealreadyaccessibletothegeneralpublic.503 Therefore,what thepolicecouldthenseebylookingwiththenakedeyedidnotrequire a searchwarrant.504

Also, the plain view exception to the warrant requirement applies to someformsofaerialsurveillance,whichmayjustifywarrantlessaerial surveillance searches.505 In California v. Ciraolo, the police received an anonymous tip that marijuana was growing in Mr. Ciraola’s backyard.506 Mr. Ciraolo’s backyard was enclosed by two fences and was not visible from a ground-level view, so the officers secured a private plane and flew over his house at an altitude of 1,000 feet.507 Whileintheplane,officersobservedmarijuanaplantsgrowinginMr. Ciraolo’s yard, and “a search warrant was later obtained on the basis of one of the officer’s naked eye observations; a photograph of the surrounding area taken from the airplane was attached as an exhibit.”508

In Ciraolo, theCourtheldthatthenaked-eyeaerialobservationofthe backyarddidnotviolatetheFourthAmendment.509 TheCourtusedthe two-parttestfrom Katz todetermine iftherespondenthadmanifested a subjective expectation of privacy that society was willing to recognizeasreasonable.510 “Inpursuingthesecondinquiry,thetestof legitimacy is not whether the individual chooses to conceal assuredly

502 Id. at178-82. 503 Ciraolo, 476U.S.at208. 504 Id. 505 See, e.g., Katz, 389 U.S.at351(“What aperson knowinglyexposestothe public, eveninhisown homeoroffice,isnota subjectofFourthAmendment protection.”). See also Florida v. Riley,488U.S.445,445(1989) (useofhelicoptersand binoculars toseemarijuana through an opening in roofheld nota FourthAmendmentviolation). 506 Ciraolo, 476U.S.at209. 507 Id. 508 Id. at209-10. 509 Id. at215. 510 Id. at211-15.

‘private activity,’ but whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment.”511 The Court reasoned that the police observation took placewithina navigableairspace,andwasnotphysicallyintrusive.512 Further, the Court found that the police who observed the plants were abletoidentifythemasmarijuanabecausetheofficersweretrainedto recognize this type of plant.513 The Court held that because any member of society could have viewed the marijuana plant by looking down while flying in the airspace, the police traveling in that same airspace were not required to get a warrant to observe what anyone couldhavewiththenakedeye.514

California v. Ciraolo wasa closevoteof5-4,withChiefJusticeBurger writing the opinion of the Court.515 In the opinion, the Court stated, “wereadilyconcludethatrespondent'sexpectationthathisgardenwas protected from such observation is unreasonable and is not an expectation that society is prepared to honor.”516 On the other hand, Justice Powell dissented on the grounds that the second prong in the Katz test had not been adequately applied by the majority.517 The dissenting opinion concluded that there was a reasonable expectation of privacy, in this case, reasoning that there was a very small chance the general public would fly over this yard and observe the marijuana plants. 518 This 5-4 split is evidence of how the Supreme Court struggles to define what is a “search,” and in deciding when an individual’s subjective expectation of privacy is one that society, and theCourt,wouldhonorasreasonable.

Threeyearslaterthediscussioncontinued,andtheCourtstillcouldnot cometoa fullagreement.In1989,theSupremeCourtdecideda similar case in Florida v. Riley, with another close split of 5-4.519 The search in Riley was similar to Ciraolo—a tip that Mr. Riley was growing marijuana on his property.520 The officer circled twice over the Riley

511 Id. 512 Id. 513 Id. 514 Id. 515 Id. at208 516 Id. at214. 517 Id. at222. 518 Id. at225. 519 Florida v. Riley,488US445, 446(1989). 520 Id. at448.

property in a helicopter at the height of 400 feet and observed marijuanagrowingina greenhousewithhisnakedeye.521 Notably,the inside of the greenhouse was not visible from ground level; however, an opening in the roof made the marijuana plants visible from the air.522 TheSupremeCourtagainheldthattherewasnoviolationofthe Fourth Amendment because Mr. Riley did not have a legitimate expectation of privacy that society would honor as reasonable.523 Further,adopting Ciraolo, theSupremeCourtreasonedthatthepolice orthepubliccouldhaveinspectedthebackyardgardenfromthestreet or from the “vantage point of an aircraft flying in navigable airspace asthisplanewas.”524

The majority opinion in Riley made it clear that the Supreme Court was not setting an automatic precedent that society would never consider someone to have a legitimate expectation of privacy in the areas surrounding their home. The Supreme Court pointed out that its holdingdoesnotmeanthateveryinspectionofthecurtilageofa house from an aircraft will be outside the scope of Fourth Amendment protection.525 TheSupremeCourtreasoned:

[I]tisofobviousimportancethatthehelicopterinthis casewas not violatingthe law,andthereisnothingin the record or before us to suggest that helicopters flying at 400 feet are sufficiently rare in this country to lend substance to respondent's claim that he reasonably anticipated that his greenhouse would not besubjecttoobservationfromthataltitude.Neitheris thereanyintimationherethatthehelicopterinterfered with respondent's normal use of the greenhouse or of otherpartsofthecurtilage.526

521 Id. 522 Id. 523 Id. at451. 524 Id. at450(“[i]nanage where privateand commercialflightinthepublicairways isroutine,itisunreasonable forrespondenttoexpectthathis marijuana plants were constitutionally protected from being observed with the naked eye … the Fourth Amendmentsimply doesnotrequirethepolicetravelinginthepublicairways atthis altitude (1,000 feet) to obtain a warrant in order to observe what is visible to the nakedeye”). 525 Id. at451. 526 Id.

The concurring and dissenting opinions seemed to suggest that the frequency of public flights was a major consideration in analyzing if the respondent had a legitimate expectation of privacy. However, Justice O’Connor’s concurring opinion thought the frequency of flights was a key consideration of the majority, and Mr. Riley missed a key argument.527 Justice O’Connor stated, “[i]f the public rarely, if ever,travelsoverheadatsuchaltitudes,theobservationcannotbesaid to be from a vantage point generally used by the public and Riley cannotbesaidtohave‘knowinglyexpose[d]hisgreenhousetopublic view.”528

Furthermore, the dissenting opinion, which made very similar points to the concurring opinion, highlighted the absence of facts that Mr. Rileywasabletosubmittoshowthatintimatedetailswereconnected with the use of the home or curtilage observed.529 The dissent posed many questions on the meaning of “intimate details” and warned the court against finding the curtilage outside of the Fourth Amendment protection merely because of the distasteful use of growing drugs.530 Thedissentstated:

Itisdifficulttoavoidtheconclusionthattheplurality has allowed its analysis of Riley's expectation of privacytobecoloredbyitsdistastefortheactivityin which he was engaged. It is indeed easy to forget, especially in view of current concern over drug trafficking,thatthescopeoftheFourthAmendment's protection does not turn on whether the activity disclosedbya searchisillegalorinnocuous.531

These cases are important in governing the first inquiry under the FourthAmendmentanalysis—cananaerialvehiclebeusedtoconduct searchesabsenta warrant?Theshortanswerisyes.WhiletheSupreme Courthasnotyetruledonthisissue,priorrulingssuggestthatthesole issue of using an aerial vehicle does not per se result in a Fourth Amendment violation. Obviously, there may be particularized

527 Id. at455. 528 Id. 529 Id. at462-64. 530 Id. at463. 531 Id.

circumstancesthatcouldcreatesuchanissue;however,thenotionthat a UAVcouldnotbeusedatallisfolly.

B. What types of technology, if used on the aerial UAVS, wouldrunafouloftheFourthAmendment?

The second issue should lead to a more restrained use of UAVs that conduct searches. Importantly, many different types of surveillance devicescanbemountedona UAV.Forexample,militarydroneshave been outfitted with visual cameras, thermal imaging systems, radar, and other devices. There have also been reports that easily movable devices that can attack a person’s smartphone are currently in use withintheboundariesoftheUnitedStates.532 Thesedevices,knownas interceptors,impersonatecelltowersandcanmanipulatea smartphone in all sorts of ways: from GPS tracking to installing spyware to listeninginonconversationsoccurringinreal-time.533

Fortunately, the Court appears reluctant to allow devices that go beyond the capabilities of human perception. In 2001, the Supreme Court did just that in Kyllo v. United States. In Kyllo, a government search was not done with the “naked eye,” but was instead done by using a thermal-imaging device.534 Kyllo was another close 5-4 split vote,withtheSupremeCourtholdingthattheuseofa thermal-imaging device aimed at a private home from a public street in order to detect relativeamountsofheatwithinthathomeconstituteda “search”falling within the protections of the Fourth Amendment.535 The inquiry then becamewhetherornotthatsearchwasreasonable.

In Kyllo, thegovernmentofficerobtaineda thermalimagertoscanthe homeofMr.Kyllo.536 Theofficerdesiredtochecktheamountofheat thatwasemanatingfromthehometoseeifitwouldbeconsistentwith the amount of heat generated by lamps needed to grow marijuana

532 Andrew Rosenblum, Mysterious Phony Cell Towers Could be Intercepting Your Calls, POPULAR SCIENCE (August 27, 2014), http://www.popsci.com/article/technology/mysterious-phony-cell-towers-could-beintercepting-your-calls. 533 Id. 534 Kyllov.U.S., 533U.S.27, 40 (2001). 535 Id. 536 Id.

plantsthatmaybehiddeninside.537 Theofficerdida quickscanofMr. Kyllo’shome,onlylastinga fewminutes,whilehesatinthepassenger seat of a vehicle across the street from the house.538 The scan showed that the home was substantially warmer than others in the neighborhood.539 Based upon the thermal image of the house, an informanttip,andutilitybills,theofficerobtaineda searchwarrant.540 While carrying out the search warrant, the officer found an indoor growingoperationwithmorethan100marijuanaplants.541

TheCourtfirstcontrasted Kyllo, whichinvolveda residentialhome,to an earlier case decision, Dow Chemical Co. v. United States, which involved an industrial plant complex.542 In Dow Chemical Co. v. US, the Court held that the taking of aerial photographs of an industrial plant complex from navigable airspace was not a search, even though the camera they used was “the finest precision aerial camera available.”543 Even though this camera let police capture a lot more than the naked eye could see, the court reasoned that the open area of anindustrialplantcomplexspreadover2,000acreswasnotsimilarto the “curtilage” of a dwelling for the purpose of the analysis, but was instead susceptible to the open fields doctrine.544 The Kyllo Court noted that in Dow Chemical the area searched was “not immediately adjacent to a private home, where privacy expectations are most heightened.”545

The Kyllo Court went on to acknowledge the advancements in technology and how those advancements implicate the Fourth Amendment.546 The Supreme Court stated “[i]t would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of

537 Id. at 29-30 (“[t]hermal imagers detect infrared radiation, which virtually all objects emit butwhich is notvisibletothe nakedeye.Theimagerconverts radiation into images based on relative warmth-black is cool, white is hot, shades of gray connote relativedifferences;inthatrespect,itoperates somewhatlike a videocamera showing heatimages.”). 538 Id. 539 Id. 540 Id. 541 Id. 542 Id. at32-33. 543 Dow ChemicalCo. v. United States,476U.S.227,231(1986). 544 Id. atn.4. 545 Kyllo, 533U.S.at33. 546 Id at33-35.

technology. . . [t]he question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.”547 TheCourtalsoacknowledgedthatwhilethe Katz testmay besubjectiveandunpredictablewhenappliedtocertainsituations,this wasnotoneofthosesituations. 548 TheSupremeCourtemphasizedthat dating back to common law there is always some expectation of privacy that exists in the interior of one’s home, and that this expectation of privacy is “acknowledged to be reasonable.”549 The Courtreasonedthatbecausetheinformationregardingtheinsideofthe home could not have been observed without the sense-enhancing technology—importantly technology that is not in use by the general public—the search is analogous to one that was a physical intrusion intoa constitutionallyprotectedarea.550 Thus,theCourtheld,“ashere, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ andispresumptivelyunreasonablewithouta warrant.”551

Allowing law enforcement to use technology that collects and stores vast amounts of an individual’s personal information without obtaining a warrant raises red flags. In United States v. Jones, a nightclub owner was suspected of trafficking narcotics.552 While traditionalinvestigativetacticswereemployed,theofficerswenta step furtherbyplacing a GPSdevice onthe undercarriage ofthe nightclub owner’s Jeep after the authorizing warrant expired and in a different jurisdiction.553 This device was able to pinpoint the Jeep’s location within 100 feet, and relay that information via a cellular phone to a Government computer, whichgenerated over2000pagesinonlyfour days.554 This information was used to obtain an indictment charging the nightclub owner with conspiracy to distribute and possess with intenttodistributecocaineandcocainebase.555

547 Id. at33-34. 548 Id. at39. 549 Id. at34. 550 Id. at40. 551 Id. 552 United Statesv.Jones, 565U.S.400(2012). 553 Id. at402-04. 554 Id. 555 Id.

While the Court found that the evidence obtained via the GPS device should have been suppressed on the trespass basis, it is Justice Sotomayor’s concurrence that is the most illuminating.556 Justice SotomayorrecognizesthattheGovernmentcouldjustaseasilytracka person without use of its own GPS system by using the GPS found in a person’s smartphone.557 In that situation the trespass rule would not apply,andtheCourtwouldhavetolookto Katz.

558

In applying the Katz analysis, there exists unique characteristics of GPS surveillance that must be given proper attention: “GPS monitoring generates a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”559 The dangerexistsinallowingtheGovernmenttostoresuchdatafordistantfuture mining coupled with the GPS’s ability to evade the “ordinary checks that constrain abusive law enforcement practices.”560 Because GPSuseissolowcost,whilegeneratingmassiveamountsofpersonal data,ithasthepowertochangethedynamicbetweencitizensandtheir government in a way that defeats the democratic ideals of the United States.561 JusticeSotomayorgoesevenfurtherbystatingthattheCourt may have to reassess the idea that there exists no reasonable expectation of privacy in information voluntarily given to third parties.562 In an uncanny foreshadowing, Justice Sotomayor leaves us withwhatherpositionwouldbeifthatreassessmentevercame:“Ifor onedoubtthatpeoplewouldacceptwithoutcomplaintthewarrantless disclosuretotheGovernmentofa listofeverywebsitetheyhadvisited inthelastweek,month,oryear.”563

Recently, the Court weighed in on a smartphone owner’s expectation of privacy. In Riley v. California, the driver’s car was properly impounded and the resulting inventory search revealed two handguns under the hood.564 The driver was arrested for the possession of concealedandloadedfirearms,andhis“smartphone”wasseizedafter

556 Id. at413-14. 557 Id. at414-15. 558 Id. 559 Id. 560 Id. 561 Id. 562 Id. at957. 563 Id. 564 Riley v. California,573U.S.373(2014).

the search incident to lawful arrest (SILA).565 Because SILA also revealeditemsassociatedwiththe“Bloods”street-gang,thesearching officer, and later a detective, accessed the phone looking for further evidence of gang association without first securing a warrant.566 Because of that warrantless search, driver was further charged with firingatanoccupiedvehicle,assaultwitha semiautomaticfirearm,and attemptedmurder.567 Thedrivermovedtosuppresstheevidenceseized fromthesmartphonethatledtothelatercharges.568

The Court defined a smartphone as “a cell phone with a broad range of other functions based on advanced computing capability, large storagecapacity,andinternetconnectivity.”569 TheCourtfoundthatin ordertodeterminewhethera warrantexceptionexists,a balancingtest is necessary to weigh the degree of intrusion against legitimate government interests.570 In refusing to apply the rule of Robinson,

571 theCourtdistinguishedthephysicalcontentthatthesmartphone,asan item,fallsintofromthedigitalcontentfoundwithinthesmartphone.572 The Court also held the rationales guiding the SILA from Chimel573 inapplicable because once the smartphone is seized—which the government may do in conjunction with a valid SILA—there is minimal risk of it being destroyed or being used as a weapon, so a search of the smartphone’s contents without an authorizing warrant is unjustified.574 Therefore, the search violated the Fourth Amendment, and the information seized from the smartphone should have been suppressed.

The majority opinion by Justice Roberts leans heavily on Justice Sotomayor’sconcurrencein Jones575 byacknowledgingtheextensive amount of personal data that can be found on a smartphone, both in quantity and quality. This author posits that Kyllo, Jones, and Riley form the foundation for this new arena of Fourth Amendment

565 Id. at378-79. 566 Id. at378-81. 567 Id. at379. 568 Id. 569 Id. 570 Id. at374 (citingWyomingv.Houghton,526 U.S. 295(1999)). 571 United Statesv.Robinson,414U.S.218(1973). 572 Riley, 573U.S.at386. 573 Chimelv.California,395U.S.752(1969). 574 Riley, 573U.S.at386. 575 Jones, 565U.S.at413 (2012)(JusticeSotomayor, concurring).

jurisprudence. Adhering to this trifecta, the Court will, absent exigent circumstances,wanttolimittheuseofthesenewinvasivetechnologies intheday-to-dayfunctionsoflawenforcementagencies. Kyllo makes it clear that law enforcement must seek a warrant before they use equipment that invades a citizen’s privacy from a distance. Jones suggeststhattherearecertaintypesofequipmentonlyallowableinthe most extreme circumstances, subject to judicial oversight due to the high-level of data—data that may exceed the constraints of a warrant—and the deep intrusion of privacy they entail. Riley is the Court’s way of acknowledging that the prevalence of the newer technology of smartphones, and all the personal data that citizens actively put in them, as well as the amount of personal data that is involuntarily stored within them, changes the traditional Fourth Amendment analysis. The Court cannot rely on police restraint to protect the delicate balance between maintaining the privacy of a citizenandthegovernmentinterestinintrudingonthatprivacy.

So what types of technology are problematic to the Fourth Amendment’s protection against unreasonable searches including searchesoutsidethejudicial process? Kyllo clearly doesnotallowthe thermalimagingdevicethatwasatthecenterofthatcontroversy.But Kyllo also teaches us that any technology that unreasonably enhances humanperceptionisout.Thisincludesthermalimaging,andanytype ofequipment thatcanpassthroughphysical barriers.Thistechnology exists, and is becoming more advanced every day. MIT has been working on a portable, hand-held device that can track people behind walls using Wi-Fi signals, if they have a receiver.576 MIT also has successfullydevelopedsimilartechnologythatusesradiosignalstodo the same, but without the use of a receiver.577 These types of technologies must not be allowed to be used outside of emergency situationsorwithoutjudicialoversight.

576 Helen Knight, New System Uses Low-Power Wi-Fi Signal to Track Moving Humans — Even Behind Walls, MIT News, (June 28, 2013), http://newsoffice.mit.edu/2013/new-system-uses-low-power-wi-fi -signal-to-track-moving-humans-0628. 577 NickBarber, MIT's 'Kinect of the Future' Looks Through Walls With X-Ray Like Vision, IDG News Service, (October 13, 2013), http://www.itworld.com/hardware/378242/mits-kinect-future-looks-through-wallsx-ray-vision.

Currentlyavailabletechnologymustalsoberestricted. Jones suggests that police use of GPS technology must be closely scrutinized by the court. This means that a warrant must be sought if the police wish to make use of GPS devices to track citizens. Riley pushes this line of thought even further, and by banning police searches of smartphones without a warrant, the Court has strengthened our privacy interests. Analogoustothereasoningin Riley, is theideathattheuseofthenew interceptortechnologywithouta warrantmustalsobeprohibited.The interceptor allows police to surreptitiously search a smartphone without having to first gain physical access to the smartphone. This includes the ability to monitor calls and texts in real-time, to manipulatethephonetosendtextmessageswrittenbythepolice,and eventoturnthephoneintoa microphonethatthepolicecanmonitor.578 Becausethesetechnologiesallowpolicetoperformactsremotelythat they would be barred from doing in person, the need for judicial oversightbecomesmoreimperative.

V.SomeFinalThoughts.

This author does not suggest that UAVs cannot serve legitimate governmentinterests.UAVscanflyandhoverinplaceswhereourfirst respondersareunabletophysically go.Lawenforcement officers and firefighters have used UAVs in many situations to preserve life and property.Witheyeslookingdownfromabovecoveringa muchlarger search grid than could ever be seen from ground level with the naked eye,UAVshavebeenusedtolocatelostormissingchildreninheavily wooded areas. UAVs have aided police in determining the exact location of a barricaded gunman to keep law enforcement as safe as possible. Firefighters have used UAVs to determine the direction of travel and how widespread a wildfire is.579 Clearly, UAVs have increased the effectiveness of police to react to emergency situations. Goingforward,theGovernmentwillonlycontinuetorelyonthisnew technology.

578 Andrew Rosenblum, Mysterious Phony Cell Towers Could be Intercepting Your Calls, POPULAR SCIENCE (August 27, 2014), http://www.popsci.com/article/technology/mysterious-phony-cell-towers-could-beintercepting-your-calls. 579 American Civil Liberties Union, Protecting Privacy from Aerial Surveillance: Recommendations for Government Use of Drone Aircraft, (December 2011).

With the Government’s inevitably increased use of UAV technology in conducting criminal and non-criminal investigations, this article focusesontheuseofUAVswhereexigentcircumstancesdonotexist. As this article points out, the Constitution may be implicated because of criminal investigations conducted by law enforcement authorities. With working groups being formed at the various levels of state and federalgovernmenttodeterminethelegalissuesrelatedtoUAVsentry into the civilian population for criminal investigations, and with legislationinitsinfancystagesofdrafting,it'sinevitablethatUAVuse byfederalandlocallawenforcementagenciesthroughoutthecountry will become more prevalent. As UAV usage increases, the United States Supreme Court must ultimately decide the constraints of their usageagainstcitizensinnon-emergencysituations.Thisauthorposits that most of the invasive technology available for use will be effectivelyconstrained.