Would a search warrant be required?

In My Humble Opinion (IMHO)
#1

If law enforcement wanted to search my property from the air using a drone with a camera, could they do so without a warrant? Have there been any cases in the US regarding the constitutionality of using drones by law enforcement in such a manner?

What about google maps satellite imagery of my property?

These questions were prompted by the recent use of drones by law enforcement in Denver to search a murder suspect’s employer’s property and found evidence linking the suspect to the crime. In this case I believe the employer gave consent to the search.

#2

That’s an interesting question. Would this hinge on interpretation of the plain view doctrine?

To take a lower-tech version of this that would have been roughly equivalent well before drones or Google earth, can a cop use a high powered telescope to snoop through the windows of someone’s home (without a warrant)?

#3

I’ve always thought that if the police needed to do such a thing - then they likely have enough probable cause to request a warrant to do it - and should - to cover their bases. That they look for ways around this (maybe due to time, trouble) bothers me more than their ability to do it.

IOW - any time they make an overt attempt to view things that they would not be otherwise able to see (augmenting their senses) - they should be required to have a warrant. If you are normally with a sniffing dog, then the sniffing dog is part of your ‘normal’ ability - calling to have a sniffing dog brought to your location should require an exercise in probable cause/warrant. If you’re already running a drone over location A, and in the process of getting it in position over A, you spot something on B - that becomes “plain view”.

#4

Current case law on helicopters would suggest they don’t need a warrant, but it may change.


ETA: it would appear that the governor did veto that proposed law:

http://leginfo.legislature.ca.gov/faces/billStatusClient.xhtml?bill_id=201320140AB1327

#5

A person owns the space above their house (with some exceptions including aircraft so this does not contradict Horatius) so the police may not have the right to fly a drone over private property (yours or your neighbor’s) without a warrant.

#6

Based on the above, it would seem that to some extent it would hinge on evolving law on exactly what private drones are routinely allowed to do? Flying a few feet from someone’s bedroom window is quite different from the altitude that a passenger helicopter would use to overfly.

#7

I thought the law was quite the opposite. A person does not own the airspace above his property. I have never read otherwise.

And since you grant exceptions to aircraft, no warrant would be needed.

#8

Obviously the law may vary from place to place, but in general in common-law jurisidctions the rule is (a) that you own the airspace above your property, but (b) that your ownership is limited by (usually statutory) public rights of aviation. So it’s a bit like owning land over which a right of way exists; you can’t assert your ownership of the land to prevent people exercising their right of way.

So the question comes down to whether the drone was operated in a way permitted by public aviation rights. Usually the law will prescribe a ceiling below which aircraft must not fly; was it below this ceiling? Does the law make any special provisiosn regarding unmanned or remotely piloted aircraft and, if so, was the drone operated in compliance with them? Etc, etc.

#9

IIRC in the past cities in both the US and the UK have used aerial resources to track people who had pools and weren’t paying whatever permit was required to have a pool in that jurisdiction.

#10

Oh, they fly over, in copters, all the time around here ( So.Ark.) looking for patches of Weed. If they can do that I don’t see why drones would be any different. Or, a person looking over their back fence and seeing a neighbor burying a body and calling LE.

#11

The supreme court has not ruled on the upper boundaries of property rights. Vehicles under FAA jurisdiction are essentially granted an easement to fly over any most any private property. Drones are currently not under FAA jurisdiction so when they are flying over properties they can be trespassed.

FAA requires a minimum altitude of 500ft, 1000ft in densely populated areas. Drones routinely fly below those heights.

It’s my personal opinion that low flying drones should not be allowed without a warrant. However I think it becomes irrelevant as police will continue to gain access to more and more advanced satellite and aircraft mounted optics, allowing them to see anything a drone would be able to see anyway.

#12

It will be relevant because the vast majority of police departments will never be able to afford anything more than a drone.

#13

Access to satellite imagery is available for free to anyone with internet access.

The federal government routinely offers police departments access to technology that they could not individually afford.

#14

Setting aside cost/access issues for a moment, I’m still skeptical that even the most advanced imaging systems from satellite or high level aircraft could match a drone with a cheap camera that’s 100 feet away?

#15

There is substantial area of the US where there isn’t a minimum required altitude.

The rules on drones changed after I stopped being an active flyer so I’m not up on current nuances, but there is a maximum altitude for drones in many places specifically to keep manned and unmanned flying machines out of each other’s way. A quick google indicates they need to stay at 400 feet or lower - law enforcement may be permitted to go higher but I don’t know that for sure.

Yes. It’s Federal Aviation Regulations Part 107.

The big limiter is that flight over a person is not permitted, but that might not be required for checking out a property.

#16

Yes, they ARE under FAA jurisdiction, see prior post.

#17

+1

Part 107 pilot here, and I have the right to use designated airspace for my drone regardless of the owner of the land underneath, within the confines of the regs… Regulated airspace goes all the way down.

#18

So reading the Section 107 regulations, a “small unmanned aircraft” is “an unmanned aircraft weighing less than 55 pounds on takeoff, including everything that is on board or otherwise attached to the aircraft.”

But is there any exclusion for minimum size? I can’t believe a toy like the tiny $20 radio controlled flying Superman is somehow covered by FAA rules, including requiring a “remote pilot certificate with a small UAS rating”.

#19

Part 107 certification is only required for commercial operation. Personal use of small drones is covered under hobbyist use, which does not require a cert.

#20

FAA jurisdiction over airspace isnt really relevant to the question, IMO.

Previous court cases have ruled as not a search for helicopter fly overs with unassisted viewing to observe marijuana growing. From what I could tell, the use of visual aids like binoculars and telescopes would transform the act into a search if what was viewed was otherwise unavailable to be viewed.