The Fourth Amendment and Case Law

The Fourth Amendment to the United States Constitution also had its genesis in the Brit­ish occupation of the American colonies. The

Amendment provides, in relevant part, that the people have a right “to be secure in their persons, houses, papers, and effects, against unreason­able searches and seizures. . and that such right “shall not be violated and no Warrants shall issue, but upon probable cause. .

Since the adoption of the Bill of Rights in 1791, a large body of law has grown up around the interpretation in various fact situations of what “unreasonable” means, and what “probable cause” means, including opinions of the United States Supreme Court and lower federal and state courts. By prior law, property taken by the police to be used in evidence is not admissible in a criminal proceeding against the accused if the seized evidence has been taken in contravention of the Fourth Amendment or the cases interpret­ing it. A number of exceptions to the require­ment of having a warrant to search have been articulated by the courts (for example, no warrant is necessary to search a person who commits a crime in the presence of an officer of the law, or a person who is under arrest). Similar types of exceptions have been articulated to the question of the sufficiency of the facts necessary to secure a warrant, where a warrant is required before a search of premises can be lawfully made. If the facts supporting the warrant are not legally suf­ficient, then the warrant is unlawful and anything seized is inadmissible in a criminal proceeding.

The question arises, then, whether drones may be used in law enforcement to fly over a person’s property to view what is on the prop­erty, for instance, as a basis to secure a warrant to enter the property in order to seize evidence to be used in a criminal proceeding. There have been two cases that bear on this question.

In Summers of California v. Ciralo, 487 U. S. 207 (1986), the Supreme Court had before it a case where the police had received an anony­mous tip that the accused was growing marijuana in his back yard. The back yard was enclosed by a high fence that precluded viewing what was in the back yard from ground level. A police offi­cer in an airplane flew over the property from a

1,0 foot altitude while in navigable airspace and was able to clearly identify the marijuana from the air. A search warrant was obtained and executed the next day, seizing the marijuana plants on the private property.

Prior law had established that a police offi­cer may look and see whatever is in plain view, and he may use this as a basis to either seize unlawful contraband or as a basis for a lawful search warrant. The court held that since the marijuana was in plain sight, using the naked eye, from a place in the navigable airspace (the NAS, which is in the public domain), the accused had no reasonable right of privacy. The view by the naked eye of the backyard was reasonable (as the same would be from a high truck or double decker bus from the street). Other specific legal analyses of the case are not permissible here, but suffice it to say that the court held that the over flight of the accused’s back yard and the viewing of it from 1,000 feet in the NAS, was a legitimate basis for the search warrant.

In the second case, Florida v. Riley, 488 U. S. 445 (1989), a similar situation was before the Supreme Court. The accused had a green­house on his private property, the contents of which could not be viewed from any ground level public place. Relying on an anonymous tip that marijuana was being grown on the prop­erty, a county sheriff using a helicopter circled twice over the subject’s property at 400 feet. Through openings in the roof of the greenhouse, the officer could see with the naked eye growing plants that he identified as marijuana. A search warrant was obtained and the premises were searched, and the marijuana plants were seized as evidence.

The court held, along the lines of Ciralo above, that helicopter flights at 400 feet above people’s property are routine, and that what is viewable from that position in the NAS is not protected under the Fourth Amendment, in spite of FAA regulations limiting low flight for fixed – wing aircraft in the navigable airspace. The FAA limitation is based on safety considerations, not

privacy expectations, and does not necessarily apply to helicopters.

Both of these cases rely on the police being where they were legally allowed to be, on the “plain view” doctrine that allows police to see what is there to be seen using the naked eye, whether through a window or otherwise, and that they were using normal and routinely used aerial vehicles from which the sightings were made. The use of drones, however, is not normal or routine in many venues, and drones frequently use specialized imaging and sophisticated tech­nologies, like infrared and thermal applications, to view the ground. There will no doubt be many other distinctions that will be argued under Fourth Amendment principles as UAVs become more prevalent and are increasingly used by the government. At this point, it is still safe to say that the incorporation of UAV technology in the NAS, as projected by the recent statutory law and by the plans of the FAA, will result in many legal contests between citizens and the government.

Endnotes

1. P. L. 108-176.

2. Atlanta, Boston, Charlotte, Chicago, Cleveland, DC Metro, Denver, Detroit, Houston, Las Vegas Valley, Memphis, Minneapolis-St. Paul, New York/Philadelphia, Northern California, North Texas, Orlando, Phoenix, Seattle, South­ern California, South Florida, Tampa.

3. Multilateration is a means of navigation using the mea­surement of the difference in distance between two or more stations at known locations that broadcast signals, enabling the determination of a “fix.”

4. Portland, OR; Anchorage; Kansas City, MO; New Orleans; Pittsburgh; San Francisco; Cincinnati; Cleveland; and Andrews Air Force Base.

5. In 2009, 50 percent synthetic fuel blends were created from a process known as Fischer-Tropsch synthesis. In 2011, a biofuel known as Hydroprocessed Esters and Fatty Acids (HEFA) can be mixed up to 50 percent with standard kerosene.

6. As a result of the Freedom of Information suits filed against the DOT, the FAA released information in April 2012 disclosing the identities of holders of Certificates of Authorization (COAs) and Special Airworthiness Certificates in the Experimental Category (SAC-EC).