Not all that long ago, only the military had drone technology. Today, drones are affordable enough that people are using them in a wide range of activities, from filmmaking to land developing. People even buy them as toys for their children. In this situation, it should not come as a surprise that police departments have begun using drones.
According to a recent news report, the police department in Detroit suburb of Troy has a 10-person unit devoted to drones. According to the report, the police use the devices as extra eyes in the sky to survey the scenes of accidents, scan neighborhoods for suspects in emergency situations, and to look for missing persons. They also use them for surveillance of suspects in non-emergency situations.
Troy police said they used a drone to take video in a recent fatal shooting at a gas station. The video will be used as evidence in an upcoming trial.
The proliferation of drones raises a lot of difficult legal issues. In past Supreme Court cases involving aerial surveillance, courts have decided matters based on whether the defendant had a reasonable expectation of privacy. For instance, in a case where police flew a helicopter over a man’s house in order to gather evidence that he was illegally growing cannabis plants in his backyard, the court found the man had no reasonable expectation of privacy because the plants were in plain view under navigable airspace. Because he had no reasonable expectation of privacy, he could not say the warrantless search violated his constitutional rights.
The legal basis for drone searches is different because the Federal Aviation Administration regulates drones differently from manned aircraft. For one thing, the FAA allows drones to fly much lower than planes or helicopters, which raises a lot of issues about where the “navigable airspace” ends, and when a person has a reasonable expectation of privacy. Theoretically, a police department could use a drone to gather video evidence by looking inside a suspect’s second-story window, but this would seem to be a violation of the person’s reasonable expectation of privacy. The Supreme Court has yet to rule on such a case.