Drones and the Fourth Amendment

March 03, 2014

By Keffer Hirschauer LLP

Drones were recently used by the Washington Nationals to observe spring training and were used by Martin Scorsese in the filming of the movie “The Wolf of Wall Street.” See Read more: http://www.politico.com/story/2014/02/federal-aviation-administration-faa-drones-103800.html#ixzz2u6cf9YIr (last visited February 22, 2014). With that in mind, it would seem only a matter of time before they are regularly employed by local law enforcement agencies for enforcement and surveillance. Whether a useful tool or not, drones would be subject to the same constitutional protections embodied in the Fourth Amendment as any other law enforcement actions/equipment.

But how are drones affected by the Fourth Amendment? In 1986, the United States Supreme Court decided, in California v. Ciraolo, 476 U.S. 207 (1986), that an individual’s private property is not protected by the 4 th Amendment from aerial surveillance so long as the aircraft is in navigable airspace. However, in Kyllo v. United States, 553 U.S. 27 (2001), the High Court ruled that the use of infrared cameras to identify marijuana inside a suspect’s house did in fact violate the Fourth Amendment. From these landmark cases, it would seem that drones could certainly fly into non-navigable airspace and certainly be equipped with highly-sophisticated cameras. However, the use of infrared or better-than-the-eye technology may lead to constitutional violations.

As this new area of technology develops and is embraced by law enforcement, those who protect individuals civil rights and liberties will be watching closely. If you believe your Fourth Amendment or other constitutional rights have been violated, contact Keffer Hirschauer LLP today at (317) 857-0160.