According to a June 2012 AP report, Deputy Chief Randy McDaniel of Montgomery County (Texas) Sheriff’s Office hasn’t ruled out mounting some less lethal options — “tear gas canisters and rubber bullets” — on that law enforcement agency’s newly-purchased $300,000 unmanned aircraft.
While it’s highly unlikely that any police agency will be mounting any sort of weapon on their UAVs in the near future, police UAVs in our airspace are most definitely being equipped with video surveillance capabilities. Many civilians shudder at the concept, and consequently we may have a five-way, mid-air collision between the U.S. Congress, the courts, the Constitution, a cattle rustler, and cameras mounted on police UAVs.
“Wait, what? A cattle rustler?” you ask? Read on, my friends.
Recent, Relevant, Current Events
Just a couple of weeks ago, North Dakota District Judge Joel Medd effectively “approved” the use of UAVs for police video surveillance when he denied Rodney Brossart’s request to have charges against him dropped.
Brossart, you may recall, got into a 16-hour standoff with police after refusing to release six cows that had wandered onto his property. During the standoff, SWAT Commander Bill Macki accepted an offer by the Department of Homeland Security to use one of its video-camera-equipped Predator UAVs to ensure that an attempt to apprehend Brossart could safely be made.
Brossart was then arrested — and the six cows returned to their rightful owner — in what Brossart’s lawyer contends is a case rife with Constitutional violations.
“Brossart’s lawyer argued that law enforcement’s ‘warrantless use of [an] unmanned military-like surveillance aircraft’ and ‘outrageous governmental conduct’ warranted dismissal of the case,” according to an article in U.S. News.
Meanwhile, as the Brossart case moves forward, there have been many recent moves on the Congressional side of things as well.
The Association for Unmanned Vehicle Systems International (AUVSI) recently reported that no fewer than five pieces of legislation addressing ‘guidelines’ and/or ‘oversight’ on law enforcement use of UAVs are up for consideration in Congress. The one getting the most attention in the press was proposed by media darling (or devil, depending on the cable news channel you watch) Rand Paul, but there are a host of others.
With names like the “Preserving Freedom from Unwarranted Surveillance Act” and the “No Armed Drones Act” — and support from legislators on both sides of the political aisle — there is almost certainly going to be a vote on one (or more) of these bills addressing privacy concerns citizens have with regard to video cameras on police UAVs.
Guidelines and Oversight Do Exist
While Congress contemplates passing new laws, we should note that the Federal Aviation Administration is the final arbiter of who can occupy American airspace, and what they’re allowed to do in that airspace.
No matter what some critics may breathlessly declare, a police agency can’t just buy a model airplane, hang a video camera under the fuselage, and start flying over people’s back yards. Any party — police or private entity — must first obtain a Certificate of Authorization (COA) from the FAA, and subsequently comply with a variety of FAA regs governing the use of UAVs.
Furthermore, two organizations have already issued guidance on the matter — the abovementioned Association for Unmanned Vehicle Systems International as well as the International Association of Chiefs of Police.
Just a couple of weeks ago, the IACP Aviation Committee released its approved guidelines for UAV use. You can read the entire document, chapter and verse, here, but allow me to highlight some of the important points related to the use of video cameras.
Regarding warrants, IACP said that “where there are specific and articulable grounds to believe that the UA will collect evidence of criminal wrongdoing and if the UA will intrude upon reasonable expectations of privacy, the agency will secure a search warrant prior to conducting the flight.”
Regarding the retention of collected images, IACP stated, “Unless required as evidence of a crime, as part of an on-going investigation, for training, or required by law, images captured by a UA should not be retained by the agency.”
Regarding general interaction with the public, IACP recommends that agencies engage civil liberties advocates in their community early in the planning process. IACP also recommends taking steps to “assure the community that it values the protections provided citizens by the U.S. Constitution. Further, that the agency will operate the aircraft in full compliance with the mandates of the Constitution, federal, state and local law governing search and seizure.
Meanwhile, AUVSI offers a ‘Code of Conduct’ it hopes “will contribute to safety and professionalism and will accelerate public confidence in these systems.”
The organization specifically addresses UAV video surveillance of suspected criminal activities in several passages, stating, “We will respect the privacy of individuals” and “We will respect the concerns of the public as they relate to unmanned aircraft operations.”
In Addition to Video, Myriad Uses
Regular readers of this space will recall that I recently wrote that this technology has nearly limitless potential, so before we proceed any further on the issues related to airborne video, let’s consider some of the other uses for police UAVs I’d outlined in that column.
Search and Rescue — Perhaps the most obvious use for a UAV in law enforcement is for search and rescue operations. In many cases, UAV assets can be easily carried in the trunk of a patrol vehicle, and in the hands of a skilled operator, they can be deployed and airborne before responders arrive at the scene.
Traffic Investigations — One of the least obvious applications is the use of UAVs during the investigation of traffic collisions. Using electro-optical sensors with photogrammetry software, the scenes of fatal vehicle collisions can be cleared in a fraction of the usual time.
HAZMAT Incidents — In the event of a hazardous material (HAZMAT) spill, atmospheric sensors can be attached to the vehicle and carried into the cloud or spill. Obtaining readings remotely keeps first responders from exposure to harmful substances.
Narcotics Investigations — Whether to gather descriptions for a search warrant, or to locate a remotely-located marijuana plot, a UAV could be used by your narcotics unit.
It is safe to say, then, that these amazing machines have a lot to offer. Okay, let’s proceed.
A ‘Reasonable Expectation’ of Privacy
In that column, as I so often do when I write on the topic of law enforcement UAVs, I connect with my friend Curtis Sprague from Tactical Electronics, makers of the RAPTR, a small UAV that can be equipped with any/all of the abovementioned sensors.
I connected with Sprague again for today’s discussion on citizens’ privacy concerns, and asked him as well about policies and procedures to ensure those questions are fully answered and privacy rights fully protected. Sprague correctly pointed out that it all comes down to reasonable expectations.
“If there is determined to be a reasonable expectation of privacy, a warrant must be issued,” said Sprague, a 20-year law enforcement veteran at the municipal, state, and Federal levels.
“If there is no reasonable expectation of privacy and something is occurring in plain view, no warrant is necessary. We simply call this police activity... patrol. Officers are driving around in cars, on bicycles, on horses, in full sized aircraft, and on foot looking at things. Patrolling.”
Let’s contemplate the case of the abovementioned cattleman from North Dakota. According to reports, here’s what went down in June 2011.
• Six cows wander onto Rodney Brossart’s 3,000-acre property near Lakota
• Brossart says he won’t release the cows until he’s paid for the feed they’d eaten
• When police intervene, they’re chased away by Brossart’s well-armed family
• During the ensuing 16-hour standoff, SWAT operators observe the compound
• DHS offers up its Predator B drone from nearby Grand Forks Air Force Base
• Video footage from the UAV is beamed to a handheld device held by the Sheriff
• The subjects are determined to have disarmed, and SWAT effects several arrests
• Brossart is apparently TASERed during the incident, but no gunshots are fired
• Brossart faces a handful of felony charges, which Judge Medd says still stand
When in the above sequence of events can we agree that Brossart lost his “reasonable expectation” of privacy?
Probably when his three sons, allegedly armed with rifles, chased sheriff’s deputies away... resulting in the issuance of an arrest warrant, agreed?
In arrest warrant situations, the arrest warrant itself provides the ability to search the premises for the defendant and would allow the use of the airborne-mounted video systems. As soon as the Brossart family’s alleged criminal activities became a tactical situation, you have an exigent circumstance, probable cause, and no “reasonable expectation” of privacy.
Welcome to Air Support
It’s impossible to know whether or not Brossart will ever see the inside of the United States Supreme Court in Washington, DC, but it seems clear to me that his attorney would like to take the case there. Regarding the issue of evidentiary admissibility — which I believe is the direction Brossart’s attorney is going in the appeals process — I’d strongly suggest you revisit Terry Dwyer’s article on the legal considerations in the use of digital video in criminal cases.
Regarding the use of UAV video in a tactical or investigative situation, we don’t have a lot of legal precedent at present — after all, one report on the Brossart case is entitled First Man Arrested With Drone Evidence Vows to Fight Case. Until we get a SCOTUS ruling on UAV video, we may consider looking to cases such as Florida v. Riley to guide us. Here’s the Riley case, in short strokes.
• Police in Florida get a tip that a man is growing pot in a greenhouse in his yard
• The sheriff, unable to observe the grow op, uses a helicopter for a better look
• Looking through a hole in the roof, the structure appears to contain pot plants
• A warrant was obtained, the property raided, the man arrested, and the case tried
• The man argued that the aerial search violated his “reasonable expectation of privacy” and although lower courts initially agreed, the Supreme Court ultimately supported this airborne police surveillance, stating that law enforcement flew “at an altitude legally permissible to the public, and in the course of that, observed a greenhouse which was clearly visible to the naked eye”
Just a few years before Florida v. Riley was decided, the movie Blue Thunder came out. The use of airborne police video surveillance is so central to the story that the video camera on that Aérospatiale Gazelle was practically its own character.
In one scene, the main character (Officer Frank Murphy) is getting chewed out by the boss (Captain Jack Braddock) for pointing the chopper’s video camera into a nice-looking woman’s living room.
“To jog your memory, officer Murphy,” Braddock barked, “there are people in this community who do not like police officers. They do not like the idea of helicopters flying over their homes, peeking in their windows.”
True then, true now.
Police are expected to operate responsibly in all aspects of police work, the use of video surveillance cameras included.
“Police officers are held accountable by the public and by the courts every day with regard to the Fourth Amendment,” Sprague told me. “The proliferation of UAVs does not change that. They still are not allowed to violate rights of privacy. Putting these types of technologies onboard unmanned aircraft does not change anything.”
Policies governing the collection of video surveillance from airborne units — both manned and unmanned — will necessarily evolve as technology evolves.
“You cannot get into any UAV privacy conversation,” lamented Sprague, “without hearing someone say, ‘When I’m in my back yard...’ Now, I don’t know what these people are doing in their backyard that they need so desperately to keep private, but, apparently it’s an issue. That is going to have to be handled on a case by case basis, taking into consideration the facts of each case.”
Sprague added that the problem is that most of the public has not been educated on the Fourth Amendment and subsequent case law.
“Most citizens think that because they are in their yard, on their property, the police cannot look at them. This is not true.”
Inside your house when no probable cause exists, absolutely, citizens have a reasonable expectation of privacy from a video camera mounted to a police UAV.
Wandering around your backyard, after you’ve allegedly committed a handful of criminal activities?
Smile, you’re probably on candid camera.
