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Drones and the Fourth Amendment

Posted on in Criminal Law

criminal defense, drones, fourth amendment, McHenry County criminal defense attorney, unmanned aerial vehicles, police drone use, unreasonable search and seizure, GPS trackerDrone use by the military has been one of the more controversial topics in recent years, and that controversy is set to spill over into the domestic sphere as these unmanned aerial vehicles become cheaper and more readily available to local law enforcement. While the federal government currently maintains strict control on airspace through the Federal Aviation Administration, the government has been relaxing its restrictions on police drone use, something which some states are already taking advantage of according to a report by the American Civil Liberties Union.

This potential expansion of drone use by police forces has led to people raising concerns about the Fourth Amendment implications. The Fourth Amendment protects people from unreasonable searches and seizures by requiring a warrant for most searches. The issue is that the Supreme Court has repeatedly held that flying over a property is not a search.

The Flyover Exception

The flyover exception to the Fourth Amendment was initially created in the 1980s in the case California v. Ciraolo. In that case, the police flew over the defendant's property at an altitude of 1,000 feet and identified marijuana plants on the property. The court ruled that a defendant could not have reasonably expected that something visible with the naked eye from the public airways would be kept private. The court upheld this argument a few years later in the case Florida v. Riley, which involved a police helicopter identifying marijuana at an altitude of 400 feet. These cases seem to create a fairly strong argument for the use of warrantless drone searches, but that may not be the case. The fact that these searches all involved manned aircraft may end up being constitutionally significant.

Preserving the Fourth Amendment

One of the most recent Fourth Amendment cases handled by the Supreme Court was the case of US v. Jones. The case related to the legality of placing a GPS tracker on a suspect's car without a warrant, which the court ultimately decided was a Fourth Amendment case. They did this while acknowledging that had the police department simply assigned someone to tail the car, that would have been legal without a warrant. The fact that changing technology made it easier to perform the search was considered significant. However, the court has explicitly pointed out that attaching the GPS required the police to trespass onto the person's property, and therefore based its decision on that trespass, refusing to give an opinion on whether a warrant would be required if the police did not have to trespass. The use of drones may force them to confront that question.

If you have recently been charged with a crime and believe that the police violated your Fourth Amendment rights, contact an experienced McHenry County criminal defense attorney today. Our firm is here to help you make sure that your rights are protected.
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