October 18, 2017

Drone Alone

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

-The Fourth Amendment

I saw a mildly disturbing news story on Fox this AM, which is to say, slightly horrified with a soupçon of ambivalence. The story, online as UAV spots stolen construction equipment in Cecil County, tells of a successful, multi agency apprehension of the perpetrator of at least a tri-state crime spree. Stolen goods recovered during this operation amounted to $394,000. Not chump change. Much of the property has been returned to its rightful owners. No problems there!

The ambivalence comes from the fact that while I’m glad this guy was caught and hopefully prosecuted to the full extent of the law, what bugs me is the sequence of events that lead to their arrest. The New Jersey State Police had a suspect. The suspect’s domicile was not visible from the road. A warrant was obtained on the basis of evidence produced by a UAV overfly of the property, but what gave them the right to do that? Turns out that much of the stolen goods were stashed behind a barn, or big shed. My question is: What’s the difference between flying a drone over the barn and simply sending an officer in to walk around the barn for a look see?

Well, sending an officer in without a warrant to search for stolen goods is an illegal search. Any evidence he found of wrong doing would be thrown out of court as “fruit of the poisoned tree”. Now, suppose I just dangle him from a crane or a helicopter and swing him around the backside of the barn. Better? His feet never touched the ground! Problem solved? Hardly!

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Is the Fourth Amendment mitigated by the fact that the aircraft was unmanned? Or does the fact that an operator is at the controls, looking through the camera make that point moot? Had the overflight been accidental, I can see the evidence being totally admissible. Next time, throw some tarps over the stolen goods, knucklehead! But the drone was flying over the property specifically because there was a “suspect”, yet without enough evidence or probable cause to obtain a warrant. You see my dilemma here? If you’re in your helicopter using your Forward Looking Infra Red because there’s a lost child in the woods, and happen across a marijuana hothouse, that’s one thing. But isn’t warrantless, unmanned electronic eavesdropping going just a bit too far? At what point does this become an “unreasonable search”?

The fact that law enforcement did not enter the property without first obtaining a warrant means they recognized that one was necessary. Although I am not a lawyer, nor do I play one on TV, it seems to me that the use of a drone was a mere legal fiction to provide probable cause for the warrant.

If I were on this guy’s legal team, I would beat the Fourth Amendment like a rented mule! Still, I’m glad law enforcement put an end to this crime spree. I just wish they’d found a better way to do it.

Thus, the ambivalence.

Mike a.k.a. Proof writes at Proof Positive