According to a June 2012 AP
report, Deputy Chief Randy McDaniel of Montgomery County (Texas)
Sheriff's Office ruled out mounting some less lethal options tear gas
canisters and rubber bullets on that law enforcement agency
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 cant 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 Id 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.
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 wont
release the cows until he's paid for the feed theyd eaten • When
police intervene, theyre 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 Id 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 dont 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
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 probably
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.
