Drone aircraft, otherwise known as unmanned aerial vehicles (UAV), have been used by the military in times of war for more than 60 years, but their capabilities for purposes of criminal investigation have only recently been explored. Drones are best known for their ability to conduct close-up aerial surveillance and have recently been employed to guard our nation’s borders.

Surveillance drones may be equipped with sophisticated computerized imaging technology to obtain detailed photographs of terrain, people, homes and small objects. Advanced drones are capable of deploying a diverse range of computerized systems, advanced imaging, infrared sensor systems, heat sensors, GPS navigational systems, movement sensors and even automated license plate readers.

In the near future, drones may be deployed with facial recognition technology to remotely identify individuals in public areas such as parks, fields and other outdoor sites. Synchronization of cellphone tracking, GPS technology and drone surveillance has been perfected in war areas, so it is foreseeable that the same linked science may soon be available and affordable in the war on drugs, human trafficking, domestic counterterrorism and other civilian-based law enforcement endeavors. What standard will the courts impose upon law enforcement for the use of such technology and resulting evidence in civilian courts? The answer has been intimated in several cases and will be addressed in this article.

Government Regulations

Successful routine deployment of drone aircraft was not accomplished until the last 20 years. Because drones fly in airspace used by commercial and private aircraft regulated by the Federal Aviation Administration, the FAA regulates and controls the proliferation of licensing drones for domestic use and sets the minimum standards for air safety.

Congress has sought to integrate drones into the civil national airspace system, and on Feb. 14, Public Law 112-95, the FAA Modernization and Reform Act of 2012 was enacted. The act mandates the FAA to develop a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system as soon as practicable, but not later than Sept. 30, 2015. Acknowledging the utility and cost effectiveness of the small-drone industry, the law defines “small unmanned aircraft” as weighing less than 50 pounds. The FAA will promulgate detailed rules concerning drone operation in the United States, focusing generally on the safety of the aircraft.

Government vs. Private

In Katz v. United States , the U.S. Supreme Court held that “what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”

The Fourth Amendment of the U.S. Constitution prohibits certain government intrusions into an individual’s privacy, but it does not act as a bar against violations of privacy committed by private individuals or entities. Various specific federal and state statutes do provide remedies against violations by private individuals against individual privacy. This is significant because as drone technology evolves and becomes less expensive, private entities may deploy this technology for profit. For instance, it has been reported that “paparazzi drones” are in production to track and photograph celebrities, and private detective agencies have used drones to track their targets. Moreover, Google has deployed street-level drones in other countries to supplement the images of its “street view” map feature. It is probably inevitable that criminals and others with sufficient resources may one day use drones for purposes of stalking and harassment.

Government Use of Drones

Internet-based advertisements can be found marketing drones for use in police surveillance and searches, fire search-and-rescue missions, and premises, border and perimeter safety and security. It has been estimated that a search with a drone aircraft can take the place of many dedicated ground search teams. There are numerous reports of individuals lost in the wilderness, located with drone craft after conventional searches proved fruitless. Drone craft are particularly useful because they can execute a detailed computerized grid-search of every foot of a several square-mile search area in a matter of minutes. While in operation, the drone feeds high-resolution digital images and GPS locations back to a ground-based search team. All data can be fed through ground-based computer analysis. The data is recorded in the drone and all the information is GPS-logged so it can be located and assessed and transmitted to the ground team to search specific areas.

Drones and Privacy Standards

In 1967, Katz set forth a new analysis to determine when a Fourth Amendment search has occurred: The individual must have manifested a subjective expectation of privacy in the thing searched, and society must be willing to recognize that expectation as reasonable. The first element addresses whether the individual’s conduct has exhibited an actual or subjective expectation of privacy that is demonstrated by whether the individual has shown that he seeks to preserve something as private. The second element looks to whether the individual’s expectation, viewed objectively, is justifiable under the circumstance. A Fourth Amendment search requires satisfaction with the “probable cause” warrant standard unless an established exception applies.

Privacy rights groups have contended that drones present a unique threat to privacy because of their capacity to undertake constant and persistent surveillance heretofore unable to be accomplished without the commitment of extensive law enforcement resources. Usually the commitment of such resources to one case would only occur in the most extraordinary of circumstances. This practical limitation was observed recently by Justice Samuel Alito in his concurring opinion in United States v. Jones , a case involving the warrantless use of a GPS device, when he opined that, “[I]n the pre-computer age, the greatest protection of privacy were neither constitutional nor statutory but practical.”

Others argue that drone technology will continue to evolve, and include integrated advancements in other surveillance technologies, including devices that will enable drones to conduct far more detailed surveillance, such as peering inside high-level windows, through fences, around trees, and even through walls. Small drones may operate in an almost stealth-like manner, making them very difficult to detect. Still others contend that the ability to link facial recognition capabilities on drone cameras to law enforcement’s next generation identification databases that involve the collection of biometric data may impact First Amendment rights, especially for high-profile political dissidents.

Although past Supreme Court cases have held that individuals do not generally have Fourth Amendment rights with respect to aerial surveillance because of the lack of an expectation of privacy from being observed from the air in public, the Jones decision gives a glimpse of the potential for the court to re-examine established Fourth Amendment doctrine in light of emerging aerial surveillance capabilities and other linked intrusive digital technologies. In the past, courts have adjusted Fourth Amendment doctrine to account for the effect of technological change on the reasonable expectation of privacy.

For instance, in United States v. Knotts in 1983, the Supreme Court held that “sense augmenting” devices do not implicate the Fourth Amendment. There, the court determined that police surveillance utilizing the placement of a warrantless beeper radio transmitter device inside a container within defendant’s vehicle did not violate the Fourth Amendment. Although the court determined that the beeper did not violate Knotts’ reasonable expectation of privacy in his vehicle’s movements on the public streets, the court left open whether a warrant may be required in a case involving “more intense surveillance techniques.”

In 1984, in United States v. Karo , the government monitored a beeper in the defendant’s residence, and the court found that the government’s actions constituted a Fourth Amendment search. Similarly, in Kyllo v. United States , the court determined that the government’s use of a thermal imaging device to detect heat signatures of marijuana growth inside a residence required a warrant even though the use of the device did not physically invade the home.

The Supreme Court’s 2012 decision in Jones marks another ripple in Fourth Amendment doctrine. There, the court found that the government’s attachment of a battery-operated GPS device to the underneath of the defendant’s car to gather information of narcotics trafficking was a trespass, and a “search” under Fourth Amendment doctrine. In so doing, the court articulated that the Katz doctrine of reasonable expectation of privacy was not the exclusive test for Fourth Amendment analysis.The Jones court cited the 2009 decision of the New York Court of Appeals in People v. Weaver , which held that under the New York Constitution, the government was barred from using a GPS tracking device to monitor an automobile’s movements for 65 days in the absence of exigent circumstances without a warrant requiring probable cause.

A similar argument had been made concerning the increase and availability of detailed third-party digital data about the personal activities of an individual. Some courts have questioned established Fourth Amendment third-party disclosure doctrine when faced with new technology that captures extensive and detailed information about an individual. In her concurring opinion in Jones , Justice Sonia Sotomayor, opined:

“More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. (Citations omitted). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

Drone technology, when integrated with other high-tech capabilities such as cell tracking, high-resolution picture and video, and infrared, to name a few, may create new challenges for areas in which privacy and technology merge, thus implicating significant Fourth Amendment interests and calling into question well-established common law privacy rights. With such enhanced capabilities, the courts will be faced with the question of what is the proper standard to impose upon law enforcement use of this integrated and evolving technology.

This article first appeared in the New York Law Journal, a Legal affiliate. •

Peter A. Crusco is the executive assistant district attorney of the investigations division, Office of the Queens County District Attorney. The views expressed herein are the author’s and do not necessarily reflect the policies or views of the office.