Fourth Amendment

Government Drone Overflights May Violate Fourth Amendment, Trigger Exclusionary Rule

An interesting Michigan appellate decision.

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From Long Lake Township v. Maxon, decided March 18 by the Michigan Court of Appeals (Judge Kathleen Jansen joined by Judge Amy Ronayne Krause):

In 2008, the parties litigated an alleged violation of the Long Lake Township Ordinance by defendants. That proceeding culminated in a settlement agreement …. In 2018, plaintiff filed the instant civil action, alleging that defendants had "significantly increased the scope of the junk cars and other junk material being kept on their property" since entering into the 2008 Agreement, and that such activity "constitut[ed] an illegal salvage or junk yard" in violation of the Long Lake Township Zoning Ordinance. In support of these allegations, plaintiff attached aerial photographs taken in 2010, 2016, 2017, and 2018. These photographs showed a "significant increase in the amount of junk being stored on [d]efendants' property."

Defendants moved to suppress the aerial photographs and "all evidence obtained by [p]laintiff from its illegal search of their property." Defendants argued that the aerial surveillance of their property, and the photographs taken by the drones of their property and the surrounding area, constituted an unlawful search in violation of the Fourth Amendment.

Defendants argued that the instant case is distinguishable from precedent involving manned aerial surveillance because, unlike fixed wing aircraft and helicopters which "routinely fly over a person's property," drones are equipped with "high power cameras" and do not operate at the same altitudes as airplanes and helicopters. Additionally, defendants argued that a person can reasonably anticipate being observed from the air by a fixed wing aircraft, but aerial surveillance from a drone flying over private property and taking photographs is not a reasonable expectation. Moreover, defendants noted that plaintiff's drone surveillance did not comply with Federal Aviation Administration (FAA) regulations. We note that photographs in the record clearly show that very little, if any, of defendants' property is visible from the ground, due to a combination of buildings and trees….

This is ostensibly a civil proceeding…. However, the Fourth Amendment may protect parties from unreasonable searches and seizures committed by a governmental entity in civil cases, if the civil case can be considered "quasi-criminal" and the search or seizure was committed by the governmental entity pursuing the action. Kivela v. Dep't of Treasury (Mich. 1995) (discussing a test for the admissibility of evidence illegally seized by police for a criminal proceeding in an independent subsequent tax proceeding); People v. Gentner, Inc. (Mich. App. 2004); see also Camara v. Muni. Court of City and Co. of San Francisco (1967) (holding that administrative searches implicate the Fourth Amendment even if the searches are not criminal in nature, albeit subject to less exacting requirements to establish probable cause)….

The purpose of this litigation is to obtain a declaratory judgment that defendants' use of their own property is illegal. Considering the great historical importance placed on the freedom to use one's own property, and the fact that the consequences of this action may entail far more than merely the imposition of money damages, we conclude that this is the kind of proceeding to which the Fourth Amendment may apply. Further supporting this conclusion is MCL 259.322(3), which expressly prohibits the use of a drone to "capture photographs, video, or audio recordings of an individual in a manner that would invade the individual's reasonable expectation of privacy."

In Kyllo v. United States (2001), Justice Scalia [wrote]:

… The present case involves officers on a public street engaged in more than naked-eye surveillance of a home. We have previously reserved judgment as to how much technological enhancement of ordinary perception from such a vantage point, if any, is too much. While we upheld enhanced aerial photography of an industrial complex in Dow Chemical, we noted that we found "it important that this is not an area immediately adjacent to a private home, where privacy expectations are most heightened." …

Critically for the instant matter, the Court opined that mere existence and availability of technological advancements should not be per se determinative of what privacy expectations society should continue to recognize as reasonable. Although again discussing only privacy within the home, the Court emphasized that the homeowner should not be "at the mercy of advancing technology" that might eventually be able to see directly through walls outright. The development of historically-novel ways to conduct unprecedented levels of surveillance at trivial expense does not per se reduce what society and the law will recognize as a reasonable expectation of privacy.

In California v. Ciraolo (1986), the United States Supreme Court determined "whether the Fourth Amendment is violated by aerial observation without a warrant from an altitude of 1,000 feet of a fenced-in backyard within the curtilage of a home." In that case, a law enforcement officer used an airplane, flown at an altitude of 1,000 feet, to observe the respondent's yard, which was next to the respondent's home and enclosed by a fence. The officer identified marijuana plants in the respondent's yard and used a camera to photograph the area, and the images were used to secure a warrant…. The Court determined that the officer's observations took place within public navigable airspace, in a physically nonintrusive matter, and that "[a]ny member of the public flying in [the] airspace who glanced down could have seen everything that these officers observed." The United States Supreme Court concluded, "[i]n an age where private and commercial flight in the public airways is routine, it is unreasonable for respondent to expect that his marijuana plants were constitutionally protected from being observed with the naked eye from an altitude of 1,000 feet."

Only a few years later, in Florida v. Riley (1989), the United States Supreme Court held, in a plurality opinion, that police observation of a greenhouse, located in respondent Riley's curtilage, from a helicopter at an altitude of 400 feet did not violate the Fourth Amendment….

As defendants tacitly concede, Ciraolo and Riley establish that defendants could not have reasonably expected the activities and items on their property to be protected from public or official observation made by a human being from the publicly navigable airspace. Conversely, unrefuted photographic exhibits of defendants' property taken from the ground seem to establish a reasonable expectation of privacy against at least casual observation from a non-aerial vantage point. We conclude that; much like the infrared imaging device discussed in Kyllo; low-altitude, unmanned, specifically-targeted drone surveillance of a private individual's property is qualitatively different from the kinds of human-operated aircraft overflights permitted by Ciraolo and Riley. We conclude that drone surveillance of this nature intrudes into persons' reasonable expectations of privacy, so such surveillance implicates the Fourth Amendment and is illegal without a warrant or a traditional exception to the warrant requirement.

Although noncompliance with FAA regulations does not establish a Fourth Amendment violation, such regulations are relevant to what a person might reasonably expect to occur overhead. Persons may, absent extraordinary circumstances, reasonably expect the law to be followed, even if they know the law is readily capable of being violated.

The FAA regulations require drone operators to keep drones within visual observation at all times, fly drones no higher than 400 feet, refrain from flying drones over human beings, and obtain a certification. Such rules reflect the fact that drones are qualitatively different from airplanes and helicopters: they are vastly smaller and operate within little more than a football field's distance from the ground. A drone is therefore necessarily more intrusive into a person's private space than would be an airplane overflight.

Furthermore, unlike airplanes, which routinely fly overhead for purposes unrelated to intentionally-targeted surveillance, drone overflights are not as commonplace, as inadvertent, or as costly. In other words, drones are intrinsically more targeted in nature than airplanes and intrinsically much easier to deploy. Furthermore, given their maneuverability, speed, and stealth, drones are—like thermal imaging devices—capable of drastically exceeding the kind of human limitations that would have been expected by the Framers not just in degree, but in kind.

Although the United States Supreme Court rejected the ancient understanding that land ownership extended upwards forever, landowners are still entitled to ownership of some airspace above their properties, such that intrusions into that airspace will constitute a trespass no different from an intrusion upon the land itself. Drones fly below what is usually considered public or navigable airspace. Consequently, flying them at legal altitudes over another person's property without permission or a warrant would reasonably be expected to constitute a trespass.

We do not decide whether nonpermissive drone overflights necessarily are trespassory, because we need not decide that issue. Although a physical trespass by a governmental entity may constitute a violation of the Fourth Amendment, a trespass into an open field might not implicate the Fourth Amendment. Furthermore, we think there is little meaningful distinction for present purposes between "just inside the property line" and "just outside the property line."

We decide this matter based upon defendants' reasonable expectation of privacy—critical to which is that any reasonable person would have expected a low-altitude drone overflight to be trespassory and exceptional, whether the drone flew as high as a football-field length or flew directly up to an open bathroom window. The Legislature has already stated that drones may not be used to violate a reasonable expectation of privacy, MCL 259.322(3), or to perform an act that would be illegal if performed by the operator in person, MCL 259.320(1)….

We also observe that plaintiff's warrantless surveillance was totally unnecessary. The parties could easily have—and likely should have—included a monitoring or inspection provision in their settlement agreement. Aside from that, as the United States Supreme Court observed, the quantum of evidence necessary to establish probable cause to conduct an administrative inspection is more than "none," but is less than what might be required to execute a criminal search warrant.

By plaintiff's own account, it had concrete evidence, in the form of unrelated site inspection photographs and complaints from defendants' neighbors, that defendants were violating the settlement agreement, violating the zoning ordinance, and creating a nuisance. Our holding today is highly unlikely to preclude any legitimate governmental inspection or enforcement action short of outright "fishing expeditions." If a governmental entity has any kind of nontrivial and objective reason to believe there would be value in flying a drone over a person's property, as did plaintiff here, then we trust the entity will probably be able to persuade a court to grant a warrant or equivalent permission to conduct a search….

Judge Karen M. Fort Hood dissented, arguing that Ciraolo and Riley were controlling here, and Kyllo didn't apply because drones were indeed in common use:

[D]rones are generally widely available to the public {[t]here were 873,144 drones registered with the FAA as of February 2021}, there is reason to believe that the public commonly flies them at altitudes of 400 feet and below, and there is no evidence in this case that the drone in question was flying at a particularly invasive altitude or in a particularly invasive manner, or that the drone contained or used any particularly invasive technology. Similar to Ciraolo and Riley, there is reason to believe that any member of the public could have used their own drone and plainly viewed the property at issue in this case…. I would emphasize the common availability and use of drones by the public in determining whether defendants had a reasonable expectation of privacy in this case. That, in conjunction with whether the drone in this case was lawfully deployed in the public airspace, should control over our policy concerns with respect to how drones may be operated in future cases….

The fundamental principle from both Ciraolo and Riley is that the property observed in those cases was observable by commercial and public aircraft in the publicly navigable airspace, and the fundamental difference between those two cases and Kyllo was that the technology in Kyllo was not something that could be reasonably expected to be employed by members of the public. On that basis, I would conclude that no Fourth-Amendment violation occurred in this case, and I would affirm the trial court's order denying defendants' motion to suppress.

NEXT: Today in Supreme Court History: March 27, 1996

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  1. I’m generally pretty pro-fourth amendment about these things, but I think the following: “The fundamental principle from both Ciraolo and Riley is that the property observed in those cases was observable by commercial and public aircraft in the publicly navigable airspace, and the fundamental difference between those two cases and Kyllo was that the technology in Kyllo was not something that could be reasonably expected to be employed by members of the public. On that basis, I would conclude that no Fourth-Amendment violation occurred in this case” has probably the more reasonable argument.

    1. Maddening failure, stupidity, irrelevance of the lawyer profession, nitpicky debate of controversy with no importance.

      Billions of people lose their privacy. Need social desirability scores to buy a train ticket. Have toilet paper dispensers locked in the park toilet because they are on a registry of wasters of toilet paper. You lawyers do nothing about it.

      How about seizing these platforms in civil forfeiture? How aabout retrieving half the revenue for users for the value of their information? How about arresting the CEO’s for working for China?

    2. Ignoring the wacko ranting, this line of thought is similar to mine. It’s a variation of “plain-sight” doctrine. Things a cop can see from a place a cop is legally entitled to be is not a search. If a cop could hover over your property, then anything he or she sees wouldn’t be a search. But if the cops require assistive equipment to see something, then it’s not in “plain sight”.

      1. I’m not comfortable with that conclusion but mostly because I don’t think the “plain-sight” doctrine was well thought-out. “Plain sight” made sense when it was inherently intermittent and temporary monitoring. A cop walking past your house and happening to see something through the window is very different from stationing a team of cops across the street in rolling shifts to watch through the window 24x7x365 for decades at a time. Yet the “plain-sight” doctrine allows exactly that sort of continuous, intrusive and permanent monitoring.

        “Plain-sight” made sense when there were built-in limits based on manpower and staffing. “Plain-sight” breaks down when technology not only lets you see more than what an unassisted cop could see – it also breaks down when technology lets you see for longer than an unassisted cop could do.

        1. “‘Plain-sight’ made sense when there were built-in limits based on manpower and staffing.”

          The cops can sit in a car out on the street and follow any vehicle leaving your premises to see where it goes. They can also write down all the cars that pull up to your driveway. I don’t think either of those is a horrible invasion of privacy.

          When they attach a GPS monitor to the car to see where it goes, that’s an invasion of privacy.

          1. They can sit in that car on the street – for as long as the department can afford to staff the surveillance. There are practical limits based on the economics of municipal budgets that make long-term surveillance effectively impossible. As a society, we tacitly agreed that such short-term surveillance was acceptable without a warrant. That logic does not automatically extend to a grant of permission for indefinite unmanned surveillance.

            1. ” As a society, we tacitly agreed that such short-term surveillance was acceptable without a warrant.”

              there is no expectation of privacy in things we do publicly.

  2. Like facial recognition and phone tracking, drone surveillance is something we need to work out at a policy level rather than with a bunch of poorly fitting appeals court decisions.

    1. John Carr, there is damn little practical means to apply ordinary public policy to issues related to either airspace or air transport operations. What happens is pretty much what the FAA says it wants. Neither local, state nor federal governments count for anything, except the Congress.

      The FAA may be the most arbitrary federal agency in existence. When court cases challenge FAA decisions about the use of airspace, judges run and hide. I am not aware of any case where any judge has restrained the FAA from violation of any law, no matter how flagrant. Expect every such case to be dismissed for lack of standing.

      Remarkably, even the national administration is nearly powerless to do anything to govern the FAA. The FAA is probably the very-most-favorite agency of members of Congress—it is the one which holds flights for them to accommodate their schedules, and which makes sure they get VIP parking and privileged access through security.

      Congress repays those favors by cutting the administration out of normal oversight of the FAA. Pretty much any change in policy which the FAA doesn’t like must be approved by Congress directly, or it won’t go into effect, even if other laws Congress has passed seem explicitly to require a change.

      1. I must admit, “the FAA secretly runs the government” is probably one of the weirder conspiracy theories I’ve heard in a while, unless … I mean do you have any evidence for this assertion?

        Not that I am a fan, their drone policy was stupid and counterproductive and set the US back years imo.

        1. Aladdin — Sure, reams of evidence. In fact, I had to move this year, and threw about 400 pounds of it in the dumpster.

          I spent most of the 90s as a pretty heavily involved aviation noise activist. Things started when the FAA gave a go-ahead to triple the number of low-level operations over some neighborhoods around Boston. Among them were some which were already shown to be so noisy (by official FAA standards, *65 dB DNL*) that they were unsuitable for residential use. Years-long measurements recorded continuously at permanent noise monitoring sights operated by the airport authority proved my neighborhood was that noisy. Analysis of flight data and distances showed the equipment was working right. So nobody wanted that noise tripled.

          Problem was, the FAA had an EIS for their project. It showed no such thing. Protests that the document was wildly out of sync with existing measurements fell on deaf ears. They just said, “We never rely on measured noise. Our policy is to consider only modeled noise.”

          And then they skewed the models, by programming them to move the airplanes far away from the measurement equipment, and far away from where low-level overflights were actually making neighborhoods unsuitable. With careful photography all that was easy to prove beyond any possibility of doubt. If you can photograph the port side of an eastbound airplane, you must be standing north of it—which disproves any contrary assertion that the airplane is flying north of you, and you just don’t know how to estimate where it is—which is what the FAA tried to say.

          There was lots and lots more of that kind of stuff. The legally required EIS was packed full of it. It was a sham. So I organized 3 affected towns to sue jointly for a new EIS.

          In a way, we won, but not really. Before our suit got heard at all, the flawed EIS was withdrawn, with promise to redo it—but with the project to go forward on schedule, and the new EIS scheduled for completion after the proposed airport work was already finished and in operation. In exchange, the community was promised a new EIS, and participation in extensive joint sessions to discuss issues. But it was take it or leave it. The project was going forward on schedule, no matter what.

          Our attempts to take that to court were rejected for lack of standing. By that time we had learned enough to understand we couldn’t expect otherwise. Some of us had been communicating with other community groups across the country, and we had learned that always happens.

          One legal hurdle was something called the, “Airport Noise and Capacity Act.” If it’s still on the books, that is worth a read. My assertions about no power anywhere but Congress are a summary of what that act says explicitly. Under that act, there is no police power in the nation, nor under and any state or local law, nor in the national executive except the FAA, not even the President (except maybe via national emergency or the secret service, I suppose), which can touch airplane routing, or scheduling, or restrict frequency and numbers of takeoffs and landings, or impose nighttime curfews (a few of those exist because grandfathered), or impose a noise budget, or govern which types of aircraft use an airport.

          I have barely scratched the surface of what I eventually found out. I got appointed to that federally authorized citizens committee to advise the FAA on its project, as it developed for years. Met time and again, and learned a lot from many senior and mid-level FAA officials. Worked with them mostly collegially—some made that difficult. Picked up a lot of technical info about airspace, routing, scheduling, separation, noise methodology, and air traffic control procedures. After I understood better than some of them did (or at least understood some implications of math they wouldn’t admit to understanding), I got encouraged by the airport authority’s MIT-trained noise expert to write a presentation paper for acoustical experts, about technical flaws in the FAA’s noise measurement and estimation methods. I didn’t do it. The damned project was eating my life already.

          One anecdote by way of conclusion. While all that effort was ongoing, my dad found himself in hospital in the DC area. I went to visit him. He had a semi-private room. I got wound up complaining about the FAA, about noise stuff, and a lot more about arbitrary abuses of process.

          After that had gone on for a while, there came a disembodied voice from beyond the roommate’s curtain, “I work for the FAA,” the voice said, sounding aggressive. “Oh shit,” I thought. I hadn’t intended to assail some sick guy about his work. And I really didn’t want to argue if he contradicted me. “And everything you say is true,” he said.

          1. Stephen, did you fly to visit your Dad?

            Would it be easier to move from Dem shithole Boston, to the real America? Have a better life than an urban billionaire on a salary of $100000.

          2. Related to the above comment (but not to the original post) the FAA recently solicited comments on a project to understand why noise complaints are increasing even though models say noise complaints should be decreasing. I hope they got some constructive comments. The docket appears to be dominated by people complaining about noise from their local airports. A lot of people in my area got an email implying they could shut down Hanscom Field if they put a noise complaint on the docket.

            https://www.federalregister.gov/documents/2021/01/13/2021-00564/overview-of-faa-aircraft-noise-policy-and-research-efforts-request-for-input-on-research-activities

            1. And Hanscom Field was there FIRST!!!

              The triangular runway layout is a dead giveaway, and a little digging found that “Hanscom Air Force Base, Massachusetts, began its existence while the United States was considering its entry into the World War II. In May 1941, the Massachusetts Legislature authorized the purchase of a large tract of farmland bordering the towns of Bedford, Lincoln, Concord and Lexington, Mass., for a Boston Auxiliary Airport. Funds to build the new airport were contributed by the federal government, which had appropriated $40 million to build 250 new civil airports across the United States that could serve for future national defense.

              See: https://www.hanscom.af.mil/About-Us/Fact-Sheets/Display/Article/379480/a-brief-history-of-hanscom-air-force-base/

              Farmland because in the 1940s that was all undeveloped farmland. One runway was eliminated in 1953 with the other two extended, and the base maintained active flight operations until 1973 — then shifting over into the development and acquisition of high tech electronics.

              It was still farmland when Route 128 was built in 1958, as it still was when Route 2 was still the three-lane undivided highway described in _The Paper Chase_.

              All of the people complaining about noise at Hanscom live in houses that weren’t there when Hanscom was opened 80 years ago, they are living on farmland that was developed near an active airport and the people purchased their homes knowing that the airport was there.

              In what was a truly visionary move eighty years ago, Massport established Hanscom as a military/civilian partnership so as to serve as an auxiliary to Boston’s Logan — and unlike most USAF bases, Hanscom was a civilian who championed the Commonwealth doing this.

              So at the turn of the 21st Century, with Logan overwhelmed, Massport started shifting a lot of the general aviation — small private and corporate planes — over to Hanscom. And all the people living on what used to be farmland freaked out.

              Well, what part of “there is an airport there” did they not comprehend? It isn’t like Massport added runways (as they have done at Logan) — there’s actually one less than there was in 1941.

              1. Portland Air Base is contiguous with PDX (Portland International Airport) and they use the same runways and taxiways. Meanwhile, on the other side of the Columbia, there’s a small private airfield that imposed height restrictions on the I-5 bridge over the Columbia, complicating the plans for the Columbia River Crossing, the extensive plan to update and modernize the freeway bridge.

      2. ” I am not aware of any case where any judge has restrained the FAA from violation of any law, no matter how flagrant.”

        Can you cite any cases along such lines that the FAA won? Or are you just not aware of any cases at all regardless of outcome?

  3. Ahem – my best Rev voice:
    “You bitter clingers don’t understand your betters will drone you for your own good.”

    1. Two things: Balloons and monofilament fishing line.

      These drones have four props and if you foul just one, the thing is going down. So sorry, I have a right to have balloons and kites flying in my curtilage…

      1. Balloons and kites have one small problem. They don’t go straight up, they will be pushed down wind and all the drone operator has to do to avoid such a trap is approach your property from up wind.

        My idea is a scale model of the US Navy’s radar guided anti-missile Gatling gun which fires paint balls.

        1. “My idea is a scale model of the US Navy’s radar guided anti-missile Gatling gun which fires paint balls.”

          Might take down a surveillance drone, but you’d have to have some awkward conversations with your neighbors.

          1. Depends on how close the neighbors are.

          2. As I posted below this is a big no no.

            “This is simply wrong and there is no way to sugar coat it.

            There is a law that makes it a federal crime if you would willfully damage or destroy an aircraft, and according to the FAA, a drone is considered to be a civil aircraft. The FAA states that it is a federal crime to shoot down a drone under code 18USC32.”

            1. Hence balloons. Aircraft hitting the ground are their fault.

              1. Great, until a windstorm comes along, and blows your drone-traps free of their moorings, and they drift into the approaches for your local airport.

                1. Failsafe mooring attachments that rip a seam out of the balloon, deflating it.

                  1. No experience with wind, Ed?

          3. What kind of radar return do you think you’d get on a drone?

            1. Depends on the cross section. NORAD occasionally gets radar discrepencies from flocks of birds offshore.

              1. You realize that *one* Canada goose is bigger than a drone?

                1. But it’s bomb payload is much lesser.

            2. Given the (short) range, you’d get a plenty strong return. Remember that while return signal strength is proportional to the cross-sectional area, it’s also proportional to the inverse square of the distance to the target. The fact that it would only need to operate at the range of your property line is your friend. And even though most of a drone is plastic, the electric motors would be quite visible to radar.

              The challenge would be frequency. You’d need something in the millimeter wavelength to resolve such small components. Microwave frequency radar is possible but you can have transparency problems through atmosphere. You might do better with passive infrared detection. Look for the waste heat lost to friction and electrical resistance.

              1. ” Microwave frequency radar is possible”

                Yeah. That’s what fighter planes have. Leaves a distinctive patch of sick grass wherever the radar techs test. Microwave ovens were invented because somebody noticed what was happening to the birds that roosted near the radar emitter.

                1. Percy Spencer invented the microwave oven in 1945 while testing radar magnetrons in a Raytheon lab, when he noticed that a candy bar in his pocket melted. No birds were irradiated, but we can’t say the same for Percy.

                  1. He should have listened to the stories the British experience with radar during the war.

              2. I was thinking not only transparency but also background clutter.

                As to infrared, wouldn’t there also be some heat on the blade tips from the friction with the air? Perhaps not enough to detect, but still there ought to be some.

                1. And don’t forget Sgt. York’s bad habit of targeting bathroom exhaust fans, which it mistook for helicopter blades…

                  https://www.nytimes.com/1984/03/07/opinion/the-gun-that-shoots-fans.html

                  1. You knowledge of weapons systems appears a bit dated, Ed.

    2. “Ahem – my best Rev voice:”

      I lean toward a warrant requirement in most or all of the contexts relevant to this issue.

      Other than that, great comment!

      1. I love 4th Amendment threads. I get to see a (in my opinion) crazy, idiotic libtard agree with me (in your opinion a backward, soon to be extinct clinger). Good times!

        1. “crazy, idiotic libtard”

          I am more than often libertarian. If you wish to use “libtard” to describe that, fire away.

          1. And there goes the moment. By the way, that word doesn’t mean what you think it means.

            1. No two libertarians agree on what the word “libertarian” means, and the other one lost all meaning due to application to anyone and everyone left of Genghis Khan.

  4. The whole concept of “reasonable expectations of privacy” is deeply flawed. As soon as we hear that Google, Facebook, or drone owners might be getting information that we formerly believed private, our reasonable expectation vanishes.

    Reasonable expectations eventually turns all mighty mountains into molehills.

  5. Could the property owners have borrowed Joe Biden’s shotgun and blasted that drone-sucker out of the sky? With the right load, I think the shot would be feasible (but not easy). Clearly they couldn’t have (legally or practically) shot down an overflying airplane. That would be a distinction between airplane overflights and drone overflights that would make more sense to me than “expectation of privacy”. Or maybe if we ever get serious about the 2d Amendment, maybe that IS the basis of an expectation of privacy.

    1. This is simply wrong and there is no way to sugar coat it.

      There is a law that makes it a federal crime if you would willfully damage or destroy an aircraft, and according to the FAA, a drone is considered to be a civil aircraft. The FAA states that it is a federal crime to shoot down a drone under code 18USC32.

      1. 20 year felony for shooting down an unmanned spy plane. Look forward to some jury nullification if the prosecutor lets me onto the jury.

        1. terrorists get to go straight to Gitmo, no trial needed.

    2. “Could the property owners have borrowed Joe Biden’s shotgun and blasted that drone-sucker out of the sky? With the right load, I think the shot would be feasible (but not easy).”

      Better be good at geometry, because if the thing wasn’t over YOUR property when you smack it, you’re just mischieviously destroying property. And if it had an FAA registration number, you can expect a visit from FBI.

  6. Drones fly below what is usually considered public or navigable airspace. Consequently, flying them at legal altitudes over another person’s property without permission or a warrant would reasonably be expected to constitute a trespass.

    That is simply mistaken. Routine operating altitudes for aircraft do not define the boundaries of public airspace. The FAA divides the airspace up—horizontally and vertically—to keep aircraft from colliding. The divisions are based on criteria including types of aircraft, who operates the aircraft, vicinity of other allocated airspaces (there are wide buffers, both horizontal and vertical) and other criteria, some of which are only temporary, such as the transit beneath a runway approach of an LNG tanker.

    In doing that, the FAA exercises jurisdiction not only over the airspace, but over a good deal of what may be constructed on the ground, and even over activities which people may practice on the ground beneath airport approach corridors. Drones fly low because in the FAA scheme of things, that keeps them out of the way of other aircraft flying higher.

    I wish it were otherwise. I wish drones had never been invented. I have seen drones operated to peer into home windows from a foot or two away, by people completely out of sight. But I don’t see how this court’s reasoning about airspace can be squared with either the FAA, or with such now-routine practices as real estate agents creating low-level aerial pictures of properties and neighborhoods.

    1. I live close enough to an airport that controlled airspace descends to ground level. Drones programmed to obey the law refuse to fly once they realize where they are. Perhaps I have a greater reasonable expectation of privacy than the average person.

      1. On the other hand a UVA pilot can simply call up the airport air traffic controller and get permission to fly under most circumstances.

        Drone pilots planning to fly under 400 feet in controlled airspace around airports must receive an airspace authorization from the FAA before they fly. The LAANC capability is available to pilots operating under the Small UAS Rule Part 107, OR under the exception for Recreational Flyers.

        1. The key word is “file a flight plan”.

  7. ” However, the Fourth Amendment may protect parties from unreasonable searches and seizures committed by a governmental entity in civil cases, if the civil case can be considered “quasi-criminal””

    This bastardization of the civil process is a much bigger issue — and, increasingly, governmental entities are using civil procedures to bring criminal charges so as to avoid everything from the _Gideon_ mandate to the exclusionary rule.

    For example, while speeding tickets are now civil offenses in most jurisdictions, you still get arrested if you don’t pay one — how is that not like being “half pregnant”?

    And the worst abuse is probably in the domestic violence restraining orders because the guy has to defend himself against the civil order (usually without counsel) while the judge cautions him that anything he says will be used against him in the concurrent criminal prosecution. It makes a joke out of Gideon.

    1. “And the worst abuse is probably in the domestic violence restraining orders because the guy has to defend himself against the civil order (usually without counsel) while the judge cautions him”

      Unless the guy is the gal, in which the guy has to defend himself against the violence, not the court.

  8. Too much FUD in the comments and a little in the OP.

    I am no fan of the FAA but am a licensed UAV (that stands for Unmanned Ariel Vehicle) pilot which is what the FAA correctly calls what many uninformed peeps call drones. I started building UAV probably twenty years ago well before anyone used the term drone and have seen an almost unbelievable progress in the technology needed to pilot one. I have also seen great strides in the image quality the cameras on the produce; but it still does not match the image quality lots of the general public expects they produce.

    One fact I would note is while the government restricts lots of overflights of land it owns (airports naturally) including many parks at the federal, state, and city level the FAA has ruled (last I knew they keep changing things) you can take off outside a national, state, local park fly over the park and capture images, and then land out side the park legally while it is illegal to take off and land in the park.

    I would also note that all UAV flights are restricted to a max altitude of 400 feet and limited to line of sight; you must be able to see the UAV. Since most UAVs are less than two feet in length they get very small very fast, for me it is maybe 100 yards. On the other hand the onboard camera(s) allow them to be piloted when you can’t see them and the telemetry allows reliable communication at a distance of over 5 kilometers/3 miles.

    I am amused at the idea of something like a balloon with fishing line would realistically be any deterrent to a UAV. As for a shotgun there are almost universal local laws against discharging firearms with in a mile of a public road; not to mention the FAA has ruled that UAVs have the same protection as manned aircraft in terms of being shot at.

    What lots peeps seem to be missing is that currently there is technology to record phone conversations or make vids of what I would call private situations. Sure there are laws against recording peeps and making embarrassing vids. Problem is it happens all the time and there are really very few prosecutions of it; especially if it involves high profile celebs or pols. Not to mention leaked stuff from anonymous sources who have taped or made vids that the MSM is only too happy to publish.

    Point is there are lots of tec developments that the law has not kept up with.

    1. “I am no fan of the FAA but am a licensed UAV (that stands for Unmanned Ariel Vehicle) pilot which is what the FAA correctly calls what many uninformed peeps call drones.”

      No, the term drones is not only used by uninformed peeps.

      Outside of the big military UAVs, the term drones is mostly used to refer to a subset of UAVs, specifically, computer stabilized multi copters. And the manufacturers of kits and pre-built multi-copters all use the term drones.

      “I started building UAV probably twenty years ago well before anyone used the term drone”

      In other words you are building and flying fixed wing model aircraft, not the multi-copters which are what people mean when they say drone.

      1. Well I started building fixed wing, then helis, then VOLTs, then quadcoptors then hex copters. Not sure why you say mulit-copters are what most peeps call drones. For quite a while what most peeps thought of drones were fix wing aircraft that fired stuff like a Hellfire AGM, or more recently the Hellfire replacement the AGM-179 Joint-Air-to-Ground Missile used by Trump to kill Soleimani.

        Just as an aside reading comprehension is your friend. I never said uninformed peeps use the term drone I said what the FAA calls UAVs uninformed peeps call drones.

        1. Isn’t the real point that if it has an autopilot, it’s a drone? The RPV has a computer in it that takes care of navigating the vehicle to the coordinates selected by the operator.

          1. I am old enough to remember when the definition of drone was “make a continuous low humming sound”, or a “worker bee”.

            Point is that while the FAA has a definition of the word drone there is not complete agreement on what the definition should be.

            Another consideration is what I will call the price point. You can find some what I will call reasonable quality DJI quadcopters for under $US1,000. On the other hand there are what are top tier octocopters used for scientific research and at times by LEOs that can reach a price point of $US500,000; with capabilities that far exceed the consumer ones. I have seen price points for military fixed wing drones that boggle the senses.

            Congress has addressed the issue of rules/laws of the military using drones. But as noted the FAA has only fairly recently been involved in rule making. A couple of years ago I posted I was a long time member of the AMA (Academy of Model Aeronautics) and got bashed by some folks who had an issue with reading comprehension and thought it was that medical group. My AMA has rules about when and where to fly and provides insurance with membership.

            If you look at the number of members of the Academy of Model Aeronautics compared to the number of UAVs sold in the US it is obvious there are at least an order of magnitude of difference between what I will called insured responsible pilots and who knows what pilots.

            I have to wonder if the situation is not somewhat like the situation with pot, plenty of laws prohibiting use and possession but massive lack of enforcement and violations of those laws.

            1. There are definitely multiple classes of drone users, most casual, some serious and professional. There was a kit sold for children that would allow quadcopter drones built out of Legos to be flown. I have one. I also have a drone sold as a toy (but not to or for children.) It was under $20.

    2. “there are almost universal local laws against discharging firearms with in a mile of a public road”

      Try 10 feet from the edge of the pavement, or within the ROW of a controlled access road. That’s Maine law.

      There’d be damn few deer shot if they had to be carried more than a mile…

      1. Shooting across the roads is still illegal, right?

        1. Only if you hit a vehicle in the process…

          1. Amazingly, when I checked your answer with information provided by the Maine Department of Inland Fisheries and Wildlife I found that you are incorrect. Shooting over roadways is prohibited hunting behavior in the state of Maine. I suggest you refresh your lack of information before hunting season comes around again.

            1. See

              Title 12: CONSERVATION
              Part 13: INLAND FISHERIES AND WILDLIFE
              Subpart 4: FISH AND WILDLIFE
              Chapter 915: HUNTING: SEASONS, REQUIREMENTS AND RESTRICTIONS
              Subchapter 4: GENERAL UNLAWFUL ACTS PERTAINING TO HUNTING

              section 11208.

      2. It’s 150 feet from a paved road here, and unfortunately that covers most of my property. I think it’s the same distance for both guns and bows. In more densely populated areas it’s illegal to fire a gun at all. A strict liability crime according to a recent Appeals Court decision; no need to prove that the discharge was negligent or intentional.

        1. ” It’s 150 feet from a paved road here, and unfortunately that covers most of my property. ”

          It is not unfortunate from the perspective of those using paved roads, most of whom prefer to avoid bullets.

          1. Some of these laws don’t apply if you are shooting away from the protected road or building. The law I mentioned prohibits even bow hunting with the arrows fired away from the road. I have a volunteer bow hunter and a safe place to put him, where arrows that miss would go down into the dirt. It’s still illegal.

            1. Perhaps the concern is that the arrow won’t go down in the dirt, but will hit an animal that will wander into the roadway.

    3. If you destroy a drone over your property, could you be sued for damages or arrested for destroying government property?

      During a car ride, I said it would be better to examine a leaking roof with a drone than to climb 3 floors on a ladder. I am now being stalked on the VC by companies offering industrial surveying by drones. As a write this comment, I have a banner guaranteeing I will pass the Part 107 Examination with their course. The Airgility.com banner will not go away.

      These assholes worry about pictures of cars in a back yard, while my private car ride conversation has become worldwide knowledge. Fuck you lawyers.

      1. If I had discussed planning a crime like a drug deal, with my phone off, not chatting on the internet, as above, could the police buy my conversation from Google? Could they email me a plea offer accompanied by a copy of the recording of my conversation?

        Why isn’t a police app doing that for the billions of crimes commiitted every year by people carrying phones in their pockets?

        1. Lawyer question. The police could not plant a bug in my car without a court order requiring probable cause. Once in a Google server is my conversation public, like a book at a lending library?

          1. If you have a habit of recording your conspiracies prosecutors can get the evidence. Your Google history is like Nixon’s tapes.

          2. ” public, like a book at a lending library?”

            You’ve bought into the socialist notion of publicly-owned libraries. A book in a library isn’t public unless the library is publicly-owned.

        2. Get a VPN.

    4. Ragebot, maybe you ought to check your license. Whoever Ariel is, I doubt the FAA licensed licensed you to operate her vehicle.

      1. Once again the word police strike.

        1. In your pedantic case, only in retaliation. Welcome to your own class: the “uninformed peeps.” It’s particularly rich you can’t spell the thing you claim expertise about.

          Sorry, buddy, I don’t call people out for typos, misused words, or even for not knowing what, “begging the question,” or, “straw man,” means. I’m not really even calling you out for, “Ariel.” I’m calling you out for, “uninformed peeps.”

          1. It’s Easter time, when the peeps come out. AFAIK, all of them are quite flammable, and none of them is informed about much of anything.

  9. Interesting — exclusionary rule in a civil proceeding. Involving a municipality and a previous court settlement, rather than a criminal violation. And it’s Fourth Amendment simpliciter, because the state statute requiring a reasonable expectation of privacy talks about individuals, not property.

    Even assuming that keeping zoning boards from doing overflights of the neighborhood’s toparies and ha-has is a sufficiently compelling interest to invoke the exclusionary rule, the dissent has a good point in saying that all of these things could be seen just as easily from a commercial airliner, U-2 spy plane, UFO, or a Da Vinci helicopter being operated by Barney Fife. Kyollo is distinguished not by the technology, but because we’re talking about cars in the yard, rather than the house, even assuming the cars are in the curtilage. Drone the house, you’ve got a case.

    Mr. D.

  10. With the reasoning of the dissent here, the police (or any other government official) could use a drone to look into the windows on the second story of my home without leaving the public space and without a warrant. The second story of my home is not readily visible in many aspects from any public space.

    They could look at anything they wanted anywhere on my property as long as it had a window of some sort through which they could see with a camera from a drone.

    This seems to me no different than the government official walking onto my property (perhaps with a ladder) to look at whatever they want for official government business and without a warrant. While it may be visible from a public/commercial flight path, those aren’t operating in a government role/capacity. The drone is an extension of the government official and being used in the role of official government activity. It should be treated as such.

    I definitely consider that in violation of a reasonable expectation of privacy.

    1. There is an ongoing case in Massachusetts where police set up cameras on a nearby telephone pole to watch a house and a district court found that too intrusive even though the surveillance was from a place where police had a right to be. A First Circuit panel ruled for the government and the en banc court just heard oral argument. https://www.courthousenews.com/a-police-camera-that-never-tires-stirs-unease-at-1st-circuit/

    2. There is an ongoing case in Massachusetts about legality of technology-assisted surveillance. An unattended camera on a telephone pole across the street from the suspect’s house did the work of a team of police officers. If five officers had rotated to provide full time surveillance from a public place there would have been no constitutional problem. The district court said such intrusive camera surveillance crossed the line. A panel of the First Circuit reversed and the en banc court just heard oral argument. https://www.courthousenews.com/a-police-camera-that-never-tires-stirs-unease-at-1st-circuit/

      1. Massachusetts is Massachusetts, but I wonder how it would come out in a Republican state. which would bother them more? Possibly letting a criminal get away with it? Paying government employees to do work that could be automated? Or gubmint surveillance in the first place?

    3. Wasn’t there a SCOTUS case where the cops put a recording device on top of a phone booth and SCOTUS threw that out?

    4. “They could look at anything they wanted anywhere on my property as long as it had a window of some sort through which they could see with a camera from a drone.”

      close the curtains, duh.

  11. So, they suppress the drone footage, but “By plaintiff’s own account, it had concrete evidence, in the form of unrelated site inspection photographs and complaints from defendants’ neighbors, that defendants were violating the settlement agreement, violating the zoning ordinance, and creating a nuisance.”

    Complete waste of time?

  12. Wait until we get flying cars and people circling over backyards to look at the girls sunbathing.

    Putting a license plate on your ATV does not authorize you to bring it onto my property. It’s going to get interesting.

    1. “Wait until we get flying cars and people circling over backyards to look at the girls sunbathing.”

      Ed, there’s this thing called the “Internet”. It’s got all the sunbathing girls you could ever need on it. You and your flying cars are barking up the wrong tree.

  13. “Wait until we get flying cars and people circling over backyards to look at the girls sunbathing.”

    If the girls are sunbathing with all those cars up there casting shadows, they’re doing it because they want to be looked at.

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