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Wednesday, 15 August 2012 17:30

The Fourth Amendment and the Drones: How Will It Apply?

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On a near daily basis, The New American chronicles the approach of the day when squadrons of drones will fill the skies of the United States. Scores of these unmanned aerial vehicles (UAV) will be deployed by state and local law enforcement, adding to the many already deployed by the federal government. 

With the rise of the drones comes the rise of several critical questions of Constitutionality of their potential uses. One of the most crucial of those inquiries concerns the application of the Fourth Amendment’s prohibition against “unlawful searches and seizures” and the requirement that warrants be supported by affidavits “particularly describing the place to be searched, and the persons or things to be seized.”

As readers will recall, in June Senator Rand Paul introduced a bill “To protect individual privacy against unwarranted governmental intrusion through the use of unmanned aerial vehicles commonly called drones.” Paul’s bill mandates that:

[A] person or entity acting under the authority [of], or funded in whole or in part by, the Government of the United States shall not use a drone to gather evidence or other information pertaining to criminal conduct or conduct in violation of a statute or regulation except to the extent authorized in a warrant that satisfies the requirements of the Fourth Amendment to the Constitution of the United States.

In support of his measure, Senator Paul explained that “Americans going about their everyday lives should not be treated like criminals or terrorists and have their rights infringed upon by military tactics.”

A separate bill offered in the House of Representatives by Representative Edward Markey (D-Mass.) requires that drone operators (including “law enforcement agency, contractor, or subcontractor”) report all information collected by the drones to the appropriate government agency. Additionally, the data proposed to be gathered by these operators must be reported by the Federal Aviation Administration on its website. In a statement in support of his bill, Representative Markey said, "When it comes to privacy protections for the American people, drones are flying blind." 

Just how many of these drones will be watching us? According to a story published by UPI, “U.S. News & World Report says some analysts estimate ‘there may be as many as 30,000 unmanned drones operated in the United States by 2020 for uses such as wildfire containment and surveillance, law enforcement and surveying.’"

As we have reported, a drone was already used by law enforcement to track and apprehend a suspect. It’s been about a year since a North Dakota man was arrested after a local SWAT team tracked him down using a Predator drone it borrowed from the Department of Homeland Security.

Although the story has not been widely reported, Rodney Brossart became one of the first American citizens (if not the first) arrested by local law enforcement with the use of a federally owned drone aerial surveillance vehicle after holding the police at bay for over 16 hours.

Brossart’s run-in with law enforcement began after six cows found their way onto his property (about 3,000 acres near Lakota, North Dakota) and he refused to turn them over to officers. In fact, according to several sources, Brossart and a few family members ran police off his farm at the point of a gun. Naturally, police weren’t pleased with Brossart’s brand of hospitality, so they returned with a warrant, with a SWAT team, and with a determination to apprehend Brossart and the cows.

A standoff ensued, and the Grand Forks police SWAT team made a call to a local Air Force base where they knew a Predator drone was deployed by the DHS. About three years before the Brossart incident, the police department had signed an agreement with DHS for the use of the drone. No sooner did the call come in than the drone was airborne and Brossart’s precise location was pinpointed with laser-guided accuracy. The machine-gun toting SWAT officers rushed in, tased then arrested Brossart on various charges including terrorizing a sheriff, and the rest is history. Literally.

As the matter proceeds through the legal system, Bruce Quick, the lawyer representing Brossart, is decrying the “guerilla-like police tactics” used to track and capture his client, as well as the alleged violation of the Fourth Amendment’s protection against unwarranted searches and seizures.

While the police admittedly possessed an apparently valid search warrant, Quick asserts that no such judicial go-ahead was sought or obtained for the use of the Predator to track the suspect. Therein lies the constitutional rub.

In an interview with the press, Quick claims that the police exceeded their authority in several instances, especially when they decided to go around the Fourth Amendment and illegally search Brossart’s farm. "The whole thing is full of constitutional violations," he says.

"Unmanned surveillance aircraft were not in use prior to or at the time Rodney Brossart is alleged to have committed the crimes with which he is charged," wrote state prosecutor Douglas Manbeck, as quoted by U.S. News.

Manbeck defends the deployment of the drone, writing that "The use of unmanned surveillance aircraft is a non-issue in this case because they were not used in any investigative manner to determine if a crime had been committed. There is, furthermore, no existing case law that bars their use in investigating crimes."

On August 1, Judge Joel Medd agreed with the state and denied the defense’s motion to dismiss, holding that there "was no improper use of an unmanned aerial vehicle" and that the drone "appears to have had no bearing on these charges being contested."

While Brossart was the first to assert that his Fourth Amendment rights were denied by the use of a drone to track him, given the proliferation of UAVs, he will not be the last.

In fact, it doesn’t take a crystal ball to predict that one such challenge will eventually work its way to the Supreme Court, where the justices will pronounce their opinion (or opinions) of the lawful boundaries of the use of drones in law enforcement.

Until the first case is granted cert by the high court, a few recent decisions provide some indication of how the Court might rule on a case complaining of an unmanned violation of the Fourth Amendment.

For example, UPI describes how in the case of Indianapolis v. Edmond, in a 6-3 split, the Supreme Court held that Indianapolis’s “policy of setting up roadblocks to check for unlawful drugs was unconstitutional.” In the majority opinion, former Justice Sandra Day O’Connor explained the ruling, declaring that the primary purpose of the roadblocks was “indistinguishable from the general interest in crime control” and thus they “violate the Fourth Amendment." 

A year later, in its decision in the case of Kyllo v. United States, the Court once again found the government exceeded its constitutional authority.

The UPI summarizes the facts: “In Kyllo, a federal government agent used a ‘thermal imaging device’ to scan a triplex in Florence, Ore., without a warrant to determine whether marijuana was being grown. The scan showed Danny Kyllo's garage was hot compared to the rest of his home and the neighborhood, consistent with the high-intensity lamps typically used for indoor marijuana growing.”

Relying in part on the Court’s decision in the case of Katz v. United States (1967), in which the the use of listening devices outside of public phone booths was struck down as a violation of the “reasonable expectation to privacy” under the Fourth Amendment, Justice Antonin Scalia wrote for the majority that when the “government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment 'search,' and is presumptively unreasonable without a warrant.”

Regardless of these decisions seemingly supporting the Fourth Amendment, the Supreme Court has been known to reduce the scope of constitutional liberty so The New American will continue to follow this important constitutional issue.

4 comments

  • Comment Link lastofall Sunday, 19 August 2012 05:16 posted by lastofall

    It is just another example of the eroding of our system, which justifies evil as good, and good as evil; and makes darkness light, and light as darkness. That which is highly regarded and valued among men is abomination in the sight of God.

  • Comment Link Barbara Thursday, 16 August 2012 12:55 posted by Barbara

    What is most puzzling is why the legal professionals in this country aren't more proactive in defending and maintaining constitutional law. After all, whether prosecuting or defending clients, it's all about the law. Yet, the laws are being systematically changed or eliminated. When there are none left to defend clients with, lawyers and the legal profession becomes obsolete.

    Similarly, as industrialization replaced workers in manufacturing, will the elimination of the Bill of Rights eliminate the "hands on" representation of lawyers? With all the required education and experience it requires to build a decent law practice, one might consider their efforts in sight of facing obsolescence.

    Habeus Corpus has already been greatly impacted, now the fourth ammendment is slowly being undermined. As each of our cherished rights are being chipped away, it might be time the legal profession takes notice before they suffer a huge income deficit from a lack of need for the services that have not only enriched them but served the pubic interest as well.

  • Comment Link Ross Wolf Thursday, 16 August 2012 04:35 posted by Ross Wolf

    Without a Warrant: Police Drones—Recording Telephone & Private Conversations In Your Home & Business To Forfeit Property?

    It is problematic local police will want to use drones to record without warrants telephone and private conversations inside Americans’ homes and businesses: Despite some U.S. cities and counties banning or restricting local police using drones without warrants to invade citizens’ privacy, local police have a strong financial incentive (Civil Asset Forfeiture) to use their drones or Federal Drones. Should (no-warrant) drone surveillance evidence be allowed in courts—circumventing the Fourth Amendment, for example (drones’ covertly recording private conversations and electronic communications in Citizens’ homes and businesses, expect federal and local police Civil Asset {Property Forfeitures to escalate. Civil asset forfeiture requires only a mere preponderance of civil evidence for federal government to forfeit property, little more than hearsay: Any conversation, phone call or other electronic communication captured by a drone inside a home or business, police could take out of context to initiate arrests and civil asset forfeitures to confiscate a home, business and related assets. Local police now circumvent state laws that require someone first be convicted of a crime before police can civilly forfeit their property—by referring their investigation to a Federal Government Agency that may legally rebate to local police up to 80% of assets the Feds forfeit. Federal Government is not required to charge anyone with a crime to civilly forfeit property. There are more than 350 laws and violations that can subject property to state and federal government asset forfeiture in addition to illegal drug forfeiture laws. Increasingly local police are paid part or all their salary from proceeds realized from civil and criminal asset forfeiture. Police have to confiscate Citizens' property to keep their job. This is a clear conflict of interest. At the least, Congress should require the Federal Government prove by Clear and Convincing Evidence that a property is subject to Civil Asset Forfeiture, not a mere preponderance of civil evidence, little more than hearsay.

    The passed Federal “Civil Asset Forfeiture Reform Act of 2000” effectively eliminated the “five year statue of limitations” for Government Civil Asset Forfeiture: the statute now runs five years (from the date) police allege they “learned” an asset became subject to forfeiture. It is foreseeable should (no warrant) government-drone electronic surveillance be admissible in courts, police will relentlessly sift through Citizen and businesses’ (drone captured emails, Internet data, private conversations and phone communications seized on private property in hopes of discovering crime or civil violation to cause arrests and property forfeitures. It is problematic without public oversight, a corrupt U.S. Government agency or local police, may use drone no-warrant searches of Citizens’ emails, Internet data and phone call communications to extort and blackmail Americans; sell (no-warrant drone acquired physical and electronic surveillance information) seized from Americans and private businesses.

    Almost every week the media reports police arrested and convicted for selling drugs, extorting drug dealers, falsifying reports to cause arrests; perjury in court. It is foreseeable this kind of corruption will find its way into government / police drone search and seizure of lawful Citizens' private property to cause arrests and property.forfeiture.

    Under U.S. federal civil forfeiture laws, a person or business need not be charged with a crime for government to forfeit their property. Most U.S. Citizens, property and business owners that defend their assets against Government Civil Asset Forfeiture claim an “innocent owner defense.” This defense can become a “Catch 22” criminal prosecution trap for both guilty and innocent property owners. Any fresh denial of guilt made to government when questioned about committing a crime “even when you did not do the crime” may (involuntarily waive) a defendant’s right to assert in their defense—the “Criminal Statute of Limitations” past for prosecution; any fresh denial of guilt even 30 years after a crime was committed may allow Government prosecutors to use old and new evidence, including information discovered during a Civil Asset Forfeiture Proceeding to launch a criminal prosecution. For that reason many innocent Americans, property and business owners are reluctant to defend their property and businesses against Government Civil Asset Forfeiture.

    Re: waiving Criminal Statute of Limitations: see USC18, Sec.1001, James Brogan V. United States. N0.96-1579. U.S. See paragraph (6) at:
    http://www.law.cornell.edu/supct/html/96-1579.ZC1.html

  • Comment Link Daryl Davis Wednesday, 15 August 2012 17:39 posted by Daryl Davis

    It's very likely that the U.S. can and does already monitor open land and public spaces via satellite surveillance. There isn't any inviolable standard, or uncrossable line, here.

    If the threats are substantial enough, then our Fourth Amendment rights will yield, in the same manner that habeus corpus may be suspended during times of war:

    http://en.wikipedia.org/wiki/Habeas_corpus_in_the_United_States

    This drone technology isn't equivalent to police breaking down your door and shooting the dog. But if they arm them, that would be a problem.

    http://whatdirectdemocracymightbe.wordpress.com/2012/07/21/the-nation-state-law-punishment-and-immigration/

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