Thesis

i
The Use of Unmanned Aerial Vehicles by Domestic Law Enforcement
Using UAVs for Domestic Surveillance and Apprehension
A Master thesis
Submitted to the Faculty
of
American Public University
by
Mark Steven Enegren
In Partial Fulfillment of the
Requirements for the Degree
of
Master of Arts
November 2015
American Public University
Charles Town, WV

THE USE OF UAVs BY DOMESTIC POLICE AGENCIES ii
The author hereby grants the American Public University System the right to display
these contents for educational purposes.
The author assumes total responsibility for meeting the requirements set by United States
Copyright Law for the inclusion of any materials that are not the author’s creation or in
the public domain. §Title 17 USC
© Copyright 2015 by Mark Steven Enegren
All rights reserved.

THE USE OF UAVs BY DOMESTIC POLICE AGENCIES iii
DEDICATION
I dedicate this thesis to my children, Natasha and Alexander and my girlfriend, Anne. Thank you
Anne, for always supporting me and recognizing when I needed to be given time and space to
read and write but more importantly for knowing when to push me forward.

THE USE OF UAVs BY DOMESTIC POLICE AGENCIES iv
ACKNOWLEDGEMENTS
I wish to thank the faculty of American Military University for supporting, guiding, and helping
me through this process. A special thanks to Dr. Shun Yung Wang, for guiding me through the
thesis process and pushing me to reach ever higher with my writing.

THE USE OF UAVs BY DOMESTIC POLICE AGENCIES v
ABSTRACT OF THE THESIS
THE USE OF UNMANNED AERIAL VEHICLES BY DOMESTIC LAW ENFORCEMENT
USING UAVs FOR DOMESTIC SURVEILLANCE AND APPREHENSION
by
Mark Steven Enegren
American Public University System, November 4, 2015
Charles Town, West Virginia
Professor Dr. Shun Yung Wang, Thesis Professor
Drones, known also as Unmanned Aerial Vehicles (UAVs) or Unmanned Aerial Systems
(UASs) are a synonymous with military missions and the war on terror. However, these
ubiquitous flying systems have also become synonymous with model sized public versions
equipped with cameras seemingly flying above us in both public settings and private. With the
loosening of restrictions by the FAA on these platforms and their use (FAA Modernization and
Reform Act , 2012), many domestic police agencies have sought licensing to operate drones for a
variety of missions (Riley, 2013). This particular application of technology by police agencies
brings with it many constitutional and privacy concerns (Nunn, 2002). This paper intends to
examine these issues and determine if these fears are legitimate or unfounded, and whether or not
the use of UAVs by domestic police agencies is based on firm legal ground. There is scant case
law or legislation that directly applies to this technology; however, there are ample cases on the

THE USE OF UAVs BY DOMESTIC POLICE AGENCIES vi
use of manned flying systems and the introduction and use of technology by police agencies.
Utilizing a case study approach, the existing law and court holdings are analyzed and compared
to this emerging technology. Examination of these cases supports the argument that the use of
UAVs by domestic police agencies is founded upon solid legal precedent and remains
constitutionally sound (Villasenor, 2013), and that the use of armed UAVs is also a consideration
that is reasonable.
Keywords: Drone, Unmanned Aerial Vehicle, Unmanned Aerial System, UAV, UAS, Fourth
Amendment, Fifth Amendment, US Citizen, Privacy, Police, Law Enforcement

THE USE OF UAVs BY DOMESTIC POLICE AGENCIES vii
Table of Contents
Introduction...................................................................................................................................1
Literature Review...........................................................................................................................4
Methodology...............................................................................................................................29
Findings.......................................................................................................................................31
Discussion....................................................................................................................................44
References.................................................................................................................................... 54

THE USE OF UAVs BY DOMESTIC POLICE AGENCIES 1
The Use of UAVs by Domestic Police Agencies
Increasingly, the term drones and the platforms to which they refer are simultaneously
undergoing a metamorphosis in our society. During the past two decades, drones were
synonymous with the war on terror and military operations in far-reaching areas of the world.
However, drones have also become a ubiquitous homegrown phenomena flying above our parks
and streets and make headline news almost daily. Although, drones may be equated with military
strikes and unmanned warfare and being piloted from remote bases such as Ft. Huachuca,
society’s evolving perception of drones is one in which the technology lies in the hands of
everyday users equipping these flying platforms with cameras and surprisingly in one case a
firearm (Armed drone, 2015).
Airborne drones have a longer history than many people realize and have been operating
for nearly as long as man has been flying (Nature, 2007). Surprisingly, the earliest flying drones
originated for use in the First World War and were continued to be developed for the Second
World War (2007). Modern drones such as the predator are frequently equipped with advanced
technologies able to detect and identify potential targets for military operations. These same
military drones are commonly armed with a variety of weapons used to carry out military
missions.
However, the FAA Modernization and Reform Act has specific limits on the use and
specifications of domestically operated drones which refers to drones as Unmanned Aerial
Systems (UAS) (2012) and which limits their size to under 4.4 pounds, requires that the UAS or
Unmanned Aerial Vehicle (UAV) as it’s more commonly called, be operated within line of sight
of the operator, only be operated during daylight hours at an altitude under 400 feet more than 5
miles from any airports in the area (2012). Therefore, although the public may perceive UAVs as

being a military platform, the reality is much different. Nonetheless, these smaller UAVs offer
promising technology for domestic police agencies to operate.
As perceptions surrounding the use of drones changes, interest by police agencies within
the United States continues to increase with many agencies seeking licensing to operate drones
of their own for a variety of purposes (Black, 2013). In fact, after the FAA Modernization and
Reform Act was signed into law in February 2012 many law enforcement agencies from the
federal level down to the local level applied for operating licenses (Riley, 2013). In one such
case illustrating the direction in which domestic law enforcement agencies are moving, Sheriff
Greg Ahern of Alameda County sought to be one of the first police agencies nationally to obtain
and operate a UAV meeting these guidelines (Chuang, 2012). However, the use of UAVs by law
enforcement agencies in the United States is one in which many see potentials for abuse of
privacy and civil liberties (Stephens, 2005). In fact, even such conservative entities as the
Heritage Foundation have stressed the need for Congress to develop appropriate guidelines to
protect individual rights (Rosenzweig, Bucci, Stimson, & Carafano, 2012). Notwithstanding
these concerns, police futurists are predicting the increasing deployment of surveillance
technology and the use of UAVs (Stephens, 2005).
The appeal of UAV technologies is not likely to subside as police agencies nationwide
face cutbacks of budgets and reduction of personnel. One of the more appealing aspects of using
drones is that they are able to accomplish what many experts refer to as 3-D missions also called
dull, dirty, and dangerous (Darack, 2012). Having UAVs as part of a deployable arsenal means
less risk to personnel that would otherwise be tasked with those 3-D missions. As interest
continues to swell, concerns surrounding privacy and the constitutionality of police using this
technology will continue to expand however, there is relatively little case law pertaining to the

subject on the use of UAVs by domestic police agencies. In fact, currently the main body of
governance comes from the FAA guidelines and not from case law (Barbee, 2014).
Nonetheless, privacy concerns and constitutional worries are the larger roadblock with
which police agencies will need to contend. Therefore, it is incumbent upon researchers to look
into the increased use of UAVs by police agencies and determine whether their use is on sound
legal footing. The question then is if the use of UAVs by law enforcement agencies within the
United States for surveillance and apprehension is legal and ethical and whether or not it is a
violation of any constitutional protections. This paper explores these questions and argues that
the use of UAVs for surveillance and apprehension is legal, ethical, and constitutional and
remains a viable cost effective way for police agencies to reduce threats to life and limb both to
the public and their officers.

Literature Review
One way to understand how UAV technology may influence our society is to look at
where that technology stands today and look forward into how law enforcement agencies may
deploy that technology in the future. In his 2007 article detailing the Association for Unmanned
Vehicle Systems International (AUVSI) conference, Richard Bloss an associate editor for
Industrial Robot examines the future of unmanned vehicle systems and how they will be
integrated into our society. AUVSI categorizes unmanned vehicles in to three distinct systems,
which include airborne systems, ground-based, and marine systems (2007). Although, any of the
systems could potentially see work in the police field there seem to be few concerns about bomb
disposal units or other similarly equipped systems, whereas UAVs and UASs seem to generate
the most privacy concerns. At the time of his report, Bloss (2007) highlighted aerial systems that
might fit in the palm of the hand including some that were 4 cm long weighing less than an
ounce which could be deployed indoors and outdoors. Bloss (2007) reminds his readers, that
most of the interest at the AUVSI conference was centered around military systems however,
there is growing concern about the militarization of local police agencies and the co-mingling of
military technology with these local police agencies (Nunn, 2002). Interestingly, Bloss (2007)
touches upon this when he highlights that one of the goals of the manufacturers of these systems
is standardization of the operating systems and controls therefore providing the opportunity for a
trained operator to be able to exercise interoperability between systems. In this respect, police
agencies that adopt these systems would already have trained personnel available to operate the
platforms as they filter down to the local police level. Perhaps surprisingly, Bloss suggests that
“for most vehicles, there is also the need to increase the ability to operate autonomously,

meaning the ability to accomplish the mission goal with little or no human intervention” (2007,
p. 13).
One of the primary purposes behind developing Unmanned Vehicle Systems and
applying them at any level is mitigating potential harm to human beings that would otherwise be
operating manned systems. In his article focusing on utilizing drones for weather research,
Darack (2012) explains how UAVs are ideally suited for what are described as 3-D missions. 3-
D missions are those that are dull, dangerous, or dirty (2012).
Although his focus is on weather related systems, one can easily extrapolate that UAVs
deployed in any discipline including that of police work would be eminently suitable for 3-D
missions and as Darack points out, having “operators safely on firm ground hundreds of miles
away, mitigates any chance of danger to people” (2012, p. 22). In addition, Darack describes
how UAVs actually expand the realm of possibilities for flying systems by being able to go
where a manned vehicle would not simply because of the level of danger (2012), and as these
systems continue to undergo miniaturization, as Bloss (2007) suggested they were, the number
of places they might be deployed is ever increasing. This is perhaps one of the more critical
points of Darack’s article and demonstrates the usefulness of a UAV when there is a dangerous
mission to accomplish.
Additionally, Darack explains the terminology used in describing these unmanned
systems and points out that they these terms are interchangeable, which can cause confusion.
Importantly, since case law is yet to be determined to any major degree, our definitions of UAVs
remain critical. Moreover, since some case law references manned vehicles it is vital to have a
grasp of the nomenclature utilized by groups employing UAVs.

Darack explains that UAVs are frequently referred to as drones, which is at best
mislabeling these advanced systems (2012). Drones, as he points out are typically flight systems
that are programmed to follow a simple predetermined course, which terminates when the system
crashes or as in many cases with a target drone is, shot down (2012). UAV or Unmanned Aerial
Vehicle is currently the most popular terminology used to describe the systems in popular media;
however, the government and military commonly refer to these systems as Unmanned Aerial
Systems (2012). Clouding things even further, there are some camps beginning to refer to these
systems as Remotely Piloted Vehicles or Remotely Piloted Aircraft (2012). Nonetheless, all the
systems are commonly defined as describing a vehicle or aircraft being remotely operated by
crew on the ground (2012). Although, the terms used to refer to these systems may seem
mundane, the reality is that these terms are utilized not only to describe the systems but also to
research them. A researcher for example, may exclude one of the many terms in a keyword
search and by doing so miss vital information. As with many things, a commonly accepted
definition aids discussion and argument.
In Jason Griffey’s article on library technologies, the author focuses some of his attention
upon UAV technologies and predicts that they will be the wave of the future (2012). Although
the article is focused on technology that may impact libraries, Griffey theorizes that as the cost of
UAV technologies continue to drop they will become ever present in our society (2012). Griffey
(2012) goes further than some in suggesting that drones, as he refers to UAVs, will become
autonomous with the advent of the FAA Modernization and Reform Act being signed into law in
2012. He argues that the price point of these unmanned systems in 2012 had already dropped to
as low as $300 per platform and suggests that many of them are easily controllable with open
source software already available on the market (2012). Importantly, as the price point drops and

the technology becomes easier to operate its importance and desirability by police departments
will increase. Added to the aforementioned ability to perform 3-D missions, a platform, which is
affordable, useful, and adaptable, provides great promise for law enforcement missions that
would otherwise be too dangerous or difficult to perform. Griffey (2012) points out that these
UAVs are exactly as described, useful, adaptable, and affordable.
Interestingly, Griffey’s article also highlights another aspect coming with the advent of
UAV use by both the public and government. He illuminates how ubiquitous cameras have
already become in the public domain suggesting that cameras are virtually everywhere recording
nearly everything within public sight (2012), highlighting a fear that is often associated with
UAV usage. Ironically, Griffey also applies Moore’s law to these systems proposing that the
downward spiral of costs makes it infinitely easier and affordable for manufacturers of
technology to include that technology in their offerings (2012). Notably, this same trend also
applies to the technology employed in UAVs and continues to drive down the price point even as
the technology included becomes ever more sophisticated yet easier to operate.
David Dunn’s article on and drone warfare focuses on the use of drones as a “disruptive
technology” which he describes as “an innovative technology that triggers sudden and
unexpected effects’ and represents the potential for discontinuity from what went before” (Dunn,
2013, p. I238) employed in military operations and argues that this technology is a viable means
of combating terrorism but also that “drones and their proliferation represent a new development
in aerial warfare the implications of which have not yet been fully grasped, debated or responded
to” (2013, p. I238). Dunn like many other authors articulates how UAVs are gaining in both
popularity and use within the commercial and public arenas but goes further in suggesting that
drones blur the lines between military and law enforcement operations (2013).

Although Dunn’s article focuses on the military aspects of drones, Dunn also provides
extensive background on the proliferation of UAV technology. Dunn expresses how this
burgeoning technology is affecting our 21st century and surmises that the technological
innovations will lead to real changes in what he describes as the “aerial environment” (2013, p.
I239). Dunn also suggests that many expensive missions previously carried out by small
airplanes or helicopters can now be achieved using inexpensive technologically advanced
Unmanned Aerial Vehicles (2013). In one example provided by Dunn, 2 kg of materials were
delivered for as little as $.24 over a 10 km distance (2013). Although delivery of materials is not
specifically a law enforcement mission this does highlight the cost efficiency of the systems and
demonstrates another appealing reason why domestic police agencies would covet them.
Dunn provides a litany of current uses already in place for Unmanned Aerial Vehicles
within the United States, including inspections of oil pipes and power lines, photographing real
estate, patrolling the US border, surveying, fighting forest fires, search and rescue missions and
more (2013). Obviously, the most familiar application to law enforcement use would be
patrolling and search and rescue.
Dunn, like Bloss (2007) shows that technological innovation and hyper miniaturization
lie behind these applications of UAV technology (2013). Interestingly, Dunn (2013)also
mentions a $300 price point for this technology suggesting that a private citizen could purchase a
quadricopter equipped with real-time video streaming which relays its feed to a smart phone
controlled through an app. Dunn points directly at the FAA Modernization and Reform Act as
being responsible for the proliferation of UAV technology and refers to a 2011 report from the
Teal Group that indicates “spending on drones has become ‘the most dynamic sector of the
world’s aerospace industry’ and within a decade is expected to double to a value of US $94

billion” (2013, p. I240). He also points out that the transfer of what was a military technology is
being rapidly assimilated by the civilian population and suggests the proliferation of UAV
technology accessible to nearly everyone is becoming the “standard for many, many applications
of what are now manned aircraft” (2013, p. I241). Additionally, Dunn predicts these
technologies will be rife with their own challenges including the proliferation of drone
technology, which will present many challenges including, importantly, how to protect privacy
(2013).
Whereas, Dunn focuses upon the area of warfare and the militarization of police through
adoption of technology such as drones, Nunn delivers an argument focused more upon law
enforcement technologies and how they impact our society (Nunn, 2002). Specifically, he
describes how the concept of privacy is being challenged by the co-mingling of advanced
military technologies with domestic policing (2002). Perhaps more importantly, Nunn
emphasizes “two tools [which] are examined: (a) forward looking infrared radar (FLIR) (i.e.,
thermographic imagery), and (b) passive millimeter imaging (PMI) that enables something akin
to x-ray examinations of citizens, their vehicles, and their belongings” (2002, p. 71). Although
these technologies are not specifically drones, they represent technologies that could be expected
to be deployed on drones and other aerial platforms. Currently, FLIR is utilized on manned
platforms such as fixed and rotor wing aircraft as well as ground vehicles.
In addition to his examination of deployable technology, Nunn also provides an analysis
of the evolution of police technologies that were originally designed for military purposes
(2002). Obviously, the technology of UAVs was originally developed specifically for military
purposes and has now made its way into the public sector and for our purposes into the

machinations of domestic police forces. Nunn examines how these technologies spread and
concludes that:
These technologies often developed through U.S. Department of Defense (DOD)
research projects—are diffused among police agencies through an institutional network
that includes organizations like the Defense Advanced Research Projects Agency, NASA,
the U.S. military, national research labs, the National Institute of Justice, the Office of
Law Enforcement Technology Commercialization, the National Law Enforcement and
Corrections Technology Center, the Justice Technology Information Network, and others.
(2002, pp. 71-72).
Nunn surmises that the defense industry with its surplus of technology and law enforcement with
its demand of new and more efficient technologies are symbiotic forces leading to increasing
militarization of domestic law enforcement (2002). In fact, law enforcement agencies are
commonly on the forefront of adopting new technology (Diffie & Landau, 2007), which is in
part why UAV technology is being adopted at such a frenetic pace.
Nunn’s explanation for the burgeoning use of military technologies at the local level
hinges upon this symbiotic relationship of supply and demand and is a sound and reasonable
theory. Against the backdrop of the drug war, law enforcement agencies were seeking improved
technology in order to fight the war mandated by federal policy. Nunn (2002) explains that the
implementation in 1982 of the US Department of Defense Authorization Act, provided the
sought after military technology that local law enforcement agencies desired. In fact, he explains
that the act was implemented with the purpose of building cooperation between the military and
law enforcement. Perhaps most importantly, is his treatment of the diffusion of FLIR technology,
which eventually led to an applicable court case on the use of technology by police agencies.

This issue is examined further in Kyllo v. United States, 553 when the Supreme Court holds that
a device not typically in public use used to search, in this case a private home, is potentially a
violation of the Fourth Amendment in the absence of a search warrant (Kyllo v. United States,
2001).
Interestingly, Dr. Worrall a Prof. of Criminology at the University of Texas examines
Kyllo v. United States and finds flaws in the Supreme Court’s holding. Importantly, as Worrall
points out, the Kyllo case directly impacts the use of technology for searches and was meant, “to
hand down a bright-line rule applicable to all technological devices capable of discovering
information concerning what is taking place in private residences” (2003, p. 206). In this respect,
the Kyllo case has potential implications for the use of UAV technology, which might not
necessarily be available to the general public. However, as Dr. Worrall emphasizes there are
potential flaws in the wording of the holding, which according to him open the Kyllo case to
future litigation and interpretation (2003).
Again, although Kyllo directly implicates thermal imaging in its finding, Dr. Worrall goes
further providing extensive background and other cases applicable to airborne surveillance and
searches that directly influence the ability of local law enforcement agencies to utilize flying
platforms to conduct police investigations. Ultimately, the cases is in question deal with manned
aerial platforms such as fixed wing aircraft and helicopters, however as Dr. Worrall points out,
the court, in this case, found that previous cases before the court dealing with technology were
not applicable and more importantly that there was no connection between aerial surveillance
and thermal imaging (2003). However, this case remains important for UAVs because the court
did rule that enhancement of naked eye observation through means such as a telephoto lens on a

camera was permissible (2003). Importantly, many of the technologies deployable on UAVs are
specifically cameras for which the Kyllo case seems to have carved out an exception.
Additionally, Worrall’s analysis of the Kyllo case also implies that judicial overreach by
the court attempting to see into the future and predict the impact of technology on law is
inappropriate given the finding in Silverman v. United States (1961), which held there was no
need for the court to “contemplate the Fourth Amendment implications of these and other
frightening paraphernalia which the vaunted marvels of an electronic age may visit upon human
society” (2003, pp. 218-219). Ultimately, Worrall’s analysis provides insight and direction for
arguments in favor of using UAVs at the local police level, and for this reason is a critically
applicable article on the subject of UAVs.
Fortunately, Worrall is not the only author that has examined the implications of
technological innovations upon the Fourth Amendment. Sims and Woessner also scrutinize the
historical perspective that technology has had on the court’s holdings in their article focusing
upon how Kyllo will impact the fight against terrorism. In their article, the authors reach back
into the 1700s and cite Entick v. Carrington (1765) as establishing the doctrine of property rights
as being inviolable within the United States (Woessner & Sims, 2003).
Notably, these authors go further in their examination of Kyllo and much like Worrall
determine that the court in this case stepped far over the line of judicial jurisprudence in their
attempt to establish a bright line rule on the use of technology (Woessner & Sims, 2003). They
also focus on the language used in the holding that speaks to technology not generally available
for public use, which is critical in the examination of UAV use by police departments, especially
as that same technology becomes ever more available to the general public. Moreover, they
suggest that although “high-tech devices first find their way into the hands of the military and

then of law enforcement” (2003, p. 221), the same devices are frequently available to the public
in due time. For this reason, they suggest that the ruling in Kyllo may well be revisited in the
future, and perhaps more importantly that the use of technology does not needlessly violate
Fourth Amendment rights (2003).
Although, the Kyllo case has implications for the use of technology by police
departments, other authors have examined the relevant case law and determined that much of it is
antiquated and bears review. In his article on UAVs, Tyler Black looks specifically at how case
law relates to the use of UAVs by domestic police agencies. Black concedes like many others
that UAV technology is an intimate part of our society and daily life within the United States at
this time, and as such predicts that much of the case law surrounding the use of new technology
and privacy will require updating (2013). Within his examination, Black concludes that Fourth
Amendment protections against unreasonable search and seizure will remain in place even within
the context of potential continuous surveillance by airborne platforms such as UAVs (2013).
However, Black does deduce that, “widespread police operation of drones has the potential to
upend current Supreme Court precedent” (2013, p. 1834).
Black suggests that the unique capabilities of drones will endear them to law enforcement
in much the same way that military planners and operators have recognized and exploited those
abilities on the battlefield and in the war on terrorism (2013). Providing the historical perspective
and evolution of UAVs Black goes on to suggest that UAVs and the flexibility they offer for a
variety of missions while maintaining a low-cost point, which is infinitely cheaper than a
manned aircraft will continue to drive up their demand (2013). Additionally, Black believes that
UAVs deployed by law enforcement will be equipped with a variety of enhancement
technologies including visual recognition sensors, night vision capabilities, telephoto and zoom

lenses, and even technology such as heat sensors, penetrating radar, and even electromagnetic
detection equipment (2013). Obviously, a platform that is as affordable as a UAV that can be
outfitted with this variety of technology is a formidable piece of equipment, which will
inevitably find its way into the equipment of many police departments. Furthermore, as the FAA
carries out its mandate to integrate and expand the use and incorporation of drones into US
airspace, the likelihood of local law enforcement agencies obtaining these technologies remains
high (2013). In fact, as Black points out, technologies such as heat sensors, which we can expect
to find on UAVs, provide law enforcement an opportunity to conduct warrantless searches,
which is according to some statistics is on a sharp rise (2013). One figure that Black cites
indicates the Justice Department has increased warrantless searches by more than 600% in the
last 10 years alone(2013).
In the end, Black provides an analysis of the case law pertaining to aerial surveillance
suggesting that the primary Supreme Court decisions, “Florida v. Riley82 California v. Ciraolo,
88 and Dow Chemical Co. v. United States, 84” (2013, p. 1849), which are all based upon the
privacy doctrine found in the Katz v. United States decision, constitute a weak foundation upon
which to build a case for aerial observation (2013). Nonetheless, since there is scant other
precedent regarding legal decisions and the use of UAVs these cases remain the primary source
from which to induce relevant law. Ultimately, Black offer suggestions from the legal author
Troy Roberts and Brookings Institute fellow John Villasenor as ways to mitigate the privacy
concerns surrounding the use of UAVs by police departments (2013). According to Black,
Roberts suggests:
1. Write plain language statutes requiring warrants for [Unmanned Aerial Vehicle
(UAV)] searches.

2. Focus efforts on nonvisual navigation and safety of flight technology.
3. Require any UAVs to power down sensory enhancing technology when transitioning
to the target of the warrant or other mission.
4. Require logs of sensory enhancing technology use on all UAVs.
5. Create exceptions for immediate warrantless observation requirements, such as
criminal chases, fires, and chemical exposures.
6. Establish an objective regulatory body to enforce the rules on operators. (2013, p.
1865)
Black believes that “Roberts’s third, fourth, and fifth recommendations would allay many
general societal fears regarding drones because they would reduce police incentives to employ
large numbers of drones for observational purposes” (2013, p. 1865). Additionally, Black (2013)
writes that Villasenor warns against requiring warrants across the board, suggesting instead,
targeted legislation protecting privacy by limiting retention of data and requiring complete and
thorough records of all UAV activities however, Black adds that UAVs deployed by the police
should merely be used for specific missions and not sent out as a proactive patrol (2013).
The discussion on the legislation of UAVs and their impact upon the Fourth Amendment
continues with Taly Matiteyahu’s article looking at how the Fourth Amendment effects the
regulation of UAVs and how this will influence future court cases dealing with issues of privacy
and search and seizure under the Fourth Amendment (Matiteyahu, 2015). One premise that the
author makes is the inevitability of the Fourth Amendment being invoked in “warrantless drone
surveillance cases” (2015).
Matiteyahu (2015) echoes the concerns that some legal scholars voice concerning privacy
issues surrounding the use of UAVs and opines that current legislation is insufficient to

safeguard an individual’s right to privacy. Additionally, Matiteyahu suggests, like Melissa
Barbee (2014) in her article on the FAA and regulation of privacy, that the FAA is ill equipped
to regulate effective privacy guarantees. Matiteyahu goes further suggesting that no other
regulatory body is currently equipped to protect “privacy interests” (2015, p. 268). In part,
Matiteyahu may be basing this argument upon the fact that little legislation regulating the use of
UAVs by police departments has been passed and moreover that the Supreme Court “has never
addressed the Fourth Amendment and the privacy concerns implicated by the use of drones”
(2015, p. 269). Nonetheless, Matiteyahu does concur with this author that, “there is ample
relevant precedent from non-aerial surveillance, aerial surveillance, and non-surveillance search
cases” (2015, p. 269) with which to establish guidelines for the use of UAVs by local law
enforcement.
Matiteyahu also provides an analysis on the current state of laws and regulations
regarding the use of UAVs. According to Matiteyahu, “in 2013, 96 domestic drone bills were
considered by 43 states to regulate the use of drones in state airspace.112 Eight states enacted
drone laws.113” (2015, p. 280). The states that established legislative guidelines were Illinois,
Oregon, Montana, Florida, Idaho, Tennessee, Virginia, and Texas (2015). Additionally, in 2015
North Dakota enacted UAV legislation which received nationwide attention as it unintentionally
gave permission for law enforcement to not only utilize UAVs but also to arm them with less
than lethal munitions (Albanesius, 2015). Conversely, Virginia and Oregon are the only
jurisdictions having enacted regulatory legislation on UAVs that prohibit law enforcement from
arming them (Matiteyahu, 2015).
As there is much law still to be established, and few legislative actions addressing the
issue of UAVs used by police departments, Matiteyahu focuses much analysis upon what many

legal scholars view as the relevant court cases establishing the legality of local law enforcement
using UAVs. Matiteyahu concludes that, “current Fourth Amendment jurisprudence would seem
to allow unmanned aerial vehicles operating in legally navigable airspace to observe curtilage
and open fields of a home” (2015, p. 306). However, Matiteyahu cautions that as UAV usage
increases and technological advancements are made, legislative bodies at the state level will
undoubtedly regulate UAV use, which may ultimately impact the upper court’s analysis on the
reasonable expectation of privacy (2015).
Like many of the researchers delving into the domestic use of UAVs, Troy Roberts also
analyzes the government use of UAVs and effect of UAVs on the issue of public privacy from
the standpoint of the Fourth Amendment and from the perspective of legislative policies
(Roberts, 2009). Roberts also predicts that as the price point on UAVs continues to drop and the
technological advances continue to grow the combination of affordability coupled with
availability and technology will make UAVs one of the most sought after pieces of equipment
for law enforcement, government, and even private entities (2009). Obviously, many
commentators agree that the UAV sector is one of the fastest-growing areas of commerce and
some reports indicate double-digit growth in the sale of UAVs (The Korea Herald, 2015). This
growth, according to Roberts, will lead to Fourth Amendment issues surrounding unreasonable
search and seizure of citizens (2009). Moreover, Roberts also assesses that case law surrounding
UAVs is inadequate to provide a seminal answer regarding their constitutionality (2009).
Roberts believes that in order to preserve constitutionality and privacy “a responsible
legislative and administrative solution is required, incorporating accountability and restrictions
on visual and sensory enhancing technology without a warrant while providing necessary but
clearly drawn statutory exceptions to the warrant requirement” (2009, para. 1). Notwithstanding

Roberts’ views that a legislative solution is necessary, Roberts’ article looks forward in an
attempt to predict in which direction the court will lean during future cases surrounding UAVs
and privacy issues and concludes that the the use of UAVs by the government will not
substantially erode the Fourth Amendment and its constitutional protections (2009).
Roberts, reaches many of the same conclusions that others have concerning the use of
UAVs by local law enforcement agencies, namely that UAVs are a proven and effective tool,
offer tremendous savings over traditional aerial platforms such as helicopters, substantially
reduce the risk during 3-D missions, but that with increasing use of UAVs privacy concerns must
be addressed (2009). Strikingly, Roberts quotes one law enforcement officer who suggests that
the urban environment is already littered with cameras and other surveillance technologies and
that no one can, in reality, be in public without in all probability being filmed (2009).
Nonetheless, Roberts submits “the issue of omnipresent eyes in the sky must be addressed”
(2009, sec. 1. C .para. 5) which in light of the suggestion that the urban environment is already
rife with video technology, seems potentially meaningless. Finally, after review of the relevant
court cases that deal with such disparate yet related topics as the Fourth Amendment, the privacy
of curtilage and open fields, the use of video surveillance, the use of enhanced sensor
technologies, and the use of manned aerial platforms for surveillance and search, Roberts
concludes that the use of UAVs by government officials should be offset by regulations based
upon protections afforded in the Fourth Amendment and by case law regarding privacy such as
in Katz v. United States (2009).
Following Matiteyahu’s line of reasoning, Judge Philip Nichols a Circuit Court judge in
Prince George County, Maryland expands upon the analysis of current state laws regarding
UAVs. In his article, Nichols examines the surprisingly long history of UAVs and points out that

the technology itself is not in fact new (Nichols, 2014). Nichols chronicles the use of UAVs as
far back as 1917 with the development of the Kettering Aerial Torpedo, which he describes as
being essentially a rudimentary form of cruise missile guided by preset controls (2014).
Throughout the 1930s and into the Second World War, Nichols explains that there was
newfound interest in radio-controlled drones primarily for use as aerial targets (2014). Although,
many equate today’s UAVs with multiple arrays of sensor technology employed by the military
to ferret out the enemy, some of the first UAVs equipped to discover and target hostile forces
were originally being developed by the US Air Force as early as 1959 (2014). Nonetheless, it
was the advent of the FAA Modernization and Reform Act and the government edict to integrate
Unmanned Aerial Vehicles into the public airspace that may have precipitated the current growth
and interest in drone technology.
Interestingly, even though there has been a long history of drone use, the military
establishment remained the primary user until recent times. Although one could expect that
legislatures and the courts would have anticipated the transfer of this technology from the
military to the public sector, and more specifically the law enforcement sector, which as
discussed previously is frequently the first to adopt military hardware (Woessner & Sims, 2003),
there has in actuality been relatively little in terms of legislation or court cases dealing with the
actual use of UAVs or their use specifically by law enforcement. Remarkably, the fact that the
state of law and regulation regarding this flourishing technology remains inadequate is
predictable according to Nichols who suggests, that the law is always the last to react to the
introduction of new technologies (2014) even though, ironically, law enforcement is frequently
one of the first groups to seek out new technology.

Nichols follows this train of thought further and suggesting that, “how we deal with the
drone of today and the drone of the future is our responsibility and we should face up to it
immediately” (2014, para. 2) squarely placing this diktat upon the shoulders of our current
generation. In this spirit, Nichols recommends “A Model Act” to serve as a guideline for state
legislatures and courts throughout the United States (2014). Nichols submits that a model act
“would help streamline and govern their use” (2014, p. para. 3), referring to UAVs. Laying the
groundwork for this suggestion Nichols examines the 13 states, which at the time of his article
had some form of drone regulation or legislation and provides analysis of their effect upon the
use of drones (2014). An underlying theme that Nichols uncovers with his research is that most
legislation concerning UAVs and their use attempts to mitigate privacy issues (2014).
Additionally, the states also address concerns about weaponization, retention of data, and place
limits on the information that UAV operators may gather (2014). In addition to the eight states
mentioned in Matiteyahu’s article, Nichols adds Indiana, Iowa, North Carolina, Utah, and
Wisconsin to the list of states that have enacted legislation pertaining to UAVs.
The conservative think tank, The Heritage Foundation, addressed the issue of privacy and
drones in the US in a policy paper on governance in 2012, and argued for a balanced approach to
legislation for a technology, which they anticipate, will become widespread (Rosenzweig, Bucci,
Stimson, & Carafano, 2012). In similar fashion to others approaching this question of privacy
versus practicality the authors provide a background on the uses of UAVs and stress that the
available technology offers a wide range of possibilities to end-users both in the private and
public sectors ranging from military operations, surveillance, weaponized strikes on targets, to
more mundane uses such as crop dusting (2012). They stress that the wide range of purposes and
potentialities makes it incumbent upon government to enact legislation and guidelines limiting

the operation of the systems “Because of their wide-reaching surveillance capabilities, however,
even unarmed drones could threaten personal privacy and civil liberties” (2012, p. abstract).
They also suggest that these guidelines go further than the FAA’s purview and should
include legislation enacted by Congress defining the limits on the use of UAVs (2012).
Interestingly, others have expressed similar concerns about the FAA overseeing and regulating
UAV use in US airspace, arguing that the FAA is ill equipped to deal with constitutional privacy
issues that are raised with the rapid assimilation of UAVs into US airspace (Barbee, 2014).
One important note that Rosenzweig et al. make, is that the government has seemingly
already granted tacit approval to the use of UAVs within US airspace because the FAA
reauthorization bill that directed the FAA to incorporate drones into the airspace left only
“questions [that] were technical, relating, for example, to delineating air corridors for drones and
standards of reliability for ensuring their safe operation” (2012, para. 2), but not questions
determining if the use of UAVs was appropriate.
Rosenzweig and his co-authors make it clear that UAV use is growing and inevitable
(2012). For example, in the space of one decade our military has gone from operating 50 drones
to more than 7000 (2012). The versatility of drones is well understood and has been put to use in
such disparate areas as border patrol, livestock and crops monitoring, geological surveys, and
even as mentioned previously crop dusting (2012). More importantly, just as the military has
expotentially increased the number of drones it operates because their capabilities, the public and
private sectors can also be expected to rapidly increase the number of UAVs as the price point
drops and as the technology makes them easier to operate and ever smaller (2012).
However, with these abilities comes the possibility that lacking proper legislation and
guidelines there will be an erosion of privacy and constitutional protections (2012). Therefore,

Rosenzweig et al., stress that legislation and guidelines must include constitutional protections
especially those found within the Fourth Amendment (2012) as it will undoubtedly be implicated
with the use of UAVs by the government. The authors also identify basic principles surrounding
the introduction of any new technology that might substantially erode civil liberties. These
include, inherently benign and acceptable uses of UAV technology that should be fostered such
as search and rescue missions, and more onerous uses that should be limited such as deployment
of any militarily operated UAVs within the United States which as they stress invokes the
possibility of a violation of the posse comitatus act (2012).
Rosenzweig et al., also analyze the relevant court cases and identify Dow Chemical Co. v
United States as a case which they view as analogous as its focus is on the use of helicopters to
look beyond the walls of a compound (2012) which is essentially the same function that a UAV
would perform. They argue, that this doctrine merely reinforced the concept that government
agents are not required to obtain a warrant for that which is in public view (2012). They go
further by suggesting that no warrant is required for police to follow a subject on the street nor is
one required to pursue a fleeing felon and either of these can be done with a manned platform
such as a helicopter, therefore they suggest that requiring a warrant for activities such as those
described would be a complete anomaly to current case law (2012).
These authors also implicate Kyllo v. United States, suggesting that the versatility of
sensor technology available for use on UAVs makes it probable that UAVs will be equipped
with sensors of many different types, including those, which may be subject to the necessity of a
warrant. Additionally, they suggest that United States v. Jones is also applicable as it cautions
against large-scale surveillance and data collection, which as Justice Alito posited could lead to a

mosaic picture produced from many small pieces of data, which in essence strip citizens of their
privacy (2012).
In the end, they argue for a balanced approach to the legislation of UAVs and suggest a
set of guidelines from which lawmakers can produce responsible legislation (2012). Relating to
law enforcement uses, the authors suggest that operations including reconnaissance for tactical
situations, long-term surveillance of a specific location, search and/or pursuit of criminals, search
and rescue missions, and communication relays are all acceptable relatively benign usages of
UAVs (2012).
Conversely, they also outline certain situations in which the domestic use of drones
should be prohibited including, using UAVs in a military capacity, utilizing UAVs to surveil any
activities protected by the First Amendment, the use of sensor technology on UAVs which does
not have a demonstrable purpose, and using UAVs for mass collection of data that could provide
a mosaic picture for analysis by law enforcement (2012).
It seems apparent that the use of UAVs within US airspace is inevitable and that UAVs
will be operated by both the public and government for a variety of purposes. In his paper on
drones, Michael Heatherly who is also a police officer emphasizes the use of technology on
UAVs and how the cost benefit analysis outweighs any potential negatives (Heatherly, 2014).
Interestingly, Heatherly also invokes the concept of police using UAVs as a force multiplier
inasmuch as they can be operated by a single user whereas a manned aerial platform such as a
helicopter frequently requires a crew of two to safely perform the tasks assigned (2014).
Additionally, Heatherly argues that the ability to place a UAV in long-term orbit to maintain air
cover in situations such as barricaded subjects, hostage situations, and special events, is far
superior to having a manned aircraft in place, which is not only cost intensive, but also

physically demanding on the pilots (2014). Nonetheless, Heatherly (2014) acknowledges that as
the use of UAVs and applicable technology becomes more pervasive the debate over privacy and
Fourth Amendment issues grows more contentious.
Heatherly, like Rosenzweig and others argues that the use of UAV is not significantly
different than using a manned aircraft for the same mission (2014). Therefore, he suggests that
legislation, which has arisen in some jurisdictions calling for a warrant before a UAV is utilized,
is onerous and contravenes the public view doctrine addressed in court cases such as Dow
Chemical v. United States. Significantly, Heatherly’s main argument hinges upon the concept
that drones are not significantly different from manned platforms except for the absence of an
onboard operator and therefore, although there are privacy concerns surrounding the use of
UAVs, the constitutional protections in court holdings that enshrine privacy as an inviolate
concept are rendered largely unfounded (2014).
Heatherly, also examines Katz v. United States, which held that the method in which
evidence is gained is less important than the location from which it is obtained (2014). Using this
reasoning, Heatherly opines that since observations from manned aircraft of happenings in the
public view are not protected actions, there is no expectation of privacy at these times (2014).
Therefore, according to Heatherly the most relevant concern is not the platform from which the
information or evidence was obtained, such as a helicopter or UAV, but where the person who
was surveilled was physically located (2014) which is in line with court holdings.
Remarkably, Heatherly also makes an argument in favor of potentially arming
domestically operated UAVs, which is a decidedly different direction than many other
researchers have gone. Admittedly, he suggests that this is an unlikely scenario but argues that
legal precedent was set with the targeting of a US citizen, Anwar al-Awlaki who was killed in

2011 by a U.S. drone strike (2014). Heatherly emphasizes US citizens are clearly protected by
both the Fourth and Fifth Amendments, which in this case are tremendously relevant as the Fifth
Amendment demands due process be afforded to any suspect accused of a crime (2014), which
one would expect if they were ordered to be summarily executed by executive mandate.
Heatherly cites the three elements necessary for the targeting of a US citizen in a foreign
country, being that they pose an immediate threat, that capturing them is not feasible, and that an
operation against them is conducted under the applicable laws of warfare (2014). Going further
into his reasoning behind the use of extrajudicial deadly force on a citizen, Heatherly cites the
9/11 attacks on the United States and VP Cheney’s legal decision to shoot down hijacked flights
if necessary in order to intervene and prevent further attacks upon our soil (2014). Heatherly
(2014) envisions a scenario in which domestic law enforcement or potentially even a UAV
operated by the military could be deployed to intercede in a potential terrorist attack or other
event of similar nature. Heatherly suggests, that if an armed UAV or manned aerial platform was
available and could prevent a suicide bombing, that it is entirely conceivable this asset would be
utilized to neutralize the threat and in doing so would be within the same context as used by Dick
Cheney on 9/11 (2014).
John Villasenor is frequently quoted in much of the relevant research on the subject of
domestic use of UAVs and considered by many to be one of the preeminent authorities on the
subject. His article on Unmanned Aircraft Systems (UASs) and their impact on privacy found in
the Harvard Journal of Law and Public Policy provides extensive background and an
examination on the history Unmanned Aircraft Systems in the United States and the legislative
and regulatory environment in which these systems are operated. His paper is a fairly exhaustive
study on the Supreme Court’s doctrine regarding the Fourth Amendment, as well as

consideration of other relevant court cases, a study of the private use of UAVs, providing a
discussion of legislative and regulatory options within which to regulate the use of UAVs while
maintaining well-defined constitutional boundaries (2013).
Villasenor’s basic premise is that the use domestic use of UAVs stands on firm legal
ground and is affirmed by the Supreme Court’s jurisprudence (2013). However, Villasenor
acknowledges that constitutional protections will probably outweigh the Supreme Court’s
holdings inasmuch as they have already withstood the test of time (2013). Nonetheless,
Villasenor recognizes the need to maintain strong regulatory restrictions that ensure that use of
UAVs does not infringe on the right to privacy (2013).
After delving into the history of Unmanned Aerial Systems, Villasenor affirms what has
already been mentioned by many other sources, namely that the use of UAVs will continue to
dramatically increase because of key technologies which continue to drive the price down, while
adding to the capabilities of the systems (2013). Villasenor predicts that the decade following the
FAA modernization and Reform Act being implemented will experience unprecedented growth
in the UAV sector with expenditures somewhere in the neighborhood of $90 billion for a 10-year
period (2013). Like others, Villasenor points towards operating costs as one of the driving factors
leading to adoption of UAV technology by local law enforcement (2013). In fact, citing
information from one of the first law enforcement agencies to be issued in FAA certificate to
operate a UAV, Villasenor highlights that the Mesa County Sheriff’s office in Colorado operates
a UAV for as little as $25 an hour as opposed to hundreds of dollars an hour for a manned
helicopter (2013). Moreover, Villasenor stresses that a UAV can operate in situations that are too
“dangerous or disruptive” for use of a helicopter (2013, p. 467).

Although some researchers feel that the FAA is the inappropriate authority to regulate
privacy issues associated with UAVs, Villasenor points out that rules such as those requiring line
of sight operations of UAVs create an impasse between the interest of privacy and safety (2013).
That requirement would ostensibly disallow a UAV to operate over the horizon and would
essentially limit the area of operations in which a UAV could conduct missions. One remedy to
that scenario might be the use of UAVs by airborne officers, combining the use of manned and
unmanned vehicles to accomplish certain missions and increasing the range at which a UAV
could be operated.
Villasenor (2013) also addresses Fourth Amendment issues in this seminal paper
addressing the fact that the Supreme Court has not weighed in directly on the use of UAVs.
However, Villasenor offers what he refers to as a “long list of relevant precedents” (2013, p.
475), including , Kyllo, United States v. Jones, Dow Chemical Co. v. United States, California v.
Ciraolo, and Florida v. Riley. These court cases primarily concern themselves with use of
technology, privacy issues, search and seizure concerns, and the issue of publicly navigable
airspace. Because of his research, Villasenor finds that there may be voluntary conditions, which
UAV operators might enact to alleviate some of the privacy concerns that abound with the use of
UAVs (2013). These include, adherence to the AUVSI code of conduct calling for operators of
the UAVs to respect the privacy of individuals and following the guidelines established by The
International Association of Chiefs of Police (IACP), which include a commitment to obtain a
search warrant in areas where there is reasonable expectation of privacy (2013).
Villasenor, as do many of his peers, stresses the need for a balanced approach to
legislative responses on the use of UAVs, suggesting that blanket prohibitions are ill advised
(2013). For example, it is common for investigators to utilize surveillance video and photographs

from privately owned locations to investigate and solve crimes (2013). Therefore, a blanket
prohibition that denies the opportunity for an investigator to access images, which might be
germane to an investigation, would be inconsistent with current practices and case law relating to
a non-UAV investigation. Villasenor envisions a scenario in which a UAV in transit
inadvertently picks up images of a crime, which investigators need to access in order to solve the
crime. As Villasenor points out, creating legislation prohibiting the ability of officers of
obtaining and using these innocently acquired images not only endangers the outcome of an
investigation but would also be contrary to case law (2013). Additionally, Villasenor cautions
that when dealing with advancing technology, legislative approaches need to be cautious and
weary of unintended consequences (2013) but should simultaneously protect citizens from
privacy abuses while providing an opportunity to utilize these platforms to their full potential.
As we have seen, many of the authors and researchers have focused upon a several
specific Supreme Court cases, which as a whole; provide a framework that in the absence of
specific case law the subject one may deduce the set of conditions that simultaneously protect
constitutional rights while countenancing the domestic use of UAVs.

Methodology
Scholars on the subject of the domestic use of UAVs agree on many points regarding
their potential, use, and continued expansion into the domestic law enforcement field. These
scholars also seem consistent in their view that there are very few legal cases or studies on the
legality and constitutionality of government operation of UAVs in the United States, in fact
many commentators point out that there is no jurisprudence on the specific subject of UAVs
(Villasenor, 2013). For our purposes, the focus is on domestic law enforcement entities using
UAV technologies as the Posse Comitatus Act already curtails the use of the military
domestically. This lack of basic information related directly to UAV operations by local police
departments leaves us without enough information to quantify any relevant data. Therefore, the
question before us concerning the legality and constitutionality on the operation of UAVs
remains open.
Because there are few applicable cases and only a small body of legislative or judicial
cases that directly apply to this question, it is necessary to study a small number of specific cases
in order to develop a theory that can be applied generally. Some advocates of this methodology
recognize that it is possible to use a small sample size to obtain a generalized theory applicable
to the greater population (McLeod, 2010). This theory building case study approach is, according
to John MacLeod, discovery oriented and seeks to uncover ways in which the theory can be more
fully appreciated (2010). In dealing with such a small number, using a methodology such as this
is instrumental and by examining cases that are analogous, it may be possible to draw parallels
between the use of manned aerial systems and related newer technologies such as Unmanned
Aerial Vehicles and Unmanned Aerial Systems.

Using these guidelines, I examined this new technology within the framework of existing
cases, while evaluating constitutional protections within the Fourth Amendment. Concurrently,
an analysis of the legality of the new technology was conducted applying the construct provided
by the existing case law. I reviewed court cases identified by researchers as especially relevant to
the debate on the use of UAVs including, Dow Chemical Company v. The United States , 1986,
California v. Ciraolo, 1986, Florida v. Riley, 1989, Kyllo v. United States, 2001, and United
States v. Jones, 2012 . These cases not only address the legality of using aerial vehicles and
technology but also focus on the right of police to use publicly navigable airspace even during
missions for gathering intelligence, evidence, and possibly making arrests which are activities
curtailed by the Fourth Amendment and its protections against improper search and seizure.
In addition to the case analysis, tertiary sources were examined and analyzed for
information providing background on the history of UAVs as well as their applicability in a
variety of areas such as cost-effectiveness and 3-D missions. These sources, lay the groundwork
on the current state of drone use in society today and demonstrate the argument that these
systems are here to stay and will increasingly play a larger part in, not only our society in
general, but also in distinct segments of society such as the military, law enforcement, as well as
private industry. There is no shortage of news articles surrounding the phenomenon of drones
and there is no indication that this phenomenon is merely a flash in the pan soon to peter out. If
anything, one can follow the progression drones and UAVs from the early 1900s through today
and see that as technology continues to be improved, miniaturized, and made cheaper, unmanned
aerial platforms will become an omnipresent presence in our daily lives.

Findings
That government agencies use UAVs for a variety of missions is not new (Villasenor,
2013). As we have seen, the history of UAVs and unmanned aerial platforms reaches back to as
early as World War I (2013), however law enforcement use of UAVs is a relatively new
phenomena which some fear will have potential negative ramifications for privacy issues within
the United States. Additionally, many legal scholars share concerns that the Fourth Amendment
and its protections may be jeopardized by this ubiquitous technology. Nonetheless, more than 60
police agencies throughout the United States are currently requesting FAA certification to
operate UAVs (Dupont, 2015) however; there are currently only two dozen police agencies that
have UAVs as part of their equipment and are certified to operate those systems (2015).
Relatively few police agencies actually operate UAVs whereas many police agencies
throughout the nation have used manned aerial systems such as fixed wing aircraft and
helicopters for many years. In fact, it was not until June 2011 that a drone was used as part of the
arrest of a US citizen within the United States (Neil & Neil II, 2013). However, the arrest of
Rodney Brossart in North Dakota has not yet been challenged for its constitutionality regarding
the use of a UAV and as Brossart’s original conviction for terroristic threats was overturned, it is
unlikely that the court will adjudicate the privacy issues potentially implicated by this case.
In our examination of UAVs, what becomes evident immediately is that privacy issues
and concerns abound surrounding the use of these platforms by domestic law enforcement.
Instinctively, any technology which has the ability to be in intrusive and peer into the walls
surrounding our private residences is ominous, especially so to Americans who have enshrined
the protection of privacy in the Constitution. Therefore, it is unescapable to delve into the
applicable court cases in determining the legality and constitutionality of UAVs used by local

police departments. After developing an understanding of these court cases, the underpinnings of
the argument in favor of using UAVs should be self-evident. That foundation will advance the
argument leading to additional germane questions such as the possibility of arming these systems
in the future. Although, this sounds improbable it may be a natural evolution in the use of UAVs
following the synergistic logic employed by their military developers that has seen drones evolve
from simple targets to advanced machines capable of many missions and functions.
Obviously, precedent for this evolution has been seen in the militarization of drones as
they have moved from mere targets to advanced technological flying platforms armed with
detection capabilities and lethal munitions. Notwithstanding the Posse Comitatus Act, it is
possible to see how police departments are early innovators of technology and since the initiation
of the war on terror have become evermore amenable to adopting military tactics and equipment;
which to some degree the federal government’s own programs have facilitated.
In Dow Chemical Company v. The United States, the Supreme Court focused on the use
of aerial surveillance to peer over walls (1986). In 1978, the Environmental Protection Agency
(EPA) contracted with a photographer to take aerial photographs of the Dow Chemical company
from various altitudes (1986). The Dow Chemical company discovered this action and sued in
federal court receiving a summary judgment that the EPA had violated their Fourth Amendment
rights (1986). The Sixth Circuit Court overturned this decision, which was later taken up by the
Supreme Court in certiorari, which held that the use of helicopters by law enforcement or
government agents was not restricted by Fourth Amendment protections (1986).
In reaching their decision, the Supreme Court focused on the plain view doctrine
allowing evidence in cases when it is discovered in plain view (1986). Although the Fourth
Amendment governs unreasonable search and seizure, law enforcement officials are able, upon

showing reasonableness and probable cause, to obtain a warrant that permits both search and
seizure (Boulton, 2012). Perhaps more importantly, as Boulton points out, the court has
previously held that when a police officer can see evidence that is in plain view there are no
protections from the Fourth Amendment because viewing evidence in plain view is not
considered a search (2012).
However, there is a three-prong test to determine whether or not the Fourth Amendment
is implicated, including an officer’s location from where they view evidence and whether or not
that is a lawful location, and that the evidence must be immediately recognizable as
incriminating, and that the officer must be able to legally and lawfully access the evidence
(2012). This final element of the test may prove more problematic regarding the use of UAVs. In
essence, the UAV is an extension of the officer lacking the sensory technology that the Supreme
Court has attempted to define in bright line rulings as potentially negating the lawfulness of a
search. The Fourth Amendment does not exclude observations of an officer utilizing a UAV;
however, if an officer using a UAV is unable to lawfully access evidence the Fourth Amendment
could potentially be implicated.
The limiting nature of access is addressed in United States v. Gray (1999), which holds
that when the plain view doctrine is exercised, access to the contraband must be lawful (Moore,
2004). Some suggest, “search and seizure law under the Fourth Amendment has faced problems
in adapting to the technological advances” (Boulton, 2012, p. abstract), however these comments
refer to digital evidence rather than evidence gathered through the use of that technology,
nonetheless the sets up an interesting question with which the Supreme Court may need to come
to terms. Certainly, UAVs will continue to experience technological advances and law

enforcement may encounter difficulties in lawfully accessing potential evidence if restrictions
are placed on when and where UAVs may be legally operated.
Notwithstanding potential Fourth Amendment implications, this case importantly bridged
the gap between law enforcement and the use of aerial vehicles and pointedly provided doctrine
permitting law enforcement use of aerial platforms in publicly navigable space (1986).
Furthermore, the Supreme Court drew upon the concept of an open field in making their ruling,
reasoning that areas within view of aircraft in public airspace were not protected by the Fourth
Amendment (Villasenor, 2013). The court did caution that the use of highly technical equipment
or advanced technology not readily available to the general public might constitute an illegal
search triggering a Fourth Amendment issue in later cases, (2013) which gives rise to the
question of what does generally available to the public actually mean.
In California v. Ciraolo 476 U.S. 207 (1986), Chief Justice Burger was joined by Justice
White, Rehnquist, Stevens, and O’Connor and held that evidence obtained from an aerial
platform using the naked eye was not a violation of the Fourth Amendment nor did it require a
search warrant. In California v. Ciraola, the preeminent issue revolved around a fenced yard, in
which, police had reason to believe marijuana was being cultivated (California v. Ciraolo, 1986).
Unable to see over the fence from a lawful location, law enforcement officers obtained an
aircraft with which they flew over the residence taking pictures of the evidence on the ground
(California v. Ciraolo, 1986).
In their holding, the justices invoked the doctrine found in Katz, which held that for a
reasonable expectation of privacy to be present, a two-prong test must be passed, consisting of
whether or not a person actually exhibited an expectation of privacy and that society holds this
expectation is reasonable (Villasenor, 2013). The justices determined that it was unknown if the

defendant in the case actually had an expectation of privacy in his backyard as anyone in a large
vehicle tall enough to see over the fence would be able to see into the backyard where the
marijuana was in fact being cultivated (California v. Ciraolo, 1986). The justices held there was
no requirement in the Constitution for law enforcement officers to avert their eyes when walking
by a private residence even though the private yard was within the curtilage of the residence
(California v. Ciraolo, 1986). The justices also found that since commercial flight utilizing
publicly navigable airspace is routine at this time in our history it was unreasonable for the
homeowner to expect his marijuana plants would not be observed from above (Villasenor, 2013).
Therefore, the test of reasonableness was not passed. Importantly, as previously demonstrated,
the use of UAV technology is expected only to increase and as it does, it will become less and
less reasonable for any person to expect privacy beyond or even within the walls of a compound.
This case depends on upon the element that these observations are being made with the naked
eye versus technology and as such may leave room for future litigation as technological advances
become ever more common on aerial platforms both manned and unmanned.
In Florida v. Riley 488 U.S. 445 (1989), law enforcement officers received a tip
regarding a marijuana grow operation located behind a private residence (1989). Unable to see
behind the residence, police officers flew a helicopter at an altitude of 400 feet above the
location and observed marijuana in a greenhouse through openings in its roof (1989). The
majority found that when police utilize public airways, even at an altitude of 400 feet, there was
no requirement to obtain a search warrant and the Fourth Amendment was not triggered if and
when these observations could be made with the naked eye (1989). This case also relied upon
FAA regulations governing the operation of manned aerial platforms such as helicopters and
established that a potential future defense against these sorts of incriminating observations could

be an aerial vehicle that is operated contrary to FAA regulations. In his dissent, Justice Brennan
gave rise to an issue which may be connected with future use of UAVs when he held that the
police officers in question used equipment which was expensive and generally not available to
the public (Villasenor, 2013). Unwittingly, Justice Brennan may have opened up an argument for
the use of UAVs by domestic law enforcement because as they become cheaper, universal, and
generally available to the public as well as law enforcement agencies, the argument that
gathering evidence with equipment that is highly technical and unavailable is shrouded in
constitutional protection is eroded.
Kyllo v. United States frequently finds its way into the works of researchers studying the
impact of UAVs on privacy. Therefore, Kyllo remains critically important even though it
involves ground-based observations rather than aerial (Villasenor, 2013). In this case, a thermal
imaging device was used to scan a private residence and gather information necessary to obtain a
search warrant on the residence (Kyllo v. United States, 2001). Although, the imaging device
was not equipped on an aerial platform this case has far-reaching implications for future aerial
observations and sensor technology (Villasenor, 2013).
The justices in Kyllo held that when government officials utilize technology, which is not
generally available to the public for such purposes as searching a private home, an unreasonable
search has been committed in the absence of a search warrant and therefore is a violation of the
Fourth Amendment (2001). Obviously, this finding has far-reaching repercussions for emerging
technology utilized by police agencies and government agents. Importantly, as Justice Brennan’s
opinion in Florida v. Riley gave rise to a question about the definition of technology which is
generally available to the public, this case has similar inferences. If and when technology, which
was once rare, becomes publicly available and widespread, does this erode protections of the

Fourth Amendment and lessen the requirement for warrant? When juxtaposed against the
Supreme Court’s findings on the use of publicly navigable airspace one can see that there may be
future cases brought before the court in an effort to define the answers to some of the questions
raised.
As Villasenor points out, the court in Kyllo refused to examine the issue of technology
further even though the specter of violations had been previously raised in the Dow finding when
the court suggested that a potential violation of the Fourth Amendment did occur because the
most advanced camera available was used and that this camera enhanced the image in great
enough detail that it captured that which the naked eye would be unable to do (Villasenor, 2013).
United States v. Jones is one of the most recent Supreme Court cases dealing with
privacy. In this case, the FBI in conjunction with the Washington DC Police Department
installed a GPS tracking unit on the vehicle of a suspected narcotics dealer (United States v.
Jones, 2012). This technology tracked the suspect for approximately a month during which time
the suspect was found to be at a location where there was a drug sale (2012). Jones was
eventually convicted but his conviction was overturned by the District of Columbia Circuit Court
which surprisingly held that Jones had an expectation of privacy even when in a public place
(2012). The court based their opinion upon the ability of the GPS unit to track his movements
completely and thus providing a mosaic picture of his comings and goings, which the court held,
was a violation of the Fourth Amendment (2012).
The Supreme Court took up the matter, and in 2012 unanimously found that the
government’s actions in this case were unconstitutional (2012). The majority opinion written by
Justice Scalia held that the Fourth Amendment was violated when the police trespassed during
the planting of the GPS unit (2012). Additionally, the court cautioned that extended surveillance

using technology of this sort to track the totality of a person’s movements could potentially
trigger a Fourth Amendment violation even though this case was decided on the original physical
trespass noted (2012). Several of the other justices also noted their concerns about continuous
tracking and surveilling and thereby obtaining a large amount of data, which when placed
together provides a mosaic picture of a person’s actions and intents. They also cautioned that this
could become a Fourth Amendment issue (2012).
Interestingly, as Matiteyahu points out the Fourth Amendment was originally concerned
with protecting against government trespass a physical property and did not focus upon trespass
on a person or what we would now refer to as search and seizure (2015). However, the court
changed directions with its holding in Katz v. United States, and applied the Fourth Amendment
prohibitions to people rather than places thereby protecting them from unlawful search and
seizure as long as the person claiming the protection could articulate a justifiable, reasonable, or
legitimate expectation of privacy (2015). This privacy test first applied in Katz is now the
standard by which Fourth Amendment violations are judged (2015). This test is a two-pronged
test in which both elements must be met and includes that a person actually had an expectation of
privacy, and that that expectation of privacy would be commonly accepted in society (2015).
For our purposes, this test is important in light of the application of UAV technology in
the public domain. As UAVs become the norm rather than the exception, the expectation of
privacy in some locations will be obviously diminished. Moreover, for societal purposes the
erosion of the expectation of privacy continues with advances in technology including those,
which are not always associated with UAVs. For example, many jurisdictions within the United
States have already installed and implemented closed-circuit television cameras as a means for

providing security and observation of public places (McLean, Worden, & Kim, 2013). In fact,
according to McLean, Worden, and Kim:
Major American cities such as New York, Chicago, and Baltimore have created massive
surveillance networks. Chicago has one of the most extensive systems with an estimated
10,000 cameras in its integrated network of public and private cameras (Babwin, 2010),
approximately 2,000 of which are operated by the Chicago Police Department (La Vigne,
Lowry, Markman, & Dwyer, 2011). (2013, p. 304)
McLean, Worden, and Kim also mentioned that in Baltimore the downtown area has a 50-block
section covered with cameras, and the New York an area of Manhattan has around 3000 cameras
in use (2013). To be sure, there is little expectation of privacy in these areas and although the
pervasive use of cameras to monitor the public domain may be consider Orwellian by some, this
has in some respects become the norm. In fact, in some jurisdictions globally, privacy has taken
a back seat to the necessity of maintaining public safety. “In Britain alone, over one million
cameras have been installed in towns and cities across the country, with an estimated 500 being
added to this number every week” (Goold, 2002). In fact, according to some estimates, “it would
not be unreasonable to‘guesstimate’ that Londoners are monitored by at least 500,000 CCTV
cameras” (Norris & McCahill, 2006; 2005, p. 102). Although the proliferation of cameras
overseas does not elicit concerns about the constitutionality of cameras domestically, some
suggest that the widespread diffusion of police technologies and tactics leads to an
internationalizing of the policing model, which will inevitably lead to domestic jurisdictions
copying the model in an effort to fight crime regardless of societal wishes or concerns (Deflem,
2002).

It is unlikely that society believes there is an expectation of privacy in locations where
cameras are proliferate. Understandably, UAVs add an extra dimension to this conundrum by
potentially being an ever-present technology in the sky, which would conceivably be equipped
with sensors, cameras, or other equipment recording and detecting individuals as they move
about. Furthermore, not being tied to a fixed location enables the UAV to be operated without
regard to physical barriers such as fences and walls however, in the context of the Katz doctrine,
using a UAV to continuously monitor a person may be more problematic. If anything, this
situation makes it probable that the ruling under Katz could find itself under increased scrutiny.
To some degree, the concerns about the capability of the UAV to remain airborne for a
long period of time conducting surveillance is addressed by Matiteyahu commenting that the
court has addressed the subject and has held that in locations such as a public roadway or when a
person is traveling in a car there is no reasonable expectation of privacy (2015). This doctrine
however has been limited by other rulings, which found that privacy does extend to a private
residence, a concept with which most of society would agree (2015). Interestingly, the holding in
Jones sets up a potential showdown if government agencies utilize some of the capabilities of a
UAV to set up long-term tracking and gathering of data points which would likely present a
mosaic from which the government could extrapolate enough data to paint a fairly detailed
picture of a person’s likes, dislikes, predilections and movements.
One of the more controversial aspects of UAVs, beyond that of privacy, is the potential
for arming them. Although, this may seem a dramatic and improbable use of UAV technology
the potentiality is certainly present. In his paper, Michael Heatherly broaches the subject and
provides a scenario in which one could envision the use of an armed UAV being used to
intercede in a theoretical terrorist attack (2014). However, theory aside, Heatherly points out this

could have come to fruition after the 9/11 attacks when VP Dick Cheney authorized shooting
down hijacked passenger planes (2014). If, at that time there had been an armed aerial drone
capable of firing a missile or bringing down a passenger aircraft there is likely little discussion
that Cheney’s order would have been carried out, no matter how draconian it may appear.
The real possibility of deploying armed police drones may not have been realized at this
point but there has been conjecture and evidence that this has in fact at least been conceptualized
for a long time. In fact, as Noel Sharkey points out, an article from Science and Invention
Magazine in 1924, theorizes the use of an armed robot to minimize danger to the police
(Sharkey, 2009). Sharkey, even points out that an unarmed robot was used in New Mexico to
drag a woman out of a barricade situation (2009), and a search at Policeone.com shows an array
of stories highlighting the positive uses of various police robots.
Additionally, less than lethal means such as Tasers have already been deployed on
UAV’s (2009), and companies are adding lethality to their weapons systems by the inclusion of
various weapons mountings (2009). One company designed its robot to be outfitted with the
capability of a “40 mm grenade launcher, a 12 gauge shotgun, or a less than lethal FN 303
launcher” (2009, p. 113). Another UAV, the Remotec Wheelbarrow robot, has mountings for a
shotgun, grenade launcher, and gas dispenser (2009). Regarding the arming of UAVs the
International Association of Chiefs of Police (IACP) has published a memorandum on UAVs
and recommends against arming them. According to the IACP:
Equipping the aircraft with weapons of any type is strongly discouraged. Given the
current state of the technology, the ability deploy weapons effectively from a small
UA is doubtful. Further, public acceptance of airborne use of force is likewise doubtful

and could result in unnecessary community resistance to the program (IACP Aviation
Committee, 2012)
As we have seen, military tactics and technology often times trickle down to the local law
enforcement level and if one were to use this as a litmus test for the possibility of arming drones
than it would seem probable that this tactic will eventually be found at the local level. This
controversial subject is even more onerous than that of privacy and implicates both the Fourth
and Fifth Amendments because as Heatherly points out death is the ultimate seizure (2014).
Interestingly, the subject of arming drones is a relatively new one even within military
circles. The first drones were merely targets or simply programmed to perform rather mundane
tasks. However, with the advent of the war on terror the use of military drones has not only
skyrocketed but has seen them evolve from mere surveillance platforms to those of armed
vehicles of war. Nonetheless, as detractors of arming drones point out, there is an ethical
dilemma regarding the arming of these platforms, and is not therefore, a task to be undertaken
lightly. As Dunn rightfully points out:
They disrupt the calculus of risk of the participants in this form of combat by
transforming the balance of vulnerabilities. By disembodying these weapons platforms,
the technology enables their use with domestic political impunity, minimal international
response and low political risk and cost. It is now politically and technically easier to kill
suspected terrorists than to arrest them.5 Drones are the enabling technology for a new
era of targeted killing on an unprecedented geographic scale. (2013, p. I239)
One should ask what effect this might have on police operations should agencies choose to arm
drones in the future. Would this minimization of risk lead officers to be more willing to use

lethal force? If one accepts Dunn’s view regarding the weaponization of drones in the
geopolitical military arena this certainly would be a valid concern.
Others view this potential militarization of police departments to an almost fetish like
desire simply to possess militarized weapons, which they then operate as if they were using a toy
(Salter, 2014). Salter argues that under the context of counterterrorism the militarization and
arming of drones becomes a legitimate position and advances the ability of police agencies to act
as paramilitary organizations that serve to maintain control of the state through technological
superiority (2014). Remarkably, others suggest that technological advances in policing have also
led to increases and opportunities in cross-border criminality, which has facilitated the
internationalization of police agencies (Deflem, 2002). Notwithstanding these opposing
viewpoints, the reality for an officer on the street is that anything that can possibly be used to
reduce the risk to life and limb of the officer, suspect, and general public would probably be
viewed as a positive development. However, one can see, there are serious questions surrounding
the ethics of arming a UAV and the potential for abuse both at the user level and perhaps more
disconcertingly by the state in order to perpetuate a technological advantage and therefore
superiority over their citizenry, which interestingly raises Second Amendment issues. Although,
these arguments may seem esoteric to some, they are legitimate concerns and should be
addressed through a common sense approach to legislation.
Some states have acted proactively and legislatively prohibited the use of UAVs with
certain exceptions (Villasenor, 2013). Others, have prohibited arming UAVs, while one, North
Dakota, has actually enacted legislation which permits arming a UAV with less than lethal
means, albeit inadvertently, making North Dakota the first state to pass a law allowing weapons
on a UAV (Albanesius, 2015). As mentioned previously, this was an oversight by the legislature,

which was intending to pass a rule disallowing arming UAVs (2015). Irrespective of the states
that have enacted legislation regarding the arming of UAVs, this topic of discussion is important
and relevant.
Discussion
Where then does that leave us in our discussion on the functionality, legality, and
constitutionality of the modern UAV used by domestic police departments, and in what roles can
these UAVs be utilized within the guidelines established by court cases and the Constitution?
One thing is abundantly evident, drones and their progeny are likely here to stay and
become an integral part of our society and our everyday lives. There are countless stories about
drones in the news and these reports come from all corners of the globe. Although there are
several different classifications of unmanned vehicles, including aerial systems, ground systems,
and seaborne systems (Bloss, 2007) , the issue of privacy seems primarily focused upon aerial
systems which have the ability to transcend borders, walls, and other obstructions which would
preclude a ground-based system or seaborne system from observing that which is meant to
remain private.
These airborne systems are referenced in a variety of ways depending upon which entity
is referring to them. Known collectively as Unmanned Aerial Vehicles, Unmanned Aerial
Systems, Remotely Piloted Systems, each of these terms in essence describes the same operating
system, an aerial platform, which can be arrayed with a variety of sensor technologies, cameras,
or guidance systems, which is typically operated remotely by a human hand. Obviously,

advances in technology are the driving force behind the systems and that same technology is
simultaneously increasing ability while decreasing price and size seemingly in synchronicity
with Moore’s Law. Although this conversation does not dealing with transistors on a microchip,
it does pertain to technology that is undergoing miniaturization as it has been exponentially
increasing in ability.
As disconcerting as it may be to have the neighbor flying a UAV equipped with the
camera over you, your loved ones, and your property, the specter of having government agents
using UAVs to gather evidence is an even greater concern for most. Nonetheless, as we have
seen, there appears to be firm legal ground upon which the use of UAVs by local law
enforcement is predicated.
Dow Chemical Company v. The United States, provides us with a point from which to
start because the saliency of a holding directly relating to flying above the property in an manned
aircraft for the purpose of photographing potential evidence with that of an Unmanned Aerial
Vehicle flying above the earth photographing potential evidence is indisputable. Nevertheless,
what may be in dispute is whether a UAV in this situation being remotely operated by an officer
passes the three-prong test, meeting the elements of plain view. The courts have held steadily to
the concept that police officers flying in publicly navigable airspace is a lawful use of that space.
There is no reason to believe that a UAV operating in publicly navigable airspace would be in
violation of any constitutional protections. Limiting the ability for police use of both UAVs and
manned platforms, is the Supreme Court’s view that operations of these sorts be done lawfully
and within the guidelines and regulations promulgated by the appropriate authority, which in this
case is the FAA. Nonetheless, if the UAV is operated appropriately in a public airspace it will
pass the first test for the plain view doctrine.

The second aspect of this plain view test is the ability of the officer to recognize the
criminality of the subject matter at hand. In Dow, the court hinted at a possible violation because
the camera used was the most technically advanced available and made objects visible under
enhancement. However, the court did not develop this line of reasoning and instead focused on
the aspect of publicly navigable airspace and the open fields doctrines. In this sense, the Dow
ruling upholds the use of UAVs, as they will most certainly be used in airspace which is not only
publicly navigable but which is likely to be simultaneously used by members of the public
operating their own UAVs.
Interestingly, some UAVs have been miniaturized to the point where they can fit in your
hand. In fact, according to one news report a micro UAV called the Cicada is a motorless UAV
that can travel 50 miles an hour and fits in your palm (Naval research lab develops micro uav,
2015). This particular micro UAV was designed as a Covert Autonomous Disposable Aircraft
and reportedly costs only $1000 with a price point that is expected to drop to $250 with mass
production (2015). UAVs of this nature would certainly cause many more problems with privacy
as they could be flown into a residence rather than merely above it. Nonetheless, the Dow ruling
does not prohibit the legal use of a UAV in publicly navigable airspace even if equipped with the
camera capable of discerning great detail.
The two-pronged privacy test found in the Katz ruling was instrumental in California v.
Ciraolo, which found that a person needed to, both exhibit an expectation of privacy, and that
society agrees that that expectation is a reasonable one. The focus for this paper is on the second
leg of that test, and whether an expectation of privacy is reasonable especially in light of
society’s ever-increasing levels of surveillance by not only the government but private citizens as
well.

In Ciraolo, the justices focused on the aspect of commercial flight overhead being a
normal part of society therefore disallowing the homeowner’s expectation that the contraband in
his yard would not be noticed. Extending that line of reasoning out further, leads one the
realization that UAVs are already operating in nearly every setting imaginable in our airspace, so
it becomes easy to infer that as technology increases the expectation of privacy diminishes.
Additionally, as noted previously, our society as well as the global community is increasingly
coming under the scrutiny of land-based cameras with some estimates suggesting there are
millions of these units already in operation. In major cities within the United States, there are
already thousands of cameras monitoring public thoroughfares and spaces, which in those
locations greatly diminish any expectation of privacy. Ciraolo, was not a situation in which
contraband was observed on a public street but rather in a fenced private yard. However, even
behind our fences the expectation of privacy shrinks as the general public operates more and
more UAVs for personal purposes. Therefore, it is unlikely that as a society, airborne
observations would be considered anything other than routine.
In Florida v. Riley, the court found that observations made with the naked eye from a
lawful place did not a trigger the Fourth Amendment. This presents a question about the
definition of the naked eye, which as we have seen in Dow could include the use of cameras with
telescopic lenses that enhance the ability to see. Additionally, this case suggested that a
regulatory violation concerning the operation of an aircraft could also trigger a Fourth
Amendment defense if it could be shown that the operation of the aircraft is contrary to
regulations in place. The FAA is the regulatory body, which at this time enacts the rules
pertaining to the use of UAVs. However, there are some that feel that legislative bodies should
enact laws pertaining to the use of UAVs and if so, these regulatory actions would also have an

impact on potential Fourth Amendment triggers. Justice Brennan may have unwittingly made it
easier for police agencies to obtain evidence with the UAV when in reality he was attempting to
limit their actions. Brennan noted in his dissent of the majority decision that the police used
equipment which was not generally available to the public and which was very expensive. As we
have seen, UAVs are not only cheap to obtain and operate but are widely available to the general
public. Following Brennan’s logic, a piece of technology such as a UAV, which nearly anyone
can own and operate, would not trigger a Fourth Amendment privacy issue. Again, this action is
predicated upon the fact that UAVs continue to proliferate even as their costs drop.
The question in Kyllo v. United States also came down to an issue of technology being
generally available to the public. Obviously, Brennan’s dissent in Florida v. Riley, also applies
here. This Kyllo case was an attempt to strengthen the Fourth Amendment but as we have seen,
may have spurred unintended consequences when the justices invoked cost and availability as
defenses against the intrusion of the police. In this case, the issue of sensor technology was at
hand, yet one can apply the general principle to the use of UAVs by police. If it is a technology
that is generally available to the public, there should be no reason to believe that using it will
implicate the Fourth Amendment. However, in the case of sensor technologies it may be simply
a matter of time before the technology finds its way into the hands of the general public. If and
when that occurs, the Kyllo ruling may need to be revisited.
The United States v. Jones case was one in which the Justices chose to address the issue
of trespass over the issue of technology and therefore may have set up a future question which
will need to be addressed. In the case of UAVs, trespass is not typically the issue if the operation
is done in a publicly navigable airspace. Obviously, the advent of micro UAVs could make Jones
more applicable, but at this time, the question remains unanswered. What is apparent is that the

Justices were concerned about long-term monitoring leading to a vast mosaic of data being
obtained from which certain private information could be gleaned about a person. Interestingly,
UAV technology is quickly advancing to the point where the Justices fears may be realized.
UAVs such as Medium Altitude Long Endurance (MALE) and High-Altitude Long Endurance
(HALE) are already being developed for use as long-term surveillance and detection platforms
(Bürkle, Segor, & Kollmann, 2011). Additionally, Aerostat balloons are already deployed with a
variety of detection and surveillance technology on board (Sprenger, 2015). Used on the border
to detect intrusions they have also been used by the military in operations in both Afghanistan
and Iraq (2015) and can be aloft for a long period of time gathering intensive data.
However, the concern about police UAVs remaining aloft for long periods of time
gathering data seems a distant possibility of this time. The holding by the Supreme Court that
administrative regulations and other rules promulgated by appropriate authorities must be
adhered to when operating an aircraft, negates the possibility of a local police agency flying a
UAV aloft for a long period of time for the purposes of gathering intel or surveillance. Current
regulations require line of sight operation and operating under 400 feet (FAA Modernization and
Reform Act , 2012). These two simple rules make it impractical to monitor the public in the way
envisioned by developers of the MALE and HALE platforms. However, this is not to say that the
federal government could not operate systems in this manner, notwithstanding the prohibitions
found in the Posse Comitatus Act. If invoking the possibility of terrorist attack or the need for
border security one can foresee the possibility and perhaps even probability that platforms with
high endurance might be sent aloft and could gather a great deal of information; however, for the
purposes of our discussion the focus is on local law enforcement and not on the deployment of
UAVs by the federal government.

Perhaps the most controversial concept addressed in this paper is the possibility of
arming UAVs, which obviously invokes images of autonomous police robots patrolling the
streets in scenes out of science fiction movies. For many, this is a topic of discussion that
requires no debate as there is seemingly no logic for arming a UAV. However, there is ample
evidence that UAVs are particularly well suited for what have been termed 3-D missions.
Obviously, when talking about dull, dirty, or dangerous missions the most dangerous mission is
one in which a life may be lost. The use of armed UAV might in actuality be a safer option for
all involved. Notably, from the standpoint of the operator being able to remotely engage a
suspect without threat of bodily harm to oneself is the greatest advantage and argument for
deploying an armed UAV. However, there may be other salient arguments for their deployment.
For example, when a suspect is confronted with an armed UAV they will instinctively realize
that attacking it is futile, as it will not result in harm to the operator. A suspect confronted with
this scenario might actually be persuaded to stop acting violently as it serves no real purpose. In
the event the suspect should try to attack someone beyond the UAV, the operator of the UAV
could deploy whatever lethal or non-lethal means necessary, in much the same manner as a
police sniper providing cover would do. However, considering that a police sniper is limited in
delivering only lethal cover, the option of a UAV equipped with a variety of both lethal and less
than lethal munitions might actually be a better choice. Interestingly, the proliferation of less
than lethal options equipped by the average police officer are intended to mitigate the number of
lethal confrontations that police have with suspects, and a UAV equipped likewise serves a
similar function.
Dunn raises the philosophical question that must be asked and answered, when he posits
that with the calculus of risk removed from the equation deploying lethal force is done with

greater impunity. If so, one could expect that police officers operating armed UAVs would be
more likely to engage with lethal force than when they were confronted with that same situation
in person. However, another equation is also possible. Would a police officer be more or less
likely to deploy lethal force if their life and limb were not actually at risk? Realizing that they are
not at risk for personal harm makes it equally probable that the officers not needing to protect
themselves from deadly threats would refrain from deploying lethal force. Confrontations such
as this are already covered in most department rules and regulations, and have certainly been
covered by numerous court cases, which have defined the necessary hurdles that must be met
before a police officer can lawfully use deadly force. Nonetheless, this question cannot be
answered without actually placing officers in this situation. Even if a training scenario were
acted out using an armed UAV, the level of stress encountered in a live lethal force situation
would probably never be reached and therefore any conclusion would be subject to scrutiny.
Yet another way of addressing this issue is by looking at the concept of technology
tethering an officer to an armed UAV. In essence, UAVs are remotely operated using basic
technology allowing the operator to see where they need to go. The Supreme Court is already
made it clear that technology used by the police to enhance their senses such as cameras or
telephoto lenses are acceptable and do not violate the Fourth Amendment. Extending this
argument further, one can argue that a police officer assigned as a sniper is using technology
designed to enhance an image from a distance allowing them to discern a threat and respond
accordingly. In this sense, the officer that engages a suspect with lethal force from afar using the
aid of a telescopic sight is in reality doing no more than an officer that might engage a suspect
with lethal force from afar using a UAV. In both instances, the primary sense that is being used
is eyesight.

However, in the case of the UAV there might actually be more technology on board
permitting the operator to not only see but also to hear providing them with even more
information relevant to the decision of using lethal force. In both of these scenarios, lethal force
is applied directly from afar based on the information available to the operator of that particular
technology. If the technology is a rifle equipped with the scope, is that any different from a UAV
equipped with a camera? The answer to that question likely lies within some future court
decision, however this author concludes that arming a UAV is not only probable in the future but
will lessen the number of lethal interactions between the police and the public.
Obviously, arming a drone with a weapon and using it domestically is a highly charged
topic, even arming drones for the military is a relatively new endeavor. However, because of
their abilities and the array of formidable technologies, which can be deployed upon them,
arming drones becomes a natural extension of their capabilities. As we have seen with many
military technologies and tactics, domestic law enforcement agencies are early innovators and
adopters of technology. Obviously, in this situation there must be ample discussion, legislation,
and case law and order to reach the point where a legislative body might even consider the
possibility of arming a drone. Nonetheless, there is precedent set by the military in an effort to
reduce risk to members of the armed forces. Some will argue that arming drones and deploying
them domestically would be analogous with depriving a citizen of due process rights. However,
any use of lethal force, regardless of how it is employed, is strictly scrutinized within the
framework of the Fourth and Fifth Amendments.
Moreover, when a police officer elects to employ lethal force that moment in time is not
one in which due process occurs as the police officer is simply reacting to a lethal threat to self
or others. It is for this reason that the deployment of armed drones would likely only occur

during certain situations in which there was necessity to protect the life of another. It is
unreasonable to think that a police officer would use the lethal force available on an armed drone
simply because a suspect threatened the drone with lethal force. On the other hand, if an armed
drone were available for deployment into a situation such as a hostage or barricade where a third
party was being threatened the application of lethal force might be appropriate and more
importantly an option because of the UAV’s ability to reach the scene without risk to the
officer’s life.
As controversial as a subject of arming drones might be, the ability of UAVs conducting
a variety of missions on a multitude of different platforms is unparalleled. The technology
continues to grow and the price continues to drop making these platforms not only desirable but
also affordable. Although there are concerns surrounding the use of UAVs and their impact on
our privacy, the benefits seem to outweigh the negatives. The use of UAVs by domestic police
agencies is on firm legal ground and although there are some aspects of the law which are yet to
be fully realized the bulk of the jurisprudence on the technologies surrounding UAVs indicates
that when used appropriately and within the guidelines mandated by law they are on firm legal
ground.

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