Should The Use Of Drones By The Government Require A Warrant?

[Patranus]

Apparently there is a big push by federal, state, and local governments to use drones to track people.

Should the use of a drone by the government require a warrant?
Or should drones be used to track people without a warrant as you are in public space?

I for one think it is a huge overstep. If you are not breaking the law (thus allowing the government to get a warrant) then the government should have ZERO ability to track you by any means.

 

[Texashiker]

How is a drone any different then a car following someone?

 

[dank69]

FYI you should make the poll match the title.

 

[Capt Caveman]

How is a drone any different then a car following someone?

And do you need a warrant to do this?

 

[airdata]

How is a drone any different then a car following someone?

 

[brandonb]

Government shouldn't be able to do anything without a warrant in my opinion. Unless someone has given the police a reasonable suspicion (or probable cause) they should just leave you alone. It is in our bill of rights after all.

 

[Texashiker]

And do you need a warrant to do this?

As far as I know, no.

Once you leave your home, there is no reasonable expectation of privacy.

 

[fskimospy]

As far as I know, no.

Once you leave your home, there is no reasonable expectation of privacy.

Actually not really true.

This recent case on GPS surveillance: http://en.wikipedia.org/wiki/United_States_v._Antoine_Jones casts some pretty heavy doubt on that.

While it was technically decided on the grounds that attaching the GPS was an unlawful search, the USSC seemed pretty sympathetic to the idea that it was also a violation of privacy. I would imagine these drones would be challenged in the future and I can see a decent probability that warrants will be required for them as well.

 

[BoberFett]

As far as I know, no.

Once you leave your home, there is no reasonable expectation of privacy.

A police car driving a patrol route is one thing.

A police car trailling someone everywhere they go is another.

 

[Texashiker]

Actually not really true.

This recent case on GPS surveillance: http://en.wikipedia.org/wiki/United_States_v._Antoine_Jones casts some pretty heavy doubt on that.

While it was technically decided on the grounds that attaching the GPS was an unlawful search, the USSC seemed pretty sympathetic to the idea that it was also a violation of privacy. I would imagine these drones would be challenged in the future and I can see a decent probability that warrants will be required for them as well.

I was wondering when someone was going to bring that case up.

There is a difference in following someone, and jumping in the back of their car and hitching a ride.

The main difference I see between the drone and the GPS case:

GPS - law enforcement encroached into the suspects personal/private space. Crawling under the car/suv to attach a device is encroaching or otherwise trespassing. You would not expect a reasonable person to be crawling under your car.

Drone - observation from a distance.

If drones require a warrant, would police need a warrant to simply watch a suspect?

A police car trailling someone everywhere they go is another.

Are police required to have a warrant to follow someone?

 

[woolfe9999]

This is essentially the exact same issue as attaching tracking devices on cars, except it's less intrusive because they aren't touching your property. There is no reasonable expectation of privacy in public. If the police can't track you with a drone, then they can't follow someone in public in a car. The cops can't do their jobs if they need a warrant for every form of investigatory activity they undertake. You need probable cause to get a warrant. You may not even be able to GET probable cause if every form of investigation requires a warrant to begin with.

By the way, law enforcement has been tracking vehicular speed with aircraft for ages. It's pretty much the same thing. Is that not OK but it's OK if it's a cop on the ground with a radar gun?

The vote count isn't surprising. This forum has a strong civil libertarian bent. It's still wrong.

 

[fskimospy]

I was wondering when someone was going to bring that case up.

There is a difference in following someone, and jumping in the back of their car and hitching a ride.

The main difference I see between the drone and the GPS case:

GPS - law enforcement encroached into the suspects personal/private space. Crawling under the car/suv to attach a device is encroaching or otherwise trespassing. You would not expect a reasonable person to be crawling under your car.

Drone - observation from a distance.

If drones require a warrant, would police need a warrant to simply watch a suspect?




Are police required to have a warrant to follow someone?

Like I said, in the GPS case the USSC did not specifically rule on this issue, but in their decision they spoke pretty sympathetically on such an issue. I believe it is fairly likely they would rule so in the future.

As for a warrant on following people, it depends on how they are following them. Usually no, but sometimes yes. If you go look at the various papers from the decision though, it appears that the USSC is strongly considering requiring warrants for things like this.

 

[fskimospy]

This is essentially the exact same issue as attaching tracking devices on cars, except it's less intrusive because they aren't touching your property. There is no reasonable expectation of privacy in public. If the police can't track you with a drone, then they can't follow someone in public in a car. The cops can't do their jobs if they need a warrant for every form of investigatory activity they undertake. You need probable cause to get a warrant. You may not even be able to GET probable cause if every form of investigation requires a warrant to begin with.

By the way, law enforcement has been tracking vehicular speed with aircraft for ages. It's pretty much the same thing. Is that not OK but it's OK if it's a cop on the ground with a radar gun?

The vote count isn't surprising. This forum has a strong civil libertarian bent. It's still wrong.

How do you square this with the court's appearing sympathy towards outlawing GPS on privacy grounds as well?

 

[Hayabusa Rider]

Actually not really true.

This recent case on GPS surveillance: http://en.wikipedia.org/wiki/United_States_v._Antoine_Jones casts some pretty heavy doubt on that.

While it was technically decided on the grounds that attaching the GPS was an unlawful search, the USSC seemed pretty sympathetic to the idea that it was also a violation of privacy. I would imagine these drones would be challenged in the future and I can see a decent probability that warrants will be required for them as well.

Agreed. If someone is under
surveillance then there ought to be a warrant attached.

 

[Hayabusa Rider]

This is essentially the exact same issue as attaching tracking devices on cars, except it's less intrusive because they aren't touching your property. There is no reasonable expectation of privacy in public. If the police can't track you with a drone, then they can't follow someone in public in a car. The cops can't do their jobs if they need a warrant for every form of investigatory activity they undertake. You need probable cause to get a warrant. You may not even be able to GET probable cause if every form of investigation requires a warrant to begin with.

By the way, law enforcement has been tracking vehicular speed with aircraft for ages. It's pretty much the same thing. Is that not OK but it's OK if it's a cop on the ground with a radar gun?

The vote count isn't surprising. This forum has a strong civil libertarian bent. It's still wrong.

If someone is being watched for probable cause then no warrant need be issued, however if this is part of a criminal investigation? Yes, there needs to be one IMO.

 

[BoberFett]

The vote count isn't surprising. This forum has a strong civil libertarian bent. It's still wrong.

Democracy is wrong when it disagrees with you? Dictators throughout history would be proud.

 

[woolfe9999]

Democracy is wrong when it disagrees with you? Dictators throughout history would be proud.

LOL@ equating an internet forum poll with "democracy." No, the majority opinion is wrong for the reasons I gave in my post, which you clipped and didn't reply to.

 

[woolfe9999]

How do you square this with the court's appearing sympathy towards outlawing GPS on privacy grounds as well?

It easily squares, and the clue to why is already in my post. The majority opinion in that case specifically ruled on the ground that physically placing the tracking device on the citizen's car violated personal property rights. They declined to rule that there was a reasonable expectation of privacy such that it wouldn't be allowed on 4th Amendment grounds. That, BTW, was the position of the dissent.

I don't think you'll ever see a majority SCOTUS say this is unconstitutional. If it's unconstitutional to track someone from an unmanned plane, then similarly you can't track speed with aircraft, or even put a tale on someone. Not gonna happen.

 

[PokerGuy]

By the way, law enforcement has been tracking vehicular speed with aircraft for ages. It's pretty much the same thing.

No, that's not nearly the same thing. That plane is flying a specific route (ie, a patrol), and checking speeds during that patrol, just like an officer clocking with a radar gun is checking speeds at a specific location. They're not checking any particular vehicle, they're checking any vehicle at that location.

That's entirely different than an officer following a specific vehicle around (by drone or any other way) to monitor movement. That should not be allowed to happen without a warrant (which requires probable cause).

 

[woolfe9999]

If someone is being watched for probable cause then no warrant need be issued, however if this is part of a criminal investigation? Yes, there needs to be one IMO.

I've read this reply twice and I don't understand the distinction you are trying to make. The police can have a suspicion that someone committed a crime but not have enough evidence for probable cause. They gather that evidence through whatever means they can that do not require probable cause to begin with. Then if they get probable cause through those techniques, they can get a warrant and conduct more intrusive investigatory activities, like a domicile search. In either situation, it is a criminal investigation, at different stages. The prohibitions that people are suggesting here would hamper that initial stage and make it much more difficult to get to the next stage.

 

[woolfe9999]

No, that's not nearly the same thing. That plane is flying a specific route (ie, a patrol), and checking speeds during that patrol, just like an officer clocking with a radar gun is checking speeds at a specific location. They're not checking any particular vehicle, they're checking any vehicle at that location.

That's entirely different than an officer following a specific vehicle around (by drone or any other way) to monitor movement. That should not be allowed to happen without a warrant (which requires probable cause).

Fair enough. Doesn't matter though since you don't have an expectation of privacy when on public roads, at least not as to your location (a private conversation inside your vehicle is another matter of course.) If anyone can see where you are just be standing on the sidewalk, then the 4th Amendment doesn't apply. Try distinguishing tracking a vehicle by aircraft versus putting a tale on someone. Except that one is higher tech, there isn't one.

 

[fskimospy]

It easily squares, and the clue to why is already in my post. The majority opinion in that case specifically ruled on the ground that physically placing the tracking device on the citizen's car violated personal property rights. They declined to rule that there was a reasonable expectation of privacy such that it wouldn't be allowed on 4th Amendment grounds. That, BTW, was the position of the dissent.

I don't think you'll ever see a majority SCOTUS say this is unconstitutional. If it's unconstitutional to track someone from an unmanned plane, then similarly you can't track speed with aircraft, or even put a tale on someone. Not gonna happen.

But the majority did not rule that privacy was not an issue, they just said that it was not necessary to go into it then. The privacy argument wasn't part of a dissent, just a concurrence, and 4 justices signed onto the privacy argument.

Scalia for his part, explicitly left open the door to vote in favor of such an argument in the future as well... and that's 5 justices right there. Sotomayor also expressed sympathies for it. (although I have trouble seeing either Roberts or Thomas getting on board with it) I guess I am unconvinced that this is as unlikely as you think. This is particularly true in that the justices noted the perpetual nature of this sort of surveillence, which they viewed as markedly different than putting a tail on someone.

http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf

That's the opinion, and while I'm no lawyer I don't think that it is quite so cut and dry.

 

[woolfe9999]

But the majority did not rule that privacy was not an issue, they just said that it was not necessary to go into it then. The privacy argument wasn't part of a dissent, just a concurrence, and 4 justices signed onto the privacy argument.

Scalia for his part, explicitly left open the door to vote in favor of such an argument in the future as well... and that's 5 justices right there. Sotomayor also expressed sympathies for it. (although I have trouble seeing either Roberts or Thomas getting on board with it) I guess I am unconvinced that this is as unlikely as you think. This is particularly true in that the justices noted the perpetual nature of this sort of surveillence, which they viewed as markedly different than putting a tail on someone.

http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf

That's the opinion, and while I'm no lawyer I don't think that it is quite so cut and dry.

Yeah maybe. Perhaps I am expressing my own incredulity about it more than making a prediction of future SCOTUS rulings. The fact is, if tracking via plane, without the physical intrusion of the GPS device, is unconstitutional on privacy grounds, then other things that the cops have been doing since forever are also going to be unconstitutional. And the logic of it is rather dumbfounding. Anyone can see where you are when you're on a public roadway. Do the cops need to walk around with eye patches and seeing eye dogs because they aren't allowed to look at anyone in public unless they have a warrant? Or are eyeballs OK and just using technology to aid in it that isn't OK? Or is it only a certain level of technology that is a problem? Cars are OK but not planes?

Edit: just re-skimmed the opinion you linked. Look for the discussion of the "Knotts" case in the majority opinion. That precedent would preclude the drone tracking from being unconstitutional, and in fact would have prevented it in that case as well had their not been a physical intrusion into the private property of the complaining party. The Court had to distinguish Knotts for that reason.

 

[Patranus]

Actually not really true.

This recent case on GPS surveillance: http://en.wikipedia.org/wiki/United_States_v._Antoine_Jones casts some pretty heavy doubt on that.

While it was technically decided on the grounds that attaching the GPS was an unlawful search, the USSC seemed pretty sympathetic to the idea that it was also a violation of privacy. I would imagine these drones would be challenged in the future and I can see a decent probability that warrants will be required for them as well.

I have been on several police ride alongs. You don't need a warrant to stalk someone in public space.

 

[fskimospy]

I have been on several police ride alongs. You don't need a warrant to stalk someone in public space.

Of course not, what's your point?