Monday, December 12, 2011

Remember the Fourth Amendment? It was nice while it lasted [Updated]

This is exactly why the ostensible privacy advocates clamoring for a "subject-based" approach to Fourth Amendment jurisprudence are making a horrible, horrible mistake:
The Los Angeles Times reports that police in North Dakota this past summer made what are believed to be the first arrests of U.S. citizens with the help of a Predator spy drone.

Nelson County Sheriff Kelly Janke called in the unmanned, unarmed aircraft after he was chased off of a family farm by three men with rifles, the Times explains. It circled the 3,000-acre plot, tracked down the suspects and showed they were unarmed, allowing police to converge and arrest them.

Local police said they have also used Predators for at least two dozen surveillance flights in recent months.
It seems at least plausible that in the most recent case, a warrant was obtained. But I seriously doubt that warrants were issued for all of the dozens of "surveillance flights." Not that you'd have a prayer of challenging a secret search conducted from 30,000 feet, anyway.

Update: according to the original story, the officers did have a warrant. But speaking as someone with more than a passing familiarity with the development of Fourth Amendment law, it's only a matter of time until cops start ignoring the warrant altogether.

Drones actually set up an interesting theoretical question for courts. It's clearly permissible for the government to conduct a search of a property from a low-flying airplane. But there's also always been an implicit floor -- officers can't sit in a helicopter 50 feet above a house and watch you through your sunroof. But drones, if anything, create the opposite scenario: the risk they pose comes from them being too far away to be noticed.

It raises, in unusually stark terms, the question of which interests the Fourth Amendment protects, and what it's intended to guard against. Obnoxious and disruptive searches (in which case, drones are probably okay)? Secret and invasive searches that are difficult to guard against (in which case, they're probably not)? Or is the Fourth Amendment entirely agnostic to the method of the search being conducted, and only intended to protect specific subjects, areas, and spaces (in which case, officers can go absolutely hog wild with drones, so long as they keep their cameras away from private residences)?

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