I saw this question posted on the internet today. “Can the FBI legally park a small drone 500 feet over your house with FLIR technology and watch every move everyone in the house makes?”
Here are my thoughts and opinions.
This question has multiple issues but the big ones are (1) FBI being compliant with what the FAA says, (2) the FBI being compliant with what the DOJ says, (3) was there a search for 4th Amendment purposes, and (4) are there any state laws that require a warrant for this type of activity?
The FAA and DOJ have issued guidance on this area.
The FBI is a government agency and such they are only required to comply with certain parts of the regulations. They do not have eyeballs on board the drone so they must seek a waiver to comply with the regulations (specifically the “see and avoid” requirement in Part 91). The FBI applies to the FAA to obtain a Certificate of Waiver. The FAA will give them a COA and they will have to operate under the restrictions given.
The DOJ and President Obama have issued guidance regarding the use of drones. The Presidential memo addresses the DOJ use of drones and privacy rights. https://www.whitehouse.gov/the-press-office/2015/02/15/presidential-memorandum-promoting-economic-competitiveness-while-safegua Also, the DOJ issued guidance for the FBI which is located here. http://www.justice.gov/file/441266/download There would need to be some more investigation to find out if the drone use was in compliance with those two documents and whether any violation would likely change anything.
Lastly, was there a search that violated the 4th Amendment? This area needs to be analyzed under the plain view doctrine and also under Kyllo which discussed FLIR technology and the 4th Amendment.
You should see the case of Florida v. Riley which is a US Supreme Court case which held that a police helicopter at 400ft had a lawful right to be where it was and observe the marijuana. If the FBI drone has a COA and they were at an altitude lawful under the regulations, they had a right to be there observing whatever they wanted to observe.
The next question would be was the use of a FLIR camera a “search” under the 4th Amendment even though the drone is in a lawful place?
The use of FLIR technology does not allow anyone to see INSIDE the house. It would only show a temperature gradient of the OUTSIDE of the house which could show up warm if there is a grow operation in the house. Kyllo v. United States dealt with law enforcement using thermal imaging and the US Supreme Court looked at the equipment and it was a determining fact that the FLIR equipment was “not in general public use[.]” https://en.wikipedia.org/wiki/Kyllo_v._United_States
Fast forward to today where they have handheld FLIR cameras for your iPhone for $150! http://www.amazon.com/FLIR-ONE-Thermal-Imager-iPhone/dp/B00K0PXFB6 I think this case might be decided differently if it came up again because the expectation of privacy is currently diminishing in this area.
Is there a state law requiring law enforcement to obtain a warrant before conducting this type of operation? Many states have started passing laws in this area requiring warrants. This creates the problem of the introduction of illegally obtained evidence, under state law, into a federal court for a criminal prosecution. This brings up all sorts of sub-issues.
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