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In a recent blog article, I explored the legality of K-9 sniffs.  In that article, I concluded that despite the Court's permission of the practice, the Fourth Amendment would consider K-9 sniffs a search.  Further, I urged that allowing law enforcement to sidestep the Fourth Amendment and the Court's ruling in Kyllo v. United States could have further-reaching effects on our privacy rights than we might think.  533 U.S. 27 (2001).

In Kyllo, the Court held that law enforcement's use of infrared technology to detect illegal marijuana grow operations constituted a search and requires a search warrant.  The technology does not enter a building, but allows law enforcement to detect the lights used to grow marijuana.  Similarly, a K-9 sniff allows law enforcement to detect the presence of contraband in a building or vehicle.  When police lack the probable cause or warrant to conduct a search, they are allowed to use a dog to see inside a car or building they have no right to enter.  Real police officers cannot tell what's inside, and use the dogs in much the same way that they used infrared technology prior to Kyllo.  Still, the Court found this practice permissible when it considered the issue of K-9 sniffs during traffic stops.  Illinois v. Caballes, 543 U.S. 405 (2005).  Next, in Florida v. Jardines, the Court will rule whether a K-9 sniff at the front door of a home constitutes a search.  This decision may include reconsideration of Caballes, but could also affect how law enforcement will proceed with the use of drone technology for surveillance.

Police do not need a warrant to fly over a property in a plane or helicopter, but drone technology permits closer, and perhaps even more discrete surveillance of a home.  To what extend will law enforcement be permitted to use this technology to further erode our individual privacy rights?

Currently, the FAA does permit use of drone surveillance by law enforcement.  While not yet widespread, the decreasing cost of this technology could eliminate our expectation of privacy in our own homes.  A window with its curtains drawn, even if 100 yards away from a public street or walkway, will no longer ensure privacy.  Many states have begun to regulate the use of drone technology, but the legislation is mostly in the early stages.  This is an important question of constitutionally guaranteed privacy rights and requires Federal government attention.

US Representative Ed Markey (D-Mass.) has proposed legislation that would, among other things, require a warrant for drone use by law enforcement and would require publication of drone flights on a public website.  If the bill passes, it will have gone a long way toward safe-guarding our privacy rights.  If it doesn't pass, we're in for further erosion of our sacred rights as Americans.  Either way, this is an issue likely to be before the US Supreme Court sooner or later, and one that must be resolved swiftly so as to protect our privacy rights.  Cops looking inside houses with floating cameras would have Thomas Jefferson turning in his grave.  Turning in his grave, drafting a renewed Declaration of Independence.

This issue seriously threatens privacy.  Drone surveillance should require a warrant.

Nicholas M. Loncar, Esq.
Los Angeles Criminal Defense Attorney
t. 818-646-8788 | f: 818-646-8772
MOBILE: 323-803-4352
www.iDefendLosAngeles.com
Nicholas.Loncar@iDefendLosAngeles.com
12198 Ventura Blvd | Suite 207
Studio City, CA | 91604

By Nicholas Loncar

 


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