“Some drones are in domestic use already. The EPA has been using them to overfly farms in Nebraska and Iowa to look for any possible violations of the Clean Water Act. Does the agency have any probable cause to conduct such searches? No. The dragnet surveillance violates the Fourth Amendment, but it is being carried out with impunity.”
Did you get distracted and miss that?
No, I did not miss that. My comments stand. The article was written to make it sound like the high court banned the use of GPS tracking. That is what it says. That is not the truth and GPS tracking is still used daily. It requires a search warrant to install and monitor now and that is fine by me.
The courts have generally held if something is in plain view to a person outside the curtilage of a residence it is not protected by the 4th Amendment. It seems unlikely that a successful argument will be made that the airspace above a persons home is protected by the 4th Amendment. What if the view is from at a slight angle - in other words, the aircraft is over your neighbors house/air space looking at your yard. Where does this privacy zone extend? Into space?
A search warrant to view your house from the air might be required one day, but current case law makes this highly unlikely. I would be fine with that too, just like the new requirement for GPS tracking. Warrants require probable cause that a crime has taken place and they are reviewed by the Judge that signs it. They are also subject to intense scrutiny in a criminal proceeding through motions to suppress as well as the appellate process.
The general rule of thumb in law enforcement is that you are clear to observe illegal activity as long as you are lawfully present in the spot from which you observe it. Plain view doctrine even extends to naked men standing in their picture window waving at little girls next door.
National Guard aircraft have been used in domestic counterdrug operations for years. Pole cameras, spotting scopes, trail cameras, and other things are commonly used now. We can’t even begin to guess what new ethical/legal questions we will face in the future when new technology becomes more common.
As always, law enforcement agencies will be restrained by the courts to whom they report and the people that fund their agencies. I actually agree that many aspects of domestic law enforcement are becoming too militarized when there are other options available.
These things concern me too, but that portion of the article seems to have been written to make the layman reader believe the court struck down GPS tracking when they simply said you must get a warrant to conduct it. No problem. The courts are not kind to any cop that goes to far to make a case against somebody and I like it that way because I understand the dangers to individual freedom that would exists absent those safeguards. It terrifies me that many of our freedoms currently seem to hang by one wishy-washy vote on SCOTUS. We never should have reached this point!
The concept of curtilage is interwoven throughout case law and it would be very difficult to extend that to airspace.
Really? How about FLIR, which can show which room you are in and what you are doing?
How about IR lasers which, directed at a window, can record sounds (speech) inside the house?
How about RINT and COMINT? You can observe those from outside the "curtilage" of the sucker's property. Cordless phone? Got you.
All's fair, right? I mean, if it's war on the citizen, well, then, LE has to win! They just have to!