Drones and Jones: Rethinking Curtilage Flyover in Light of the Revived Fourth Amendment Trespass Doctrine

• Author: Sean M. Kilbane
• Pages: 249-282

DRONES AND JONES:

RETHINKING CURTILAGE FLYOVER IN LIGHT OF THE

REVIVED FOURTH AMENDMENT TRESPASS DOCTRINE

SEAN M. KILBANE*

I. INTRODUCTION

“I would predict . . . that the first guy who uses a Second Amendment

weapon to bring a drone down that’s been hovering over his house is going

to be a folk hero in this country.”1 While Charles Krauthammer does not

advocate for such action,2 his remarks represent the public apprehension

over the use of unmanned aerial vehicles (UAVs)—commonly known as

drones—flying over U.S. skies.3 According to a recent poll, “64[% of

Americans] are ‘very concerned’ or ‘somewhat concerned’ about their

privacy if U.S. law enforcement uses drones with high-tech cameras.”4

Elected officials across the country, both Republicans and Democrats, have

shared a similar concern.5 Legislatures in all but seven states have

proposed or adopted domestic drone legislation.6 Congress has proposed

Copyright © 2014, Sean M. Kilbane.

* Capital University Law School, J.D. Candidate, May 2014; University of Dayton,

B.A. in Political Science, December 2010. I want to express my gratitude toward Professor

Scott Anderson for his guidance and feedback. I also want to thank Jessica Branner for h er

invaluable contribution and encouragement. Lastly, I want to thank my wife, Laura, for her

patience and love as I wrote this Note.

1 Charles Krauthammer, Special Report with Bret Baier (Fox News television broadcast

May 14, 2012), available at http://www.foxnews.com/on-air/special-report/2012/05/15/

debate-over-using-drones-monitor-american-cities.

2 Id.

3 David Uberti, Rise of the Machines: Domestic Drones Take Of f, MEDILL NAT’L

SECURITY ZONE ( Apr. 3, 2012), http://nationalsecurityzone.org/site/rise-of-the-machines-

domestic-drones-take-off/.

4 Jim Gold, Poll: Americans OK with Some Domestic Drones—But Not to Catch

Speeders, U.S. NEWS ON NBCNEWS.COM (June 13, 2012, 4:15 PM), http://usnews.

nbcnews.com/_news/2012/06/12/12205763-poll-americans-ok-with-some-domestic-drones-

but-not-to-catch-speeders.

5 Dustin Hurst, The Bipartisan Opposition to Domestic Drones, REASON.COM (Jan. 29,

2013), http://reason.com/archives/2013/01/29/the-bipartisan-opposition-domestic-drone.

6 2013 Unmanned Aircraft Systems (UAS) Legislation, NAT’L CONF. ST. LEGISLATURES,

http://www.ncsl.org/issues-research/justice/unmanned-aerial-vehicles.aspx (last visited

Mar. 5, 2014).

250 CAPITAL UNIVERSITY LAW REVIEW [42:249

similar legislation on the federal level, which would allow a law

enforcement agency to operate a drone only with a warrant.7 This

legislation would have exceptions for border patrol purposes, exigent

circumstances, and high-risk terrorist threats.8 U.S. cities also have taken

action; for example, Seattle, Washington, recently terminated its drone

program and returned purchased drone equipment to the manufacturer.9

Concerns over the use of domestic drones stem from new legislation that

encourages the acceleration of drone programs in the United States.10

A. The FAA Modernization and Reform Act of 2012

On February 14, 2012, President Barack Obama signed the FAA

Modernization and Reform Act of 2012 (Act) into law.11 While many

applauded the Act for providing long-term funding to the Federal Aviation

Administration12 (FAA), privacy groups such as the American Civil

Liberties Union (ACLU) criticized the Act because of the “privacy risks

associated with domestic drones.”13 Others stated that “the full-scale

introduction of drones into U.S. skies will inevitably generate a host of

legal issues.”14

The Act requires the Secretary of Transportation to “issue guidance

regarding the operation of public unmanned aircraft systems to . . . provide

for a collaborative process with public agencies to allow for an incremental

7 Greg McNeal, Sen. Paul Proposes Bill Requiring Warrants for Drone Use, FORBES

(June 13, 2012, 12:27 PM), http://www.forbes.com/sites/gregorymcneal/2012/06/13/sen-

paul-proposes-bill-requiring-warrants-for-use-of-drones.

8 Id.

9 Catherine Crump & Jay Stanley, Why Americans Are Saying No to Domestic Drones,

SLATE (Feb. 11, 2013, 3:30 PM), http://www.slate.com/articles/technology/future_tense/

2013/02/domestic_surveillance_drone_bans_are_sweeping_the_nation.html.

10 Neal Conan, Drones Moving from War Zones to the Home Front, NPR (Apr. 7, 2012,

1:00 PM), http://www.npr.org/2012/04/17/150817060/drones-move-from-war-zones-to-the-

home-front.

11 FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, 126 Stat. 11

(codified in scattered sections of 49 U.S.C.); Dan Namowitz, Long-Term FAA Bill Signed

into Law, AIRCRAFT OWNERS & PILOTS ASS’N (Feb. 14, 2012), http://www.aopa.org/

advocacy/articles/2012/120214long-term-faa-bill-signed-into-law.html.

12 Namowitz, supra note 11.

13 Chris Kirk, Domestic Drone Bill Upsets Civil Liberties Advocates, MEDILL NAT'L

SECURITY ZONE (Feb. 10, 2012), http://nationalsecurityzone.org/site/domestic-drone-bill-

upsets-civil-liberties-advocates.

14 ALISSA M. DOLAN & RICKARD M. THOMPSON II, CONG. RESEARCH SERV., R42940,

INTEGRATION OF DRONES INTO DOMESTIC AIRSPACE: SELECTED LEGAL ISSUES 1 (2013).

2014] DRONES AND JONES 251

expansion of access to the national airspace system as technology matures

and the necessary safety analysis and data become available.”15 The Act

also requires the Secretary of Transportation to “enter into agreements with

appropriate government agencies to simplify the process for issuing

certificates of waiver or authorization with respect to applications seeking

authorization to operate public unmanned aircraft systems in the national

airspace system.”16 The certificates of waiver or authorization “allow a

government public safety agency to operate unmanned aircraft weighing

4.4 pounds or less, if operated . . . less than 400 feet above the ground.”17

Some feel that “[d]rones are becoming a darling of law enforcement

authorities across the country.”18 The Department of Homeland Security

has offered grants to local law enforcement agencies to help purchase this

new technolo gy.19 The Federal Bureau of Investigation (FBI) recently

admitted to flying drones in U.S. airspace a total ten times over the past

seven years.20 Stephen Kelly, FBI Assi stant Direct or of Congressional

Affairs, stated that the FBI will use drones to acquire information without a

warrant if individuals do not have a reasonable expectation of privacy.21

However, the FBI has yet to give clarification on how it defines reasonable

expectation of privacy.22

15 FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, § 334(a)(2), 126

Stat. 11, 76.

16 Id. § 334(c)(1).

17 Id. § 334(c)(2)(C)(ii), 126 Stat. at 77. However, the FAA currently allows drones to

weigh up to twenty-five pounds for United States safety agencies. Alan Levin, Drones up

to 25 Pounds Allowed for U.S. Safety Agencies, BLOOMBERG (May 14, 2012, 6:48 PM),

http://www.bloomberg.com/news/2012-05-14/drones-up-to-25-pounds-allowed-for-u-s-

safety-agencies.html.

18 Somni Sengupta, Lawmakers Set Limits on Police in Using Drones, N.Y. TIMES, Feb.

16, 2013, at A1.

19 Id.

20 Cheryl K. Chumley, FBI Tells Sen. Rand Paul: We’ve Used Drones on U.S. Soil 10

Times, WASH. TIMES (July 26, 2013), http://www.washingtontimes.com/news/2013/jul/26/

fbi-tells-sen-rand-paul-weve-used-drones-us-soil-1/.

21 See Letter from Stephen D. Kelly, Assistant Dir. of Cong. Affairs, Fed. Bureau of

Investigation, to Rand Paul, Senator, United States Senate (July 19, 2013), available at

www.paul.senate.gov/files/documents/071913FBIresponse.pdf.

22 Chumley, supra note 20.