THE FOURTH AMENDMENT IN THE AGE OF PERSISTENT AERIAL SURVEILLANCE.

• Author: Pavletic, John

TABLE OF CONTENTS INTRODUCTION 172 I. THE FACTS: PERSISTENT AERIAL SURVEILLANCE IN BALTIMORE 174 II. PERSISTENT AERIAL SURVEILLANCE IS AKIN TO GPS 177 MONITORING AND CONSTITUTES A SEARCH A. The Katz Doctrine Indicates that the Manner of the 177 Surveillance Does Not Necessarily Dictate Whether a Search Occurred B. Persistent Aerial Surveillance Is Not Like the Aerial 179 Surveillance that the Court Has Previously Considered C. Persistent Aerial Surveillance is Like GPS Monitoring 184 D. The Mosaic Theory Supports this Classification of 187 Persistent Aerial Surveillance as GPS Monitoring E. The Importance of Persistent Aerial Surveillance Does 193 Not Call for Warrantless Searches in Baltimore CONCLUSION 195 INTRODUCTION

Aerial surveillance by police has existed for as long as humans have been able to fly, and the Supreme Court has had many occasions to address the constitutionality of this type of investigation. (1) This Note looks to the persistent aerial surveillance being deployed in Baltimore and explores whether persistent aerial surveillance is constitutional under the Court's prevailing Fourth Amendment (2) jurisprudence. The Court has found that aerial surveillance is not a search. (3) Persistent aerial surveillance, however, is a search and therefore must be reasonable to be constitutionally permissible. This kind of surveillance differs in both amount and kind from preexisting practices. The emerging technology enables law enforcement to rewind and fast-forward video footage of a metropolitan area over the course of a day, giving them a look into the private lives and routines of ordinary citizens. (4) Thus, there are significant differences in its capabilities and the resulting infringements on privacy rights.

It is unlikely that the persistent aerial surveillance in Baltimore is reasonable because, generally speaking, the Baltimore Police would need to have a warrant and probable cause that a crime is being committed before any evidence of the crime occurred. (5) Indeed, one source indicates that the video analysts employed by the Baltimore Police do not always follow people or cars based on an inference that they are participating in a criminal act. (6) And they do not look at the footage based on an anonymous tip. (7) In short, without probable cause and a warrant, the police can search through the surveillance footage to spy on the citizens of Baltimore.

This Note addresses the constitutionality of persistent aerial surveillance in two major parts. The introduction presents the issue of whether this action constitutes a search and proposes that the persistence of aerial surveillance changes the calculus. Inevitably, lower courts will soon face this added element to the old topic of aerial surveillance. Part I establishes the factual scenario of persistent aerial surveillance in Baltimore. Part II contends that the constancy of persistent aerial surveillance makes this new technology more analogous to a GPS monitor than a security camera for Fourth Amendment purposes. The Note concludes that absent probable cause and a warrant, persistent aerial surveillance is unconstitutional because it violates the reasonable expectations of privacy of U.S. citizens, who do not expect the government to monitor them across cities for hours at a time.

1. THE FACTS: PERSISTENT AERIAL SURVEILLANCE IN BALTIMORE

   During the Iraq War, if a roadside bomb exploded while a surveillance aircraft was in the air, "analysts could zoom in to the exact location of the explosion and rewind to the moment of detonation." (8) They could examine the footage to see if a vehicle had stopped there earlier to plant the explosive. (9) They could follow that car backwards in time to see where it came from and if it stopped at any other locations prior to the bombing location. (10) Additionally, analysts could "fast-forward" from the moment of detonation and determine where the driver went after planting the explosive. (11)

   While use of this technology is accepted in the military, in recent years, it has expanded into civilian life, implicating new constitutional concerns. One such case is in Baltimore, where the Baltimore Police Department ("BPD") has been conducting a trial run of aerial surveillance over its city since January 2016. (12) The BPD contracted with Persistent Surveillance Systems ("PSS"), the company whose technology the military used in Iraq. (13) PSS adapted the technology from military use to civilian surveillance, and the technology is able to monitor an area of thirty square miles. (14)

   The "elevator pitch" for this technology is: "Google Earth with TiVo capability." (15) Small "Cessna" airplanes are equipped with multiple hightech, wide-angle cameras that are able to continuously transmit real-time images to analysts on the ground. (16) These airplanes can fly above the city for around ten hours a day. (17) The footage they capture is archived and stored on hard drives, and police have the capability of retrieving it weeks, or months, later. (18) The analysts are also ready to assist police in investigations as they unfold. (19) Currently, the technology does not produce perfect images: individual cars can be made out, but not their make or model; pedestrians are just pixelated dots, with no way to discern their identity. (20) However, a timeline for every dot can be established by rewinding and fast-forwarding the footage. (21)

   The public was not informed of this surveillance until August 2016 when major media outlets, starting with Bloomberg Businessweek, broke the story. (22) A member of the Maryland House of Delegates stated that this should have been a multilateral decision and that the public has a right to know where, when, and how the surveillance is used. (23) The American Civil Liberties Union ("ACLU") of Maryland also jumped into action, planning legislation that would stop the BPD from adopting new technology without input from the public. (24) ACLU attorney David Roch said, "These tools should not be acquired and deployed in secret... We are not a foreign enemy; this is not a battlefield. Secrecy simply has no place whatsoever in this entire discussion." (25)

   Persistent aerial surveillance, unthinkable two decades ago, is emerging as the technology of tomorrow. The technology has evolved from the military context to commercial use. (26) In 2006, the Pentagon was in search of technology that would detect who was planting the roadside bombs that were killing American soldiers in Iraq. (27) As a result, Angel Fire was born: a wide-area, live-feed surveillance system that could scan an entire city. (28) Back in 2006, the system utilized an assembly of four to six commercially-available industrial imaging cameras. (29) The cameras were positioned at different angles on the bottom of a plane and synchronized to produce a "searchable, constantly updating photographic map." (30)

   The cameras had limits to their abilities then, as they do now. For instance, the analysts could not tell an American soldier apart from an Iraqi civilian. (31) But the point was not to recognize individual perpetrators; instead, it was to follow any car or person backward or forward in time. (32) In 2007, the system was deployed in Fallujah and other important battlegrounds. (33) It was eventually upgraded to include weatherproof equipment and night vision. (34) Later, it was transformed into Blue Devil, which attached narrow-focus zoom lenses to the original wide-area cameras. (35) The technology has since been developed for commercial use; the number of cameras has been increased to twelve, and the assembly has been designed to be lighter and cheaper. (36)

   Since the terrorist attacks on September 11, 2001, the United States has seen a significant investment in video surveillance. (37) Both law enforcement and private businesses have invested in security camera systems. (38) There is some debate about whether the mere presence of cameras reduces crime rates. (39) But the fact remains: a majority of the American public supports their deployment. (40) In November 2015, a Washington Post poll found that of those surveyed, 14% wanted fewer cameras in public. (41) In fact, 41% of respondents wanted more cameras. (42)

   But persistent aerial surveillance differs from other forms of aerial surveillance because of its ability to monitor vast areas for long periods of time. This obliterates the idea that a person's comings and goings are no one's business but their own. So, although this capability may be advantageous from a law enforcement vantage point, it raises significant Fourth Amendment concerns. The Supreme Court has addressed the issue of aerial surveillance on a number of occasions, and thus far, it has consistently concluded that it is not a search. (43) But those types of aerial surveillance did not have the spatial and temporal capabilities that PSS does. Furthermore, these capabilities are the elements that make PSS more intrusive in violating a person's expectation of privacy.

2. PERSISTENT AERIAL SURVEILLANCE IS AKIN TO GPS MONITORING AND CONSTITUTES A SEARCH

   A person's reasonable expectation of privacy is determined by analyzing their individual expectation and what society acknowledges as reasonable. (44) The Court has applied this test to aerial surveillance cases before; however, persistent aerial surveillance is unlike any previous form evaluated. Instead, persistent aerial surveillance is more similar to the GPS-monitoring cases the Court has considered. The mosaic theory supports this argument because this activity should be analyzed collectively. (45) To be sure, persistent aerial surveillance presents many advantages to law enforcement. But potential technological benefits for law enforcement are never enough to evade the reach of the Constitution.

   1. THE KATZ DOCTRINE INDICATES THAT THE MANNER OF THE SURVEILLANCE DOES NOT NECESSARILY DICTATE WHETHER A SEARCH OCCURRED

      The Court crafted the legal test for...