A Move Afoot to Ban USEPA Drones?
Fox News is reporting that Sen. Rand Paul, R-Ky. and Sen. Mike Johanns, R-Neb. are seeking to limit the ability of the USEPA to use drones in aerial surveillance. http://www.foxnews.com/politics/2012/06/14/lawmakers-erect-challenges-to-drones-in-us-airspace/
The USEPA has defended the use of the drones and a cost-efficient way to monitor environmental compliance in rural areas. Sen. Paul is looking to require a warrant before the USEPA uses a drone for a fly-over and Sen. Johanns is seeking to ban the use all together. While I usually come down on the side of the defendants, this is just a ridiculous waste of time. Does a farmer who knowingly violates the law get a free pass only because he was spotted by a drone and not a live person? Would a Cessna with a person in it be also banned? More fundamentally, does a farmer or rancher really have an expectation of privacy out in his fields (as opposed to his house or barn)?
With all due respect, Senators, there is a doctrine called the “open fields” which allows surveillance, without a warrant, as long as you could see it over an open field. I posted about the open fields doctrine on February 9, 2012. The so-called “open fields” doctrine is an exception to the Fourth Amendment search warrant requirement. The open fields doctrine was first set out in the case Hester v. United States, 265 U.S. 57 (1924) which held that the Fourth Amendment protections did not extended to open fields. For example, if you could see the activity from across an open field, no search warrant was necessary. The technical rationale in Hester was that an “open field” is not constitutionally protected because open fields cannot be construed as “persons, houses, papers, [or] effects.”
There is a two part test which establishes what constitutes a search. See Katz v. United States, 389 U.S. 347 (1967). A person must have an actual (subjective) expectation of privacy and that expectation be recognize as reasonable. An expectation of privacy from across an open field has been held to be unreasonable. See Oliver v. United States, 466 U.S. 170 (1984).
Courts have consistently held that entry into an open field is not a search within the meaning of the Fourth Amendment even when the entry is a trespass. The observation of the discharge of the blood into the tributary of the Trinity River by a drone did not constitute a search for purposes of the Fourth Amendment.
Senators, work on the issues related to the economy or the ever expansive US debt, not issues like this that are really nothing more than “noise.”
More later.
As always, feel free to contact me at walter.james@jamespllc.com
WDJiii