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In Katz v. United States<\/u>, Justice Harlan set forth the test for a reasonable expectation of privacy\u2014(1) a person must manifest a subjective belief that he had privacy and (2) society must find the person’s belief is objectionably reasonable.[6]<\/a>\u00a0 I (probably like most people) thought I had a reasonable expectation of privacy on my property.\u00a0 But as drones, like the model my fianc\u00e9 purchased, become increasingly common, my expectation of privacy seems less reasonable under the second prong of Justice Harlan’s test.\u00a0 In fact, (according to two Supreme Court decisions) my expectation of privacy has not been reasonable for a while.\u00a0 In California v. Ciraolo<\/u>, police officers flew over the defendant’s backyard (at an altitude of approximately 1,000 feet) and discovered marijuana.[7]<\/a>\u00a0 In that case, the Supreme Court did not find a violation of the defendant’s Fourth Amendment right.[8]<\/a>\u00a0 The Court stated, “The Fourth Amendment simply does not require the police traveling in the public airways at this altitude to obtain a warrant in order to observe what is visible to the naked eye.”[9]<\/a>\u00a0 Similarly, in Florida v. Riley<\/u>, police officers flew a helicopter over the defendant’s greenhouse (at an altitude of approximately 400 feet) and discovered\u2014through two open roof panels\u2014marijuana.[10]<\/a>\u00a0 In that case, the Supreme Court, again, did not find a violation of the defendant’s Fourth Amendment right.[11]<\/a> \u00a0Under Justice Harlan’s reasonable expectation of privacy test, the defendant passed the first prong and failed the second prong.[12]<\/a><\/p>\n <\/p>\n Will the Supreme Court’s rulings in California v. Ciraolo<\/u> and Florida v. Riley<\/u> extend to drones used by law enforcement?\u00a0 I think so.\u00a0 Like a helicopter or private plane, a drone can fly in public airspace and fly at the same altitudes.\u00a0 One of the biggest differences is that, unlike a helicopter or plane, a police officer does not “observe what is visible to the naked eye” with a drone.\u00a0 Rather a police officer observes what is visible to a camera.\u00a0 In light of the facts in Florida v. Riley<\/u>, this distinction seems irrelevant.\u00a0 Because a police officer observed marijuana\u2014through two open roof panels\u2014at a height of 400 feet, it’s hard to believe that they observed marijuana with the “naked eye.”\u00a0 Under California v. Ciraolo<\/u> and Florida v. Riley<\/u>, I think warrantless drone use by law enforcement is permissible.<\/p>\n <\/p>\n [1]<\/a> See<\/em> DJI Mini 2 Fly More Combo Quadcopter with Remote Controller<\/em>, Best Buy (https:\/\/www.bestbuy.com\/site\/dji-mini-2-fly-more-combo-quadcopter-with-remote-controller\/6435268.p?skuId=6435268).<\/p>\n [2]<\/a> Id.<\/em><\/p>\n [3]<\/a> Id.<\/em><\/p>\n [4]<\/a> UAS by the Numbers<\/em>, Federal Aviation Administration (Mar. 22, 2021 2:32 PM) (https:\/\/www.faa.gov\/uas\/resources\/by_the_numbers).<\/p>\n [5]<\/a>\u00a0Id.<\/em><\/p>\n [6]<\/a> See<\/em> Katz v. United States<\/em>, 389 U.S. 347 (1967).<\/p>\n [7]<\/a> See California v. Ciraolo<\/em>, 476 U.S. 207 (1986).<\/p>\n [8]<\/a> Id.<\/em><\/p>\n [9]<\/a> Id.<\/em><\/p>\n [10]<\/a> See<\/em> Florida v. Riley<\/em>, 488 U.S. 445 (1989).<\/p>\n
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