DRONE SURVEILLANCE INVADING YOUR PRIVACY
AND SOME FOURTH AMENDMENT THOUGHTS
By Robert C. Bonsib, Esq. and Megan E. Coleman, Esq.
Transitioning from the days of rotary phones and TV sets that carried only three channels to the current era where it seems that there is a new electronic device available every other day – the times and places where we can avoid being tracked, intercepted, and videoed – are quickly diminishing.
Alexis isn’t just listening to us just when we want to play that old favorite, rather she hears us discipline our children and engage in loving or not-so-loving banter with our significant others. EZ Pass bills you for the use of the roadway – but also creates a daily record of your movements.
Our cellphones have become a permanent appendage and an essential organ – having more capacity to store and recall data, numbers, and images than our own brains. Our phones can track our heart rate and the number of steps in a day. Our phones have replaced briefcases and notebooks, now carrying financial, business, and medical information in addition to a wide variety of other personal information.
How many of us have had clients who regret their decisions to have very personal and intimate pictures shared and stored on their cellphones only to have the device seized and the contents downloaded by law enforcement?
Advances in technology that permit ever intrusive types of invasions of our privacy have now required the courts, attorneys, and law enforcement, to rethink notions of how to define “expectation of privacy” when it comes to the Fourth Amendment and traditional legal principals of search and seizure.
Recognizing that a person’s expectation of privacy is invaded when the police stick a hand in your pants and recover an item is a no-brainer. However, what is the constitutional definition of “expectation of privacy” when a new electronic device permits an intrusion and inspection of personal data in new and novel ways?
Search consideration may be different at different stages of a searching process. The seizing of a cellphone may be followed by a visual inspection of what is immediately apparent on the screen. If the screen is in sleep mode – does touching the screen activate the phone so that what was not immediately apparent when the phone was seized, now becomes apparent? If the phone was not turned on – can it be turned on to see what appears on the screen? If there is no password required, can messages, pictures or other data be viewed by manipulating the screen? When is a warrant required? Is it required to view what is immediately apparent if the phone is activated or only when there is a “deep dive” into the contents of the cellphone by the use of the Cellebrite (or similar) forensic program? How long can the phone be held before a search warrant is obtained? Does the right of the police to seize and retain the cellphone evaporate if there is not a prompt obtaining of a search warrant and prompt downloading of the contents of the program? Is the downloading of the entire data of a cellphone, tablet or computer an unconstitutionally overbroad search when the information sought might be very limited in terms of the dates, time or content of the sought-after information? Does the potential inability of law enforcement to conduct a focused search for certain relevant texts justify the complete inspection of the cellphone to include those private and personal conversations? Do traditional notions such as “trespassing” on the curtilage of a residence become inapplicable when advanced surveillance equipment can similarly invade one’s privacy – but without physically trespassing on the curtilage?
How does one advance new concepts of what is “a reasonable expectation of privacy” in challenging the manner in which evidence is obtained and for demanding the application of the requirements of a warrant, or probable cause or even reasonable suspicion?
Observations of items in “plain view” are outside the warrant requirement and do not require probable cause or even reasonable suspicion. But what is “plain view” – when current technology allows law enforcement to see that which has been not so plain and not so easy to observe in the past?
LONG LAKE TOWNSHIP V. MAXON
“WHO’S GOT AN EYE ON YOU!”
A thought-provoking case that shows the need to constantly rethink how we define what is “reasonable” – when we talk about having “a reasonable expectation of privacy” – was decided by the Michigan Court of Appeals in Long Lake Township v. Maxon, — N.W.2d –, (2021 WL 1047366) (decided March 18, 2021). This was a quasi-criminal/civil case in which the owners of a property, that the Township alleged constituted an illegal salvage or junk yard, sought to suppress aerial images of their property taken through the use of a drone.
The landowners contended that their case was distinguishable from prior cases in which manned aerial surveillance and photographing by fixed wing aircraft or helicopters was held to not violate one’s reasonable expectation of privacy. Here the property owners argued that unlike fixed-wing aircraft or helicopters, drones are equipped with high power cameras and do not operate at the same altitude as airplanes and helicopters. The Maxons further argued that the operation of the drone did not comply with the Federal Aviation Administration (FAA) regulations. Finally, the record included photographs that clearly showed that very little, if any, of the Maxon property at issue was visible from the ground due to a combination of buildings and trees.
The Township had the drone operator (who it was agreed was acting as an agent of the Township) submit an Affidavit in which he contended that he maintained a constant visual line of sight of the drone and that the drone operated at an altitude of less than 400 feet and, thus, was in compliance with FAA regulations.
At the trial level, the Maxons’ motion to suppress was denied with the trial court basing its decision on Florida v. Riley, 488 U.S. 445 (1989), in which the Supreme Court held that “the visual observation of the defendant’s premises from a helicopter did not constitute a search under the Fourth Amendment” and further found that the FAA regulations were “safety rules and [did]not define the scope of the Fourth Amendment.” The Supreme Court reached a similar conclusion in California v. Ciraolo, 476 U.S. 207 (1986), where police observed marijuana plants from an aircraft. There the Court stated:
One can reasonably doubt that in 1967 Justice Harlan considered an aircraft within the category of future “electronic” developments that could stealthily intrude upon an individual’s privacy. In an age where private and commercial flight in the public airways is routine, it is unreasonable for respondent to expect that his marijuana plants were constitutionally protected from being observed with the naked eye from an altitude of 1,000 feet. 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.Id. at 215.
The Michigan Court of Appeals noted that the Township did not seriously contest that the area observed by the drone was within the curtilage of the Maxons’ home – so the Court focused on the issue of whether the Maxons had an actual and reasonable expectation of privacy.
The Maxon Court reminded that “[t]he permissibility of ordinary visual surveillance of a home used to be clear because, well into the 20th century, our Fourth Amendment jurisprudence was tied to common-law trespass” and “[v]isual surveillance was unquestionably lawful because ‘the eye cannot by the laws of England be guilty of a trespass.’”
The Maxon Court reviewed the Supreme Court’s opinion and analysis in Kyllo v United States, 533 U.S. 27 (2001), and its discussion on how technological advances might affect decisions as to what privacy expectations society should continue to recognize as reasonable. The Court further observed that with respect to privacy within the home that “the homeowner should not be ‘at the mercy of advancing technology’ that might eventually be able to see directly through the walls outright.”
The Kyllo Court held that the use of a thermal imaging device on an individual’s home to detect whether the heat emanating from within the home was consistent with the high intensity lights used in a marijuana growing operation was a search. It held that the use of sense-enhancing technology to gather any information regarding the interior of home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constituted a “search”.
The Maxon Court concluded that “much like the infrared imaging device discussed in Kyllo; low-altitude, unmanned, specifically-targeted drone surveillance of a private individual’s property is qualitatively different from the kinds of human-operated aircraft overflights permitted by Ciraolo and Riley.” Thus, “drone surveillance of this nature intrudes into persons’ reasonable expectations of privacy, so such surveillance implicates the Fourth Amendment and is illegal without a warrant or a traditional exception to the warrant requirement.”
The Court further found that while noncompliance with the FAA regulations did not, per se, constitute a Fourth Amendment violation, “the drone surveillance of this nature intrudes into persons’ reasonable expectations of privacy” and is illegal without a warrant.
In explaining it decision, the Maxon Court noted that FAA regulations require drone operators to keep the drone within visual observation at all times, fly no higher than 400 feet, refrain from flying over human beings and require a certification and, as a result, drones are qualitatively different from airplanes and helicopters and they fly less than a little more than a football field distance from the ground. A drone is necessarily more intrusive into a person’s private space than would be the case with an aircraft. Further, drone overflights are not commonplace like airplane overflight, and drones are more targeted in nature and intrinsically much easier to deploy. Thus, “given their maneuverability, speed, and stealth, drones are – like thermal imaging devices – capable of drastically exceeding the kind of human limitation that would have been expected by the Founders not just in degree, but in kind.”
While acknowledging that the United States Supreme Court rejected that land ownership extends upward forever, the Maxon Court stated that landowners are still entitled to ownership of some airspace above their properties, such that intrusions into that airspace will constitute a trespass no different from an intrusion on the property itself.
The Maxon opinion pointed out that “just because it is well-known that a particular intrusion into privacy is technologically feasible does not cause a person’s reasonable expectation of privacy to evaporate.” Continuing it stated that “[w]e decide this matter based upon the defendants’ reasonable expectation of privacy – critical to which is that any reasonable person would have expected a low-altitude drone overflight to be trespassory and exceptional, whether the drone flew as high as a football-field length or flew directly up to an open bathroom window.”
Courts will continue to struggle with evolving arguments as to how to apply the Fourth Amendment adopted in the late 1700’s to the current times when the concept of what is a reasonable expectation of privacy implicates concerns and considerations never contemplated by the Founding Fathers.
Another interesting consequence of the courts evolving opinions on what is a reasonable expectation of privacy is how courts deal with searches that when conducted were lawful, but with advanced technology and new concepts of privacy, the search may no longer be lawful. In such circumstances, courts generally find that it is appropriate to apply the good-faith exception to uphold the search, noting that at the time of the search the law enforcement officers were operating in the good-faith belief that the search was lawful and consistent with the then current state of the law.
An example of such an issue was presented in United States v. Aigbekaen, 943 F.3d 713 (4th Cir. 2019). In April of 2015, a minor alerted law enforcement officers that Aigbekaen and another man had trafficked her for sex in three mid-Atlantic states. As part of the investigation that followed, when Aigbekaen returned to the United States from traveling abroad, the Government seized his MacBook Pro laptop, iPhone, and iPod at the airport and conducted warrantless forensic searches of the data on all three devices. The Government subsequently charged Aigbekaen with sex trafficking and related crimes, and at the conclusion of a nine-day trial, the jury convicted him of these crimes.
Aigbekaen appealed, arguing primarily that the warrantless forensic searches of his digital devices violated the Fourth Amendment. The Government countered that the searches fell within the “border search” exception to the warrant requirement and that, in any event, suppression was not appropriate. The Fourth Circuit Court agreed with Aigbekaen that the border search exception did not extend to the challenged searches, rendering them unconstitutional but it agreed with the Government that the good-faith exception to the exclusionary rule bars suppression and affirmed the conviction.
The Fourth Circuit found that the warrantless forensic searches of Aigbekaen’s devices in May of 2015 lacked the requisite nexus to the recognized historic rationales justifying the border search exception. When Aigbekaen landed at the airport with his MacBook Pro, iPhone, and iPod in tow, agents had reasonable suspicion and probable cause to suspect that he had previously committed grave domestic crimes; however, these suspicions were entirely unmoored from the Government’s sovereign interests in protecting national security, collecting or regulating duties, blocking Aigbekaen’s own entry, or excluding contraband. Thus, the Court explained that holding the border search exception applicable here, based simply on the Government’s knowledge of domestic crimes, would “untether” that exception from its well-established justifications.
On the facts of the Aiggekaen case, the reasonableness of requiring law enforcement to secure a warrant before conducting an intrusive forensic search of a traveler’s digital device, solely to seek evidence of crimes with no transnational component, is readily apparent. By the time Aigbekaen arrived at the airport with his devices, and prior to any searches of those devices, agents had probable cause to believe that Aigbekaen’s laptop, at least, contained evidence of domestic sex trafficking. Indeed, in August of 2015, agents secured warrants to search both the MacBook Pro and the iPhone, relying almost exclusively on evidence that was in the agents’ possession before Aigbekaen arrived at the airport in May. Given the information in its possession at the time, the Court held that it was only reasonable to expect the Government to have procured these warrants prior to the May searches.
In contrast, the Court noted that it would be patently unreasonable to permit highly intrusive forensic Government searches of travelers’ digital devices, without warrants, on bases unrelated to the United States’ sovereign authority over its borders. The Court made it clear that it did not question the import of the Government’s general interest in combatting crime, however, it also made clear that it did not agree that this interest categorically eclipses individuals’ privacy interests in the vast troves of data contained on their digital devices when the suspected offenses have little or nothing to do with the border.
The agents who searched Aigbekaen’s devices in May of 2015 reasonably relied on an “established and uniform body of precedent allowing warrantless border searches of digital devices.” Although it had long been understood that the scope of a warrant exception should be tailored to the purposes underlying that exception, no court had yet applied that principle to require a warrant “for any border search, no matter how non-routine or invasive.” The Fourth Circuit noted that only in 2018 did it recognize that “a search initiated at the border could become so attenuated from the rationale for the border search exception that it no longer would fall under that exception” and so require a warrant. With the Aigbekaen opinion, the Fourth Circuit applied that principle to hold unconstitutional an attenuated, warrantless, non-routine forensic search at the border.
Motions seeking to suppress evidence obtained in violation of newly recognized areas where one has a reasonable expectation of privacy may be successful in that the court may agree to recognize the “new” area of privacy protected by the Fourth Amendment – but then refuse to suppress the fruits of the search using the rationale for applying the good-faith exception as was done in Aigbekaen. So, the lesson here is it great to be the one convincing the court to recognize the “new” privacy area – but it may not get your client much relief. You are paving the way for others down the road.
A challenge that new electronic devices present to law enforcement is that they must be aware of the demands of the Fourth Amendment, interpret how it applies to new technology, and then apply the rules to a device that may not be “understanding” of how the Fourth Amendment demands that it be searched. It is one thing to “pop open” the truck or glove box in a car – not so much with that cellphone that packs an electronic punch with respect the volume and type of information it contains.
Such was the challenge in United States v. Cano, 934 F.3d 1002 (9th Cir. 2019). Cano was arrested for carrying cocaine as he attempted to cross into the United States from Mexico at the San Ysidro Port of Entry. Following his arrest, a Customs and Border Protection official seized Cano’s cell phone and searched it, first manually and then using software that accesses all text messages, contacts, call logs, media, and application data. When Cano moved to suppress the evidence obtained from the warrantless searches of his cell phone, the district court held that the searches were valid under the border search exception to the Fourth Amendment’s warrant requirement. Applying precedent in the Ninth Circuit in United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc), the Cano Court concluded that manual cell phone searches may be conducted by border officials without reasonable suspicion but that forensic cell phone searches require reasonable suspicion. It noted that it was clarifying Cotterman by holding that “reasonable suspicion” in this context means that officials must reasonably suspect that the cell phone contains digital contraband and that cell phone searches at the border, whether manual or forensic, must be limited in scope to a search for digital contraband. It held that the law enforcement officials violated the Fourth Amendment when their warrantless searches exceeded the permissible scope of a border search. Accordingly, it held that most of the evidence from the searches of Cano’s cell phone should have been suppressed.
Cotterman dealt with laptop searches at the border. The Cano opinion put laptops and cellphones on the same footing. Cotterman was a United States citizen returning to the United States from Mexico. When he reached the port of entry, border officials noted that Cotterman had various convictions for sexual conduct with children. Concerned that Cotterman might be involved in child sex tourism, officials conducted a brief search of his laptop computers and digital cameras and noted that the laptops had password-protected files. The officials detained the computers for several days in order to run a comprehensive forensic search of the hard drive, which revealed hundreds of images of child pornography. The Court explained that “the legitimacy of the initial search of Cotterman’s electronic devices at the border [was] not in doubt,” “[t]he difficult question … [was] the reasonableness, without a warrant, of the forensic examination that comprehensively analyzed the hard drive of the computer.”
The Cano Court acknowledged the “substantial personal privacy interests” in “[e]lectronic devices … capable of storing warehouses full of information.” At the same time, it recognized “the important security concerns that prevail at the border” and the legitimacy of “[t]he effort to interdict child pornography.” It held that a routine, manual search of files on a laptop computer—“a quick look and unintrusive search”—is reasonable “even without particularized suspicion,” but that officials must “possess a particularized and objective basis for suspecting the person stopped of criminal activity” to engage in a forensic examination, which is “essentially a computer strip search.” It concluded that reasonable suspicion was “a modest, workable standard that is already applied in the extended border search, Terry stop, and other contexts.” Cotterman’s reasoning applies equally to cell phones and the Court recognized in Cotterman that digital devices “contain the most intimate details of our lives” and “the uniquely sensitive nature of data on electronic devices carries with it a significant expectation of privacy,” and the Court found no basis to distinguish a forensic cell phone search from a forensic laptop search.
Concluding, the Court underscored its holding that the manual searches of cell phones at the border are reasonable without individualized suspicion, whereas the forensic examination of a cell phone requires a showing of reasonable suspicion.
The cases reviewed in this article are but a snapshot of the issues the courts are confronting as new technology confronts traditional concepts of what constitutes a “reasonable expectation of privacy.” Just as one might keep a sharp eye out for that drone that may be hovering outside your bedroom window – we should keep a keen eye for how to raise and address new Fourth Amendment privacy concerns as advances in technology continue to affect our daily lives.