Governor Andrew M. Cuomo just announced the launch of the New York State Police Unmanned Aerial System program, which will be used to support law enforcement missions, including disaster response and traffic safety. The program will allocate Unmanned Aerial Vehicles (“UAV”), to four State Trooper Divisions, or Troops, serving Western, Central, Hudson Valley and the Capital regions of New York State. This announcement adds New York to the growing list of state police forces utilizing drones for public safety.
The Governor declared that the “state-of-the-art technology will improve emergency response, improve operational and cost efficiencies and increase Trooper safety.” The UAVs will be used in a variety of different circumstances in these regions. For instance, UAVs can be deployed in dangerous situations and environments, such as natural disasters, reducing the risk to Troopers on the ground, as well as record and reconstruct serious motor vehicle crashes in shorter time periods, potentially reducing typically lengthy road closures. The UAVs afford flexibility and efficiencies, serving as another tool available to Troopers to assist and protect New Yorkers.
It is not yet clear whether the UAVs will be deployed on an “as needed” basis or routinely incorporated into daily police patrols in these regions. Yet, in light of this authorized use of police UAVs, undoubtedly questions about privacy and personal liberties arise. You may be asking, “Can I be charged with a crime based on video obtained by a police drone flying over my home or business?” These concerns have been the source of great debate about the admissibility of such evidence and have caused organizations, such as the American Civil Liberties Union (ACLU), to get involved in these issues. While the Fourth Amendment protects against illegal searches, it is not clear how such protections apply to UAV flyovers because there has been no definitive ruling from a court applying such a distinct set of facts. In a somewhat related case, the U.S. Supreme Court has said that an individual’s private property is not illegally searched under the Fourth Amendment as long as the aircraft is in navigable airspace. California v. Ciraolo, 476 U.S. 207, 213-214 (1986). In Ciraolo, however, (1) the aircraft at issue was a private plane, and (2) the manned aircraft flew approximately 1000 feet in the air over the home. That is likely a different situation from a UAV flyover because, among other things, UAVs are currently permitted to operate at a much lower altitude than traditional aircraft. Therefore, although Ciraolo provides some guidance, there is no current bright line rule for what constitutes an unreasonable search under the Fourth Amendment involving UAV surveillance.
For its part, the New York State Legislature has introduced privacy bills addressing this conundrum regarding UAV aerial surveillance, including N.Y.S. Senate Bill 1174 that was recently introduced during the 2017-2018 session. Senate Bill 1174 provides for “limitations on the use of a drone by a … law enforcement agency … to gather, store or collect evidence of any type, including audio or video recordings, or both, or other information pertaining to criminal conduct or conduct in violation of a statute or regulation, except to the extent specifically authorized by a valid search warrant.” As a result, aerial surveillance involving a UAV may require a warrant in New York state. But this bill is still working its way through both houses of the Legislature and is not yet the law of the state. Much like the technology itself, this is still an evolving area of the law.