Drones and the Fourth Amendment

Recorded On: 09/29/2020

   Does the Fourth Amendment apply when officers use a drone to fly over a person’s house? The Supreme Court has ruled that individuals lack a reasonable expectation of privacy in the airspace above their property and that police could therefore conduct warrant-less aerial surveillance of private property without running afoul of the Fourth Amendment. This was established in a pair of decisions dating back to the 1980s. Surveillance in these cases was accomplished with the use of traditional aircraft (i.e. helicopters and fixed-wing airplanes).   What happens, however, when aerial surveillance is conducted with modern-day drone technology rather than traditional aircraft? Does the Fourth Amendment analysis change? Does such surveillance rise to the level of a search for purposes of the Fourth Amendment?  And, does reliance on FAA flight safety rules continue to provide the guidance needed to determine not only safe air operations but also Fourth Amendment protections? Neither Congress nor the Supreme Court have provided guidance on these important issues. This one-hour presentation will discuss the potential Fourth Amendment implications of drone surveillance by law enforcement today. We will explore the current state of the law, what we know, and questions still remaining regarding this new technological frontier.

Mary Mara

Attorney-Advisor (Instructor)

Federal Law Enforcement Training Center (FLETC)

   Mary Mara currently serves as an Attorney-Advisor (Instructor) with the Federal Law Enforcement Training Center (FLETC).  In this position, she instructs both new and experienced law enforcement officers on wide variety of complex legal issues facing law enforcement today such as legal aspects regarding use of force, Constitutional law, officer liability, courtroom testimony, and federal criminal law and court procedures. 

   Prior to joining FLETC in 2017, Ms. Mara worked as a litigation attorney in the Detroit metro area for twenty-eight years.  She spent the first eleven years out of law school working as an Assistant Prosecuting Attorney, prosecuting state law crimes on behalf of the people of the State of Michigan.  In this position, she appeared at thousands of court hearings on behalf of crime victims and tried more than 100 capital felony cases with a special emphasis upon the investigation and prosecution of child sexual predators.  

   Upon leaving the prosecutor’s office, Ms. Mara took a position as Chief of Civil Litigation with the Office of Oakland County Corporation Counsel.  While serving in this role for the next seventeen years, Ms. Mara assumed first-chair responsibility for all aspects of complex civil litigation involving Oakland County with a special emphasis upon the vigorous defense of Oakland County Sheriff Deputies when sued in State or Federal Court for alleged civil rights violations arising under 42 U.S.C. 1983.   When citizen complaints were received by the Sheriff’s Office regarding alleged Deputy misconduct, Ms. Mara provided guidance to the Sheriff regarding the proper scope and direction of internal affairs investigations.  When deputies were disciplined or terminated as a result of alleged misconduct, Ms. Mara represented the County and the Sheriff at ensuing labor arbitration hearings.

   Ms. Mara has been a member of the Michigan Bar since 1991.  She has also been admitted to practice in the United States District Court for the Eastern District of Michigan and the Sixth Circuit Court of Appeals in Cincinnati, Ohio.  She is a graduate of Michigan State University (B.A. James Madison College), Michigan State University College of Law (J.D., magna cum laude) and the Thomas M. Cooley Law School (L.L.M. with honors, Homeland and National Security Law).

Henry W. McGowen

Attorney-Advisor (Senior Instructor)

Artesia Legal Division of the Office of Chief Counsel at the Federal Law Enforcement Training Centers (FLETC)

   Henry W. McGowen is an Attorney-Advisor (Senior Instructor) in the Artesia Legal Division of the Office of Chief Counsel at the Federal Law Enforcement Training Centers (FLETC) in Artesia, NM. His role includes providing legal instruction for federal law enforcement candidates in the classroom as well as in operational skills and use of force labs. He is the legal point of contact for unmanned aerial craft at the Artesia campus for FLETC. Mr. McGowen also provides education for external audiences through developing and delivering webinars as well as export training events for federal, state, local and tribal law enforcement officers. Additionally, he provides instruction for judges, prosecutors and senior law enforcement officers from around the world at the International Law Enforcement Academy (ILEA) in Roswell, NM.

   Prior to joining FLETC, Mr. McGowen taught international comparative law at St. Mary’s University School of Law in San Antonio, TX. Mr. McGowen also spent a decade abroad working in international legal development and judicial reform programs supported by the U.S. Department of State. He has spent many years in the criminal justice system serving as a municipal judge, a state prosecutor, a briefing attorney for a U.S. District Judge and as an attorney in private practice. Mr. McGowen is a graduate of the University of Texas where he earned a BA in Economics in 1988; from St. Mary’s University School of Law where he earned a Juris Doctor in 1994; and from the University of Notre Dame where he earned an Executive Certificate in Management and Leadership in 2009.

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Open to view video. Does the Fourth Amendment apply when officers use a drone to fly over a person’s house? The Supreme Court has ruled that individuals lack a reasonable expectation of privacy in the airspace above their property and that police could therefore conduct warrant-less aerial surveillance of private property without running afoul of the Fourth Amendment. This was established in a pair of decisions dating back to the 1980s. Surveillance in these cases was accomplished with the use of traditional aircraft (i.e. helicopters and fixed-wing airplanes).   What happens, however, when aerial surveillance is conducted with modern-day drone technology rather than traditional aircraft? Does the Fourth Amendment analysis change? Does such surveillance rise to the level of a search for purposes of the Fourth Amendment?  And, does reliance on FAA flight safety rules continue to provide the guidance needed to determine not only safe air operations but also Fourth Amendment protections? Neither Congress nor the Supreme Court have provided guidance on these important issues. This one-hour presentation will discuss the potential Fourth Amendment implications of drone surveillance by law enforcement today. We will explore the current state of the law, what we know, and questions still remaining regarding this new technological frontier.