To: Chief of Police

From: Jeremy French

Date: February 15, 2016

Subj: Decision Not to Use Personal Drone to Conduct Aerial Observation of Suspects Property

Under Color of Law

While investigating an anonymous tip submitted via the departments crime stoppers

website in regard to drug activity in the Hilltop neighborhood I was approached by a retired DEA

Agent who resided in the community. The retired DEA agent stated that he submitted the tip

about the drug activity and proceeded to provide details of his observations that led him to

believe the occupant of the premises was growing a sizeable marijuana crop on the property.

After careful consideration of the information provided by the retired DEA Agent I concluded

that probable cause existed to request a search warrant for the suspect property.

It was with careful consideration of the Fourth Amendment, applicable case law and

Federal Aviation Administration regulations that led to my decision not to conduct unmanned

aerial surveillance of the property utilizing my personal drone. I favor the warrantless use of

drones for law enforcement and public safety purposes in accordance with the law when the

deployment of drones is appropriate to achieve legitimate law enforcement objectives and where

deployment and use follow sound policies and procedures. In this instance I found probable

cause existed without making a flyover of the property with my personal drone outside of

departmental policy and the regulations established by the FAA for safe and lawful flight of an

unmanned aircraft system (UAS).

In United States v. Causby the Supreme Court set the precedence for regulating airspace.

In its decision the Court determined that airspace is a public highway, otherwise any flight

which flew over private property would result in a trespass violation. The Court qualified this
finding by suggesting, an owner must have exclusive control over the immediate reaches of the

atmosphere above his property in order to exercise full enjoyment of land. Simply put, the

property owner controls the airspace to the height at which he has planted trees or erected

buildings and other structures. This landmark decision struck down the common law doctrine

that persons who owned real property owned it "from the depths to the heavens". Causby

established that for a trespass claim to succeed, the owner must establish that the intrusion

occurred within the immediate reaches of the owners land, and that the intrusion resulted in

interference with use and enjoyment of the land.

That initial precedence has been further cemented in law. In California v. Ciarolo, the

Court found that there was no Fourth Amendment violation when police flew over an

individuals backyard to investigate a marijuana grow because the observation occurred in

publicly navigable airspace. In Florida v. Riley, the Court ruled that the Fourth Amendment

was not violated when police flew over a greenhouse in a helicopter to investigate a marijuana

grow because they were operating in navigable airspace for the type of aircraft being flown.

Furthermore, the Court held that the helicopter did not cause any undue noise, wind, dust or

threat of injury. In Dow Chemical v. United States, the Court ruled that the EPAs warrantless

taking of aerial photographs of a Dow Chemical plant complex from an aircraft in public

navigable airspace was not a search prohibited by the Fourth Amendment. The court further

stated, The open areas of an industrial plant complex such as the petitioners are not analogous

to the curtilage of a dwelling, which is entitled to protection as a place where the occupants have

a reasonable and legitimate expectation of privacy.

The sophisticated cameras on my drone allow for far greater detail than the standard

35mm camera and the naked eye standard used in California v. Ciarolo. The circumstances of

the Hilltop neighborhood case differ from those of the previously mentioned cases for the simple
fact that the FAA now regulates government, civil and recreational use of drones. Governmental

use of drones requires a FAA issued Certificate of Waiver or Authorization (COA) that permits

public agencies to operate a particular aircraft, for a particular purpose, in a particular area. The

COA allows an operator to use a defined block of airspace and includes special safety provisions

unique to the proposed operation. Our department does not have a COA issued by the FAA. The

statutory parameters for recreational use of UASs such as mine are outlined in the FAA

Modernization and Reform Act of 2012. Individuals who fly within the scope of these parameters

do not require permission to operate their drones from the FAA however, any flight outside those

parameters, including any non-recreational purpose, requires FAA authorization.