WRAL recently reported that “the Johnston County Sheriff's Office . . . flew a drone over [private] property . . . to locate [stolen construction] equipment.” According to the story, the overflight may have been conducted without a warrant as “[t]here was no . . . warrant on file at the Johnston County Courthouse.” Can they do that? Caveats. There is a lot that we don’t know. The story might be inaccurate or incomplete. There may have been a warrant in Johnston County that was sealed or overlooked. There may have been a warrant in another county, signed by a judicial official with statewide jurisdiction. There may have been exigent circumstances not described in the story. So for purposes of this blog post, let’s not focus on the details of the particular case in question. Instead, let’s ask a more general legal question: absent exigent circumstances, may a law enforcement agency conduct a drone overflight of private property without a warrant? Constitutional considerations. I wrote about the Fourth Amendment limits on drone use in a prior post: [A]ny law enforcement activity involving drones must comply with the Fourth Amendment. However, it is far from clear how the Fourth Amendment applies to drones. Will they be governed by the precedents concerning aircraft flyovers, like California v. Ciraolo, 476 U.S. 207 (1986), which generally allow considerable leeway to law enforcement? Does the increasing prevalence of hobbyists’ drones mean that there can be no reasonable expectation of privacy from drones? Or does the existence [...]
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