From the abstract:
Professor Burkoff discusses the constitutional, statutory, and regulatory law applicable to domestic law enforcement agents’ use of unmanned aerial vehicles (“drones”) in the United States. The use of drones by private citizens and law enforcement agencies has been increasing dramatically, raising the specter of unconstrained and unregulated invasions of individual privacy from the sky. The Federal Aviation Administration (FAA) regulates airspace in the U.S. and currently has adopted very strict constraints on the use of drones, except for their use by private hobbyists at low levels and away from heavily populated areas or airports. However, these FAA regulations are in the process of changing to be much more permissive and, in any event, they are ineffectively enforced. Some states, moreover, concerned about privacy issues, have recently enacted statutes restricting the use of drones by law enforcement agencies except in prescribed circumstances, e.g. after obtaining a warrant based upon probable cause. Many more states are considering the enactment of similar legislation.
The important question remains whether or not the Fourth Amendment, the constitutional provision creating constraints on governmental searches and seizures, applies to law enforcement’s use of drones. If it does not, then – absent any other applicable state or FAA prohibition – police agencies would be permitted to use drones whenever they wanted and for whatever purpose they desired, without any restrictions at all on their use. Analyzing the current and changing state of Fourth Amendment doctrine, Professor Burkoff argues that the Fourth Amendment does apply to law enforcement usage of drones in many circumstances. The precise nature of that application remains to be determined, e.g. whether a warrant is required prior to such usage and whether the applicable antecedent justification required is probable cause or reasonable suspicion that the person or place to be observed is engaged in criminal activity. But Burkoff explains that law enforcement officers cannot, in any event, use drones – as a matter of federal constitutional law – when they: (1) are flown outside of navigable airspace; (2) create undue noise, wind, dust, or threat of injury; or (3) obtain any information in an effectively physically intrusive manner from a constitutionally protected area.