No Warrant; No Drone Footage in Court

[Eagle928]

Look for this kind of thing to become more prevalent in the emerging drone hobby and profession. Be involved as necessary to combat stupidity within the drone community, the general public, and the legal system/legislation. Most of us have had to do battle against control freaks before. This is no different.

 

[MapMaker53]

This is particularly interesting to me because I flew this exact situation this week for a resident who believes his neighbor has built beyond the town approved plans. (Actually, I flew it for his attorney.) The mapping mission was conducted at 300 ft AGL and traversed the subject property (as well as two neighboring properties during the mission) 4 times for a total of 7 minutes. At no time did I hover, and the drone was kept in VLOS the entire time. At 300 ft AGL, I clearly disturbed no one as the local landscaper's leaf blowers were louder than my drone. It will be interesting to see if the single (stitched) orthomosaic photo makes it into the town hearing. Not much different than presenting a Google Earth image, with better resolution and up to date.

 

[adm_geomatics]

I agree 100%. Using a drone for legal action against a citizen should not be conducted in secrecy and if it is so done then it should be considered a violation of the 4th amendment. This has nothing to do with mapping, It breaks existing regulations of loitering a surveillance. Municipalities and even HOA’s have the ability to ban drones within their limits without consent. Just be professional, open and communicative. An example would be our protocol in construction of when flying adjacent to an existing subdivision which would require flight over those properties is taking less than an hour to put one of our business cards with a sticker on the back at their front door which states our intentions and welcoming contact for questions. Of the 10 or so times that I have done this I have gotten two calls and both of them were residents interested in knowing more about the profession and/or interest in watching. We have nothing to hide, common sense.

Now in the scenario of the use to inspect infringement of property lines is a legal action and if not conducted by a Registered Professional Land Surveyor is also asking for it. You can be employed by a Surveyor, but stepping into a legal dispute is not our place and honestly a little daft. This is a perfect example of why State Boards of Surveyors are starting to come after Drone Service Providers that in any way portray themselves as providing a service within their bounds. Lesson is - keep the word survey out of anything to do with drones unless hired by an RPLS.

 

[R.Perry]

I think you all are missing something here. Once air born the only authority governing drone flights is the FAA. The commentator doesn't know the difference between a warrant and search warrant. To get a search warrant from a judge you must prove justifiable reasons for the search warrant.

One of the HOAs in a nearby city attempted to keep a drone from filming a house that was going on the market for sale. They were successful in keeping the drone from launching within the HOA. The pilot launched outside the HOA, flew in and photographed the home. The HOA president attempted to get the pilot arrested, didn't work he was told as long as the drone didn't take of or land within the HOA jurisdiction the police had no authority. Not sure if they went to the FAA with their complaint.

What is the difference between a helicopter overflying your property and a drone?

Where I live we have many illegal pot farms and meth labs. The DEA uses drones and aircraft to find these places, is that an invasion of privacy?

 

[MapMaker53]

Lesson is - keep the word survey out of anything to do with drones unless hired by an RPLS.

The word "survey" is not owned by Registered Professional Land Surveyors. It has a number of meanings, including "to observe". Anyone who feels they have the right to privacy when being observed in the open, from Federally mandated public space in the sky above is a bit naive these days. Drone mapping is no different than what Google Earth or any number of other U.S. and international satellites do every day, except that a drone flight is lower. Hypothetically, I bet if my aerial photograph was presented at the hearing as being a Google Earth image it would be perfectly acceptable as evidence -- because people have gotten used to Google Earth images. And for the record, my flight had nothing to do with surveying property lines, so there was no need to hire a Registered Professional Land Surveyor in this case. Whether the image will be allowed in the hearing is an argument for the lawyers.

 

[adm_geomatics]

The word "survey" is not owned by Registered Professional Land Surveyors. It has a number of meanings, including "to observe". Anyone who feels they have the right to privacy when being observed in the open, from Federally mandated public space in the sky above is a bit naive these days. Drone mapping is no different than what Google Earth or any number of other U.S. and international satellites do every day, except that a drone flight is lower. Hypothetically, I bet if my aerial photograph was presented at the hearing as being a Google Earth image it would be perfectly acceptable as evidence -- because people have gotten used to Google Earth images. And for the record, my flight had nothing to do with surveying property lines, so there was no need to hire a Registered Professional Land Surveyor in this case. Whether the image will be allowed in the hearing is an argument for the lawyers.

Noone said that the word is owned by anybody. Simply that it is a catalyst for potential legal problems, especially if you live in North Carolina or California. The purpose of the flight as you stated was to settle an encroachment on property thus a property line dispute. Just an observation from someone who has been in both worlds.

 

[MapMaker53]

I did not state it was an encroachment on property. It involves a violation of zoning rules, without getting into detail. I can appreciate that you are on both sides of this issue and that conducting an aerial mapping mission without a state issued professional surveying license and passing it off as a professional survey would be illegal to do. That is not what I am doing. If it was a property boundary dispute, we would have certainly hired a surveyor. But in this case, we didn't need one.

What I stated was that the neighbor has built beyond the town approved plans. That just means the construction was more extensive than approved. It didn't cross over into the neighbor's property, but there are environmental issues in question.

 

[adm_geomatics]

I did not state it was an encroachment on property. It involves a violation of zoning rules, without getting into detail. I can appreciate that you are on both sides of this issue and that conducting an aerial mapping mission without a state issued professional surveying license and passing it off as a professional survey would be illegal to do. That is not what I am doing. If it was a property boundary dispute, we would have certainly hired a surveyor. But in this case, we didn't need one.

What I stated was that the neighbor has built beyond the town approved plans. That just means the construction was more extensive than approved. It didn't cross over into the neighbor's property, but there are environmental issues in question.

Now I get it. I mistook beyond approved plans as a property concern and that the drone was mapping for positional verification whether it be a property line or easement. So what does beyond mean and how did a drone aid that investigation? Built into a floodplain is one I can think of. Just curious of the use-case.

 

[adm_geomatics]

Received an email from a Drone Attorney we follow. A little bit of excess, but the real legal perspective rather than some guy spouting.

Long Lake Township v. Maxon (4th Amendment & Drones)

Long Lake Township hired a drone company to take pictures of the Maxon’s property to establish that the property was an illegal salvage yard. Long Lake Township filed a civil action against the Maxon’s and used photographs gathered from the drone as evidence. The Maxon’s moved to suppress the...

jrupprechtlaw.com

 

[MapMaker53]

At this point I'm not comfortable discussing details in an open forum as the public hearing has not occurred yet. I know a bit silly of me considering the level of anonymity here, but all I can say is it has to do with use of land and environment that we suspect has gone beyond what is spelled out by the town regulations and the architectural plans that had been submitted to and approved by the town Building Department. I can fill in more details once the issue has been publicly litigated.

 

[MapMaker53]

Received an email from a Drone Attorney we follow. A little bit of excess, but the real legal perspective rather than some guy spouting.

Long Lake Township v. Maxon (4th Amendment & Drones)

Long Lake Township hired a drone company to take pictures of the Maxon’s property to establish that the property was an illegal salvage yard. Long Lake Township filed a civil action against the Maxon’s and used photographs gathered from the drone as evidence. The Maxon’s moved to suppress the...

jrupprechtlaw.com

Thanks for the link and article, chasco. I will take some time to read through it with interest. One difference is my firm was not working for the town, but was hired by the neighbor. I don't know if that makes any difference but clearly courts and towns in different states have ruled differently when it comes to drone issues. I don't expect this case to go very far as it seems to be based on an ongoing neighbors spat that may ultimately be dropped.

 

[AMann]

I used to work on a project where a Tax Assessors office of a county in California used aerial photography taken from an airplane to determine if registered “churches” in the county were avoiding property taxes by keeping private property on their lots. It never went to court and there were several cases that overturned the property owners’ property tax exemption status. Invasion of privacy? One thing to note is it the photographs were not actually specifically taken to do this project, they were aerials that the state uses for water and other resource mapping projects taken across parts of California on a annual basis.

 

[adm_geomatics]

At this point I'm not comfortable discussing details in an open forum as the public hearing has not occurred yet. I know a bit silly of me considering the level of anonymity here, but all I can say is it has to do with use of land and environment that we suspect has gone beyond what is spelled out by the town regulations and the architectural plans that had been submitted to and approved by the town Building Department. I can fill in more details once the issue has been publicly litigated.

Totally understand that. In construction we run into the opposite situation many times when we are building into something that wasn't supposed to be there. Our part never goes legal as we are just providing information to the Civil Engineer or Architect and they get in the mess. We also fly for external clients and those requests get a little weird sometimes. Neighbors will be neighbors...

 

[adm_geomatics]

One thing to note is it the photographs were not actually specifically taken to do this project, they were aerials that the state uses for water and other resource mapping projects taken across parts of California on a annual basis.

This is undoubtedly something we deal with every flight. We have to inspect images before publishing to hold subcontractors accountable but also to make sure that we aren't sharing anything that could cause problems. We also do allot of government work and expectations of what can be shared has to be nailed down up front. It's interesting how someone "just happen to see" a potential violation...

 

[MapMaker53]

This discussion does bring up some very good points, including the possibility that the drone pilot could potentially be one of the parties named in a lawsuit for infringing on someone's privacy if hired to conduct such a mapping mission. Regardless of whether one wins such a case or not, it would most-likely be a very costly litigation. Maybe the take-away from this would be to make sure your job contract specifies in writing that the hiring entity (company or individual) indemnifies you from any lawsuit that results from privacy issues. In other words, the hiring entity takes full responsibility for that and will cover any related legal costs. Luckily in my case, my work is indemnified by my employer and legal team.

 

[adm_geomatics]

This discussion does bring up some very good points, including the possibility that the drone pilot could potentially be one of the parties named in a lawsuit for infringing on someone's privacy if hired to conduct such a mapping mission. Regardless of whether one wins such a case or not, it would most-likely be a very costly litigation. Maybe the take-away from this would be to make sure your job contract specifies in writing that the hiring entity (company or individual) indemnifies you from any lawsuit that results from privacy issues. In other words, the hiring entity takes full responsibility for that and will cover any related legal costs. Luckily in my case, my work is indemnified by my employer.

100% agree. When I consult other companies who are trying to start their own programs I implore them to understand that the discovery stage is the most crucial step to a successful drone services venture. It should have a specific workflow and be done every time. We need to not only understand the precise need of the client but we need to gently guide them on what is in their best interests. We of course need to cover our rear-ends with proper documentation and common sense of when something might seem a little on the edge. I don't think allot of people that fly commercially take this into account and think that they are just going to show up at a project, be there for an hour or whatever and get out. Serious drone mapping is allot more like surveying where windshield time, setup and teardown are 75% of the work.

 

[CactusJackSlade]

He kept comparing drones to airplanes... I don't think he ever heard of a helicopter??!

 

[Rex]

When, if or ever the FAA prohibits me from flying over private property... I will cease doing so.
A warrantless search is not illegal, meaning law enforcement has not committed a criminal "or" civil crime. Nor, did the drone pilot. It simply means the evidence will be suppressed by virtue of a 4th Amendment violation.

The video is nothing but a "word salad" and the drone pilot broke no laws.
If an attorney, law enforcement or DA asked me to do the same..... I would as Part 107.
Too much fear mongering going on here.

 

[Bobstaff]

There's too much deep thinking going into this. Unless you're acting on behalf of "the state" you only need to be worried about civil privacy matters. Here's a good rule of thumb that applies to "states interest" and civil privacy:
If it a warrant was needed to peek over someone's fence, then it's still needed to look with a drone.
If it's a civil privacy violation to peek over someone's fence, then it's also a violation with a drone.
Reasonable expectation of privacy hasn't changed.
Just the ways to breach that privacy.

 

[adm_geomatics]

There's too much deep thinking going into this. Unless you're acting on behalf of "the state" you only need to be worried about civil privacy matters. Here's a good rule of thumb that applies to "states interest" and civil privacy:
If it a warrant was needed to peek over someone's fence, then it's still needed to look with a drone.
If it's a civil privacy violation to peek over someone's fence, then it's also a violation with a drone.
Reasonable expectation of privacy hasn't changed.
Just the ways to breach that privacy.

It would be great if it were just that simple. Unfortunately bureaucracy has taught us that it depends on who is flying the drone, who they are surveilling and what their story is for the legal team. Most drone outfits are going to be small and probably would not survive if things went sideways and they hadn't protected themselves up front. We can talk about what's morally right and wrong but our world doesn't work that way.