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Saturday, August 30, 2014

How Many States Require Warrants for Government Drone Use?

In the process of reporting on the California Assembly's approval of a bill that would require law enforcement officers to get a warrant before using drones, The Guardian states:

A total of 13 states have passed some form of legislation restricting the use of drones by public agencies, of which nine have specifically sought to rein in police snooping by requiring officers to seek warrants before using the devices. 
The nine states with warrant requirements are: Florida, Idaho, Illinois, Iowa, Montana, Oregon, Tennessee, Utah and Wisconsin.
The claim that only nine states have warrant requirements is incorrect. In fact, 11 states have warrant requirements. The article fails to mention Indiana and Texas.

Indiana Code section 35-33-5-9 provides:

(a) Except as provided in subsection (b), a law enforcement officer must obtain a search warrant in order to use an unmanned aerial vehicle 
(b) A law enforcement officer or governmental entity may use an unmanned aerial vehicle without obtaining a search warrant if the law enforcement officer determines that the use of the unmanned aerial vehicle: 
(1) is required due to: 
(A) the existence of exigent circumstances necessitating a warrantless search; 
(B) the substantial likelihood of a terrorist attack; 
(C) the need to conduct a search and rescue or recovery operation; 
(D) the need to conduct efforts: 
(i) in response to; or 
(ii) to mitigate; 
the results of a natural disaster or any other disaster; or 
(E) the need to perform a geographical, an environmental, or any other survey for a purpose that is not a criminal justice purpose; or 
(2) will be conducted with the consent of any affected property owner.
To summarize, Indiana law requires officers to obtain a warrant before using drones unless certain circumstances exist, such as a likely terrorist attack, exigent circumstances, a natural disaster, or the consent of the person whose property is searched.

Section 423.003 of the Texas Government Code provides it is unlawful to capture an image of another person or another person's property using a drone if the image is captured with the "intent to conduct surveillance" on that person or property. Section 423.005 of the Texas Government Code states that any images captured in violation of section 423.003 will be inadmissible in court. But section 423.002 of the Texas Government Code lays out a number of exceptions, including subsection (a)(7) which permits the collection of images by a drone "pursuant to a valid search or arrest warrant."

It is not clear why the author of The Guardian article failed to mention Indiana or Texas. One explanation for the author's failure to mention Indiana is that the law did not go into effect until July 1, 2014, and the information the author was relying on may have been out of date. Also, Texas's warrant requirement is only clear after the reading of multiple sections of the laws regulating drone use, which could have thrown off the author.

Those explanations aside, the language of both statutes is clear, and Indiana and Texas should have been included in The Guardian's list of states that require government agencies to obtain warrants before using drones.

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