Aerial Surveillance, Intrusiveness, and the Fourth Amendment

Eugene Volokh has this post at the Volokh Conspiracy highlighting the recent case of State v. Davis in the New Mexico Supreme Court. In that case, police officers observed property by flying over it at a height of fifty feet in a helicopter. The Court held that the intrusiveness of this surveillance, which apparently included broken beams and solar panels, rendered the flyover a Fourth Amendment search.

The Court also criticized the New Mexico Court of Appeals ruling on the case, which noted that intrusiveness should not be the metric for determining whether a search has occurred because officers may use drones to conduct equally low flyovers without the noise, dust, and damage of a helicopter flyover. The New Mexico Supreme Court pointed out that the Court of Appeals' discussion was unnecessary speculation.

This approach is consistent with the United States Supreme Court's approach in United States v. Jones, in which the majority held that officers had conducted a Fourth Amendment search when they attached a GPS device to a car and tracked it for a prolonged period of time. Rather than hold that the prolonged gathering of information rose to the level of a search, the majority concluded that the act of attaching the GPS device was a physical trespass and therefore violated the Fourth Amendment.

While the Davis court only makes a passing reference to Jones, the Court is correct to conclude its analysis with its discussion of intrusion, as such an intrusion is sufficient to establish a Fourth Amendment violation. Going beyond the intrusiveness discussion is therefore unnecessary to resolve the question presented.

But one day, the question will be presented as to whether a low-flying police drone constitutes a Fourth Amendment search. When that question arises, the drones involved likely will not kick up the dust, incite the panic, or cause the damage that is the central focus of the Davis Court's decision. When that day comes, courts may find themselves constrained by the precedents cited in Davis which uphold the constitutionality of aerial observations. This will be especially true if state and federal laws are drafted in a manner that gives ordinary drone users a wide range of freedom in flying their drones, as common drone use will form the foundation of people's reasonable expectations of privacy.

Courts can be rescued from these difficult decisions, however, if states draft rules regulating the use of evidence obtained by police drones. State legislation can be drafted in a manner that balances law enforcement interests with privacy interests -- and this balance can be reached through debate and public input, rather than through speculation and generalizations that may arise from a single case before a deliberating court.

For those readers interested in hearing more on what I have to say on state drone laws, check out my article on the subject which was just published by the Harvard Journal on Legislation. You can find that updated version on SSRN as well.

Eckert v. City of Deming: A Notably Outrageous 1983 Suit

A while back, I mentioned UCLA's "Hummel Memo," an assignment that almost every student needs to complete in their legal writing courses.  This memo gives students an opportunity to draft an objective memo on negligent infliction of emotional distress using a controlled selection of cases.  Employers and organizations in the Los Angeles area who hire students for internships or clerkships following the students' first year of law school are all familiar with the Hummel Memo as the most commonly used writing sample year-to-year.

The other assignment that all UCLA students know about is the "Chambers Memo," which introduces students to how to write a brief.  The case is a motion for summary judgment in a 1983 motion involving excessive force by a police officer.  Again, this is a very common writing sample -- especially when it comes to applying to law firms at the beginning of students' second years.

I mention this mainly to give a context of what I know about 1983 motions (although I am also aware of its use in Fourth Amendment situations and its sometimes quirky results in First Amendment cases).  I also mention this because my blog monitoring abilities have shown me that people have found this blog in web searches based on my mention of the assignment names, and might look at this post for advice (hint: Hammer v. Gross, while nice (for the plaintiff), is a plurality opinion.  Nobody, not even writing advisors, seemed aware of this) (other hint: this case, while involving some pretty different facts, may be worth looking into for the defense).

What prompted me to write this post, however, is not my recollection of my old assignment, but a recent 1983 case that's getting some play in the media right now.  The plaintiff filed a 1983 complaint in New Mexico arising from multiple cavity searches that police performed on the plaintiff after they stopped him for a traffic infraction and noticed, when he stepped out of the vehicle, that he seemed to be clenching his buttocks.

The best summary I have read of the case Kevin Underhill's account at Lowering The Bar.  This is one of the more outrageous and unpleasant fact patterns that I have seen in a 1983 case, and I think that it is especially notable (whoever's facts you accept) that the police were able to obtain a warrant to perform a cavity search based on their observation that the plaintiff's buttocks appeared to be clenched.

I won't go into detail about the facts here -- they are pretty graphic and unpleasant, and Underhill lays them out effectively.  One final reaction, however: while I felt that the facts were outrageous to begin with, the medical center's billing the plaintiff for the police-ordered cavity searches really took this case to the next level.  I think that the odds of a settlement are high here.