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There's some government agencies that are using drones to gather footage of places not usually viewable by naked eye by people at ground level.

These agencies' reasoning is that if a person lawfully flying over airspace easement of private property can view something with naked eyes, a warrant is not necessary for further legal action.

A LEO lawfully flying over private property has a limited amount of time to do their "naked eye" search over the property and has to rely on their human memory.

However, the drone footage is 1) not naked eye. and 2) can be recorded and reviewed later by either people or software.

Isn't hovering over private property for Law Enforcement purposes unreasonable?

There's some contested cases (Like a recent Michigan ruling[ref]) regarding drones. Obviously it is still a gray area. Also, it is narrowed down to civil action.

I'm more interested in case law, but anything from is fine also.

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  • Why do you think it’s any different from a stake out at ground level?
    – Dale M
    May 30, 2022 at 22:08
  • @DaleM 1) see the linked case from MI. 2) Drones can go up to 400 feet. That's a huge vantage point. A 7-foot tall fence can block LOS from ground level, drones laugh at it. 3) Drones can have 4k cameras with optical zoom, nevermind other imaging aids. May 31, 2022 at 2:57

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In some states (Alaska, Florida, Idaho, Illinois, Indiana, Iowa, Maine, Montana, North Carolina, Oregon, Tennessee, Texas, Utah, Vermont, Virginia and Wisconsin) a warrant is required for drone surveillance, for example Florida's law. Long Lake Township v. Maxon moves Michigan in that direction. The crucial reasoning of this decision rests on the "reasonable expectation of privacy", and follows the reasoning in Kyllo v United States, 533 US 27 that there is a search when

“the individual manifested a subjective expectation of privacy in the object of the challenged search,” and “society [is] willing to recognize that expectation as reasonable.”

(citing California v. Ciraollo, 476 US 207). The opinion observes that in some cases there is a "reasonable expectation of privacy", and in some cases there is not – relevant parameters include whether the location is a home, whether or not the observation was from an airplane or helicopter, the altitude of the observation etc, and in ordinary aircraft suveillance cases, "defendants could not have reasonably expected the activities and items on their property to be protected from public or official observation made by a human being from the publicly navigable airspace". In this case, though, photographs "taken from the ground seem to establish a reasonable expectation of privacy against at least casual observation from a non-aerial vantage point". The final conclusion is that

much like the infrared imaging device discussed in Kyllo; low-altitude, unmanned, specifically-targeted drone surveillance of a private individual’s property is qualitatively different from the kinds of human-operated aircraft overflights permitted by Ciraolo and Riley. We conclude that drone surveillance of this nature intrudes into persons’ reasonable expectations of privacy, so such surveillance implicates the Fourth Amendment and is illegal without a warrant or a traditional exception to the warrant requirement

(it should be noted that the drone operated below the FAA regulated minimum altitude, which crucially bears on whether there is a reasonable expectation of privacy – "Persons may, absent extraordinary circumstances, reasonably expect the law to be followed, even if they know the law is readily capable of being violated"). It is not that violating an FAA safety regulation violates the 4th Amendment, it is that such a violation bears on what constitutes a reasonable expectation of privacy.

There is a dissenting opinion in Long Lake, which does a reasonable job at picking at the majority opinion. As far as Michigan is concerned, the majority opinion is what counts, but we cannot conclude that the next time this issue comes up, another state will follow suit. On the third hand, many states have encoded this "reasonable expectation of privacy" when it comes to drone surveillance.

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