In June 2011, six cattle wandered onto the North Dakota property of Rodney Brossart. Brossart refused to return them to their owner until he had paid Brossart for feed consumed by the cows. North Dakota law permits such "distraint," but, noting that "there have been problems with [him] in the past," the Nelson County Sheriff's Office decided to arrest Brossart. During an armed standoff, the Sheriff took up the offer by the Department of Homeland Security to lend the Sheriff an unmanned Predator drone. When the drone confirmed that Brossart and his family had not left the ranch, and were unarmed, Sheriff's deputies arrested Brossart and four members of his family. The Brossarts moved to dismiss the charges, arguing, inter alia, that use of the drone constituted "outrageous governmental conduct," "unlawful surveillance," and an "illegal search and seizure." North Dakota District Judge Joel Medd denied the motion, writing that "there was no improper use of an unmanned aerial vehicle" and that the drone "appears to have had no bearing on these charges being contested here."
The Brossart case is the first in which a court has approved a domestic law enforcement agency's use of a drone to investigate or arrest a suspect. But it certainly won't be the last. In February of this year, members of Congress backed by the drone industry inserted language in the the FAA reauthorization bill requiring the agency to simplify and accelerate the process for allowing domestic agencies to operate drones. At the same time, the Department of Homeland Security has launched a program to "facilitate and accelerate the adoption" of drones by domestic agencies. The FAA has already authorized dozens of domestic agencies to operate drones, including the police departments of Houston, North Little Rock and Gadsden, Alabama. Other states and localities are lining up for FAA authorization and DHS grant funds. There has even been talk by some local police of adding weapons to domestic drones.
There is no question that drones will make it easier for domestic law enforcement agencies to investigate crimes and arrest suspects. This may make us safer, although the lack of sophisticated onboard collision avoidance systems and the prospect of local sheriffs's deputies piloting drones outfitted with rubber bullets and tear gas engenders some doubt on this point. And the use of domestic drones will certainly provide jobs and profits for drone manufacturers. But as even DHS has recognized, the use of domestic drones raises enormous privacy and Constitutional issues. DHS says "we will not be watching backyards," but as domestic drones proliferate, it will become harder and harder to control what all of the agencies approved to use them are doing with them. The Fourth Amendment guarantees Americans the right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." One wonders what its drafters would say about the use of drones to arrest a family in a dispute over trespassing cows.