This is not great news, even if the law pretty much aligns with case law. Nonetheless, this is concerning.
Tennessee law enforcement agencies will continue to be able to use drones without a search warrant in various investigations following the approval of a bill earlier this year.
In 2021, the Tennessee General Assembly approved a new set of laws regarding law enforcement use of drones. The provisions would have ended on July 1, 2024. However, during the latest legislative session, lawmakers voted to extend them.
So, the first concern is that state legislators felt compelled to craft a new law creating a warrant exception. Most case law says there’s no expectation of privacy in areas that can be viewed by the public. Now, you can put a privacy fence around your property to ensure passersby can’t see what’s happening in your yard, but the prevailing argument is that any plane passing over your place would unveil the contents of your property despite your proactive fencing.
Now, it’s tough to compare the random flyover by high altitude planes to police surveillance. But courts have, and they’ve found that whether it’s a passenger plane, cop helicopter, or that one guy in your neighborhood with levitation superpowers, it’s all just plain view.
But Tennessee is different. Prior to 2021, warrants were required to fly drones over personal property. And for good reason! You should need a demonstrable and justifiable reason to fly a camera over someone’s private property, especially one that is as maneuverable as a drone. There’s no comparison to this and a low-flying plane. A plane can’t perform the tight circling needed to engage in uninterrupted surveillance. And a plane can’t fly low enough to get all up and personal with the curtilage, like a well-piloted drone can.
Because cops deserve all the deference and despite the fact that tons of warrant exceptions exist that officers could make use of to invade someone’s privacy by piloting a drone into their yard, Tennessee legislators still felt compelled to change the law.
And, of course, law enforcement officials showed up to defend the removal of a warrant requirement, using highly specific anecdotal evidence.
Several law enforcement agencies across Middle Tennessee have employed drones in various capacities over the past few years. In July 2023, the Sumner County Sheriff’s Office said a drone helped deputies save a man’s life during a tense welfare check.
While responding to the call, authorities said they spotted a razor blade and a blood trail leading into a 50-acre cornfield. The 5-foot-tall crops were so dense that deputies could not see the man. Minutes after launching a drone, they found him in the middle of the field.
[…]
Drones were deployed to help search for 22-year-old Riley Strain after he went missing in Nashville during a fraternity trip in March.
In Putnam County, the devices have been useful in helping deputies track suspects and during drug investigations. When a man crashed his car and ran into the woods in February, deputies launched one of their tracking drones to quickly take the man into custody.
It all sounds so logical! Of course a warrant requirement would get in the way in these particular situations. But that’s not what people are worried about when they demand warrant requirements for drone deployments. Every single one of the anecdotes offered would already fall outside of the state’s warrant requirements. The first one would fall under the community caretaking exception. The second would be exigent circumstances. And the third arguably wouldn’t need a warrant because the drone may have only surveilled publicly property. (Even if it didn’t, the “hot pursuit” exception would have applied.)
What’s of concern here is the other stuff. Bored officers lofting drones into the air for minutes or hours on end trolling for some sort of “plain view” evidence they can use to obtain search warrants or, in even worse scenarios, use to claim search warrants (for on the ground, in-person searches) weren’t necessary.
What lawmakers should have done is kept the warrant requirement to remain in place. There’s no reason to remove it entirely just because there will periodically be cases where warrants aren’t practicable. But in those cases, plenty of long-existing warrant requirements already apply. So, law enforcement agencies wouldn’t be losing anything under the pre-2021 law. But now, they stand to gain everything because the state has declared warrants are the exception, not the rule.
