Academic journal article Journal of Criminal Law and Criminology

The Fourth Amendment in the Age of Persistent Aerial Surveillance

Academic journal article Journal of Criminal Law and Criminology

The Fourth Amendment in the Age of Persistent Aerial Surveillance

Article excerpt

TABLE OF CONTENTS  INTRODUCTION                                                        172 I. THE FACTS: PERSISTENT AERIAL SURVEILLANCE IN BALTIMORE           174 II. PERSISTENT AERIAL SURVEILLANCE IS AKIN TO GPS                   177     MONITORING AND CONSTITUTES A SEARCH          A. The Katz Doctrine Indicates that the Manner of the      177          Surveillance Does Not Necessarily Dictate Whether a          Search Occurred          B. Persistent Aerial Surveillance Is Not Like the Aerial   179          Surveillance that the Court Has Previously Considered          C. Persistent Aerial Surveillance is Like GPS Monitoring   184          D. The Mosaic Theory Supports this Classification of       187          Persistent Aerial Surveillance as GPS Monitoring          E. The Importance of Persistent Aerial Surveillance Does   193          Not Call for Warrantless Searches in Baltimore CONCLUSION                                                          195 

INTRODUCTION

Aerial surveillance by police has existed for as long as humans have been able to fly, and the Supreme Court has had many occasions to address the constitutionality of this type of investigation. (1) This Note looks to the persistent aerial surveillance being deployed in Baltimore and explores whether persistent aerial surveillance is constitutional under the Court's prevailing Fourth Amendment (2) jurisprudence. The Court has found that aerial surveillance is not a search. (3) Persistent aerial surveillance, however, is a search and therefore must be reasonable to be constitutionally permissible. This kind of surveillance differs in both amount and kind from preexisting practices. The emerging technology enables law enforcement to rewind and fast-forward video footage of a metropolitan area over the course of a day, giving them a look into the private lives and routines of ordinary citizens. (4) Thus, there are significant differences in its capabilities and the resulting infringements on privacy rights.

It is unlikely that the persistent aerial surveillance in Baltimore is reasonable because, generally speaking, the Baltimore Police would need to have a warrant and probable cause that a crime is being committed before any evidence of the crime occurred. (5) Indeed, one source indicates that the video analysts employed by the Baltimore Police do not always follow people or cars based on an inference that they are participating in a criminal act. (6) And they do not look at the footage based on an anonymous tip. (7) In short, without probable cause and a warrant, the police can search through the surveillance footage to spy on the citizens of Baltimore.

This Note addresses the constitutionality of persistent aerial surveillance in two major parts. The introduction presents the issue of whether this action constitutes a search and proposes that the persistence of aerial surveillance changes the calculus. Inevitably, lower courts will soon face this added element to the old topic of aerial surveillance. Part I establishes the factual scenario of persistent aerial surveillance in Baltimore. Part II contends that the constancy of persistent aerial surveillance makes this new technology more analogous to a GPS monitor than a security camera for Fourth Amendment purposes. The Note concludes that absent probable cause and a warrant, persistent aerial surveillance is unconstitutional because it violates the reasonable expectations of privacy of U.S. citizens, who do not expect the government to monitor them across cities for hours at a time.

I. THE FACTS: PERSISTENT AERIAL SURVEILLANCE IN BALTIMORE

During the Iraq War, if a roadside bomb exploded while a surveillance aircraft was in the air, "analysts could zoom in to the exact location of the explosion and rewind to the moment of detonation." (8) They could examine the footage to see if a vehicle had stopped there earlier to plant the explosive. (9) They could follow that car backwards in time to see where it came from and if it stopped at any other locations prior to the bombing location. …

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