Recovery

Taking to the Air: Drones and Law Enforcement

Fiction has become a reality, and police agencies across the country increasingly are turning to these miniature aerial platforms to help in their work.

by Jeff Brown; Dover Post, Del. / December 14, 2017

(TNS) - Only a decade ago, the idea of using flying cameras to solve crimes seemed like something out of a made-for-TV science fiction film.

Today, however, fiction has become a reality, and police agencies across the country increasingly are turning to these miniature aerial platforms to help in their work.

Defined in legal terms as unmanned aerial systems, but more commonly known as drones, they're also helping survey storm damage, checking hard-to-reach areas on bridges and towers, showing off real estate or scouting out possible construction sites.

But it's their use by police and other law enforcement agencies where drones have received the most public attention.

Tight FAA restrictions

Lt. Christopher Hermance, who commands the Special Tactics Unit at the Dover Police Department, is the agency's chief UAS pilot. He is backed up by two other pilots. All have undergone initial flying instruction as well as tactical training in drone use, and are certified by the Federal Aviation Administration, which oversees drone use in the United States.

Law enforcement agencies in Wilmington and Ocean View, as well as the Delaware State Police also are using UAS technology as are DelDOT, the Delaware Emergency Management Agency and the state fire service.

Using DEMA funding, Dover police bought two unmanned aircraft in 2016, paying about $12,500 for the aircraft, batteries, controllers, cameras and other equipment.

Both have different capabilities, and each is used as the situation warrants.

During 2017 the department has used the UAS to monitor crowds during public events such as the Firefly Music Festival and to survey homeless camps. Hermance and his team also have used the equipment for public exhibitions at Dover schools.

In April, a Dover police UAS flew over a rally supporting Delaware's Muslim community, held outside Legislative Hall.

"The objective is not to be noticed," Hermance said. "But it gives us an idea of what's going on on a large scale."

They've also been used to provide aerial photography of crash scenes, such as a crash.

"The officers doing the reconstruction were able to do their math calculations using the physical images of the road we gave them," Hermance said.

Drone operators must operate under tight restrictions imposed by the FAA, Hermance said.

Pilots fly the aircraft using a remote control tied to an iPad or similar device. The operator is required to keep the drone in sight with the naked eye at all times. Depending on the aircraft used, Hermance works in tandem with another officer who controls the camera and makes the video record. Each uses a global positioning system that keeps the drone in contact with more than a dozen satellites at one time.

In general, drones only may fly during daylight hours, and the vehicle can go no higher than 400 feet. Pilots must observe additional restrictions if they're operating near an airport or a military installation such as Dover Air Force Base.

Use of the drone for law enforcement on a case-by-case basis and the pilot is the final authority on when and how each flight is conducted, meaning Hermance can overrule the chief of police on an operation if he deems it necessary.

"We operate under strict parameters and safety is always first," he said. "When you're flying you have to be prepared to fly safely."

Keeping officers safe

In Wilmington, Master Sgt. Adam Ringle serves as director of the city's police department's UAS flight operations. He has two assistant pilots to fly five operational unmanned vehicles.

Unlike Dover's smaller vehicles one of Wilmington's drones can carry objects if needed, including rope used in water rescues.

"We can tie off the rope and fly it out to someone in the water," Ringle said. "That's really awesome because we can patrol the waterways and get help to people quickly."

Wilmington's drone program came about both as a need to get more information during criminal investigations and as a way to save money.

"We were frequently asked to go up in a helicopter to take photos for juries," he said. "Aerial views are unlike any other, but it costs $3,000 an hour to use a helicopter."

It took about two years for the idea to become a reality, but the drones since have proven their worth, Ringle said.

"You can do things from the air that you can't do from the ground," he said. As an example, Ringle can use a drone to look for a suspect in hiding instead of risking an officer to conduct a foot surveillance.

"If you can accomplish a task without putting an officer in harm's way, that's a huge benefit to the department and the public."

Same rules for search and seizure

Although the FAA regulates drone operations, it does not oversee how the UAS is used to gather information on people or property; that is left up to individual states or municipalities. Delaware set forth those rules in 2015, making it a crime to fly over large sporting events or critical areas such as government buildings, utilities, ports, rail yards or drinking water facilities unless a property owner grants written permission.

However, it exempts law enforcement agencies, leaving it up to each jurisdiction to formulate its own rules.

Dover has developed its drone use policy after reviewing regulations created by other municipalities and the International Association of Police Chiefs, said department spokesman Master Cpl. Mark Hoffman.

Wilmington also has developed its own rules, Ringle said.

"We have a very strict written policy that was done in conjunction with our legal counsel for the entire city," he said.

Using drones to gather evidence falls under the same strictures as any other investigative operation, Hermance said: judicial consent is required.

"If an officer in a police car or on foot sees a crime in progress, he can go directly in," he said. "But we can't go around the city and look in peoples' windows."

If the police have probable cause to think a crime has been committed, they must convince a magistrate to allow a drone to gather the evidence. It's no different from the legal process needed to get permission to physically search a building or car, he said.

"If drones are up, they're being used for a specific purpose," Hoffman said. "We're not cruising the streets or cruising downtown looking for violations of the law."

"But if we see [a crime], we will take appropriate action," Hermance added.

"It also makes it safer for the officer and the public," Hoffman said.

Wilmington officers also require probable cause before employing a UAS, Ringle said.

"Everything we've learned in our training applies, even if you're doing it from the air," he said.

While drones can -- and are -- used to survey and protect special events, they can't be used to target specific people, Ringle said.

"For example, if you know a guy in a red jacket will be somewhere selling weed and you go fly just for that explicit purpose, looking for a known person at a known time, that will get thrown out [of court]. It's illegal search and seizure," he said.

The ACLU's privacy concerns

How police write their drone use regulations and how those regulations are applied are matters of concern to privacy rights advocates, including Delaware's ACLU.

"We definitely have a position on this," state ACLU Executive Director Kathleen MacRae said.

While the group has mounted no specific challenges to drone use, they have identified some concerns regarding individual privacy, she said. Primarily, MacRae wants a department's drone use policy set down in writing with a public review.

"From a general point of view, the police should not be allowed to used a drone in a way that would be more invasive than using a police helicopter," she said.

"We certainly would want to make sure police departments have specific, clear policies in writing that are open for public review that have been developed by a public body, a city council or advisory council, should the mayor set one up."

MacRae cited a US Supreme Court case, heard Nov. 28, regarding search and seizure of cell phone records. In that case, the ACLU has argued a police department's search of a suspect's cell phone information violated the Fourth Amendment against unreasonable search and seizure.

Using a cell phone -- or a drone -- to target a specific individual should be considered unconstitutional, she said.

"If you're using a cell phone to get specific evidence to a crime, that's OK," she said. "But if you look at all data in a cell phone and see that person and all of his contacts, that's a different story," MacRae said.

While the ACLU would like police departments to subject their drone policies to public scrutiny, MacRae doesn't think that will happen soon.

"I'm not surprised a public body hasn't identified the policy," she said. "The police would resist."

But the ACLU is not against police using UAS, as long as it's done properly, MacRae said.

"We understand drones have very useful purposes and they can be a tool for law enforcement as long as there are rules and safeguards for determining their usage," she said.

Dover policy a matter of record

Ringle said his department is not releasing its guidelines on the use of drones.

"Since our policy is 99.9 percent FAA rules and procedures relating to the appropriate utilization of UAS aircraft, we will not be providing a copy of the policy at this time," he said.

However, Dover's police department has an eight-page written policy on the use of drones, approved in October by Chief of Police Marvin Mailey.

In its policy statement, the document says, "The Dover Police Department recognizes concerns relating to privacy and First Amendment rights associated with the use of UAS aircraft.

"It is the DPD's policy when using UAS to not interfere with or violate such rights," it adds.

Also, the policy addresses a number of issues, including hazards, launch and landing zones, what to do if communications between the drone and the controller are lost, use during emergencies and training requirements.

Under the policy, drones may be used to take photographs or record video of crime scenes, monitor civilian disturbances or protests, and search rooftops or other structures for discarded weapons or contraband during a police operation.

The chief of police also may authorize drone use under circumstances where he or she feels it necessary.

While Dover police department has made its drone policy a matter of public record, Mayor Robin Christiansen feels that policy should not be subject to review by Dover's city council or any other civilian board.

Under Dover's charter, the chief of police, and hence the department, answers to the city's chief executive.

"I have great concerns about relegating police tactics to run them through a committee or anything like that," Christiansen said. "The mayor and the chief of police are in charge of the police department, and we make sure the place is run judiciously.

"The last thing I as mayor or as a citizen would do is to undertake any police tactic that would violate anyone's civil rights," he said.

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