What happened next has been the subject of an eight-year and counting court battle over aerial surveillance and federal and state safeguards against unreasonable searches. And though the Davis case involved helicopters, the issue has become increasingly pointed as a growing number of police agencies, including the Santa Fe Police Department, are eyeing drones as a potent and cost-effective crime-fighting tool.
The state Court of Appeals specifically alluded to drones when it ruled last year that, under the New Mexico Constitution, police needed a warrant to conduct aerial surveillance on the Davis home. The state Attorney General's Office has appealed the case.
Now state lawmakers are stepping into the fray.
State Sen. Gerald Ortiz y Pino, D-Albuquerque, has introduced a bipartisan bill in the current legislative session requiring any state law enforcement agency that plans to use a drone for an investigation to obtain a warrant specifying what images the drone can collect. Under the bill, a drone could be used without a warrant in an emergency situation such as in a search-and-rescue mission.
On Tuesday, lawmakers in the Senate's Public Affairs committee voted 6-2 to advance the bill, but lawmakers said it needs amendments. The bill is co-sponsored by Sen. Paul Pacheco, a Republican from Albuquerque.
Ortiz y Pino said earlier this month that he didn't think his bill had a chance of becoming law this year, but that at least it would start "the dialogue on this issue." He said he introduced the legislation after he learned that the state's Court of Appeals ruled that the search of Davis' home was unconstitutional in January 2014.
Sen. Ron Griggs, R-Alamogordo, who voted in favor of the bill, said that he liked the bill's goal, but he thought it needed more work to get the right approach to protect citizens and at the same time not hurt law enforcement agencies that may use drones.
The legislative action comes as law enforcement agencies across the country are moving to add drones to their forces, thinking that the devices can help them solve crimes and help in vehicle accidents and search-and-rescue missions. But legal experts say federal law hasn't caught up with technology, and civil liberties advocates argue that drones can create an Orwellian-like community and lead to pervasive searches violating innocent people's privacy.
"As with any law enforcement surveillance technology, our primary concerns are with mission creep, how data is used and stored, and accountability," said Micah McCoy, a spokesman for the American Civil Liberties Union of New Mexico. "If local law enforcement agencies want to use drone technology, we need clear rules to prevent spying on innocent civilians and limits on what data they retain."
Lt. Andrea Dobyns, a spokeswoman for Santa Fe police, said even though the idea hasn't been brought up formally, the local agency is "weighing the benefits [against] the disadvantages" of obtaining a drone. She added that a drone could help the force in documenting crime scenes and crash investigations.
The Albuquerque Police Department had discussed getting a drone, but backed off the idea because "it doesn't seem applicable," said Officer Simon Drobik, a spokesman for the agency. He said the technology is too new and federal regulations aren't clear enough on when departments would be allowed to use them.
He said there are some benefits of having a drone, especially for a cash-strapped agency that can't afford a helicopter. Drobik said Albuquerque police have a helicopter they can use to pursue people who are fleeing in a vehicle. But a drone is a cheaper alternative for smaller agencies, he said.
The Doña Ana County Sheriff's Office is holding off on discussing getting a drone because "we're so unfamiliar with how the rules and regulations apply to drones," said Kelly Jameson, a spokeswoman for the sheriff's office.
"At this point, we don't know how we would use that type of technology," Jameson said. "We would probably look at another [New Mexico] agency to take initiative to do it and learn from their mistakes."
The Federal Aviation Administration has already issued licenses to some businesses and local police departments to operate drones for commercial and law enforcement purposes. Commercial uses include aerial photography and video production. However, the FAA hasn't issued specific policies on when and how police departments could use drones for investigations.
On Sunday, the federal agency issued proposed drone rules to allow more private businesses to apply for a certificate to use a drone for commercial purposes. For example, the FAA will allow real estate agents, film producers, farmers and others to apply for a drone license as long as they follow regulations similar to those that apply to hobbyists.
Recreational drones must weigh less than 55 pounds and be flown below 500 feet, at least five miles from an airport and away from populated areas. The FAA has said it will provide more guidelines in September.
Lawmakers in states in which local law enforcement agencies have expressed interest in getting a drone have introduced proposals to regulate the use of aerial surveillance for criminal investigations. So far, 10 states have passed laws regulating drone use, and seven of them say agencies need to get a search warrant before using a drone to gather information for a criminal investigation.
The U.S. Supreme Court has ruled that police aerial surveillance does not violate privacy protections if a person's property is visible to anyone flying over it in legal airspace. But the state Court of Appeals ruled last year in the Davis case that New Mexico's protections go further, distinguishing between observations that could be made by ordinary members of the public flying over a property and surveillance conducted expressly for law enforcement purposes.
"We conclude that police flying over a residence in order to discover evidence of crime, without a warrant, 'does not comport with the distinctive New Mexico protection against unreasonable searches and seizures,' " the court wrote in the opinion.
A Reuters/Ipsos online poll released recently said 68 percent of the 2,000 respondents surveyed between Jan. 21 through Jan. 27 said they support use of drones to solve crimes. But 73 percent of the people said they want strict regulations on use because of fear they could be abused by police or private citizens.
©2015 The Santa Fe New Mexican (Santa Fe, N.M.)
