Drones have become a useful tool for law enforcement. Las Vegas Metro recently acquired five drones to assist its officers. Drones allow officers a quick and cost-effective way to survey a crime scene from the air, without needing to call in a helicopter. They also come in handy in search and rescue and in investigations after accidents. The use of drones by Nevada law enforcement is subject to number of statutory rules that officers should understand.
When is a warrant needed to use a drone to gather evidence?
Drones allow law enforcement officers to rapidly search the scene of an incident and gather photographic evidence that could become an important part of an investigation and prosecution. Nevada law provides some guidelines on when a warrant is needed before a drone can be used to survey an area. Under NRS 493.112, a warrant is required to gather evidence or other information (such as an audio recording) in the curtilage of a residence, or in any other place where a person has a reasonable expectation of privacy.
Where required, a warrant must specify that the court has authorized the use of a drone to gather evidence. It also must specify the period for which drone use is authorized, which cannot be for more than ten days unless extended by the court upon a showing of probable cause. NRS 493.112(2). Any evidence gathered in violation of these requirements will not be admitted in a judicial or administrative proceeding and cannot be used to establish reasonable suspicion or probable cause.
Exceptions to the warrant requirement
The law provides several exceptions to when a drone can be used to gather evidence without first obtaining a warrant. These are:
- If there is probable cause to believe that a person has committed, is about to commit, or is committing a crime, and exigent circumstances make it unreasonable to obtain a warrant before using the drone.
- If a person consents in writing to law enforcement gathering information about him or her.
- If the drone is used in search and rescue operations for persons and property in distress.
- In circumstances which law enforcement believes represent an imminent threat to life and safety of an individual or the public, such as terrorist threats. In these situations the agency must submit a sworn affidavit describing the circumstances within two business days after beginning operation of the drone.
- Upon a declaration of emergency by the governor, provided that the drone is flown only within the geographic territory specified in the declaration and is used only to protect property or the public, or to assess damage.
Constitutional questions remain open
Officers familiar with the Fourth Amendment issues associated with using technology to gather evidence will no doubt wonder if drone surveillance could be an unconstitutional search. In Kyllo v. United States, 533 U.S. 27 (2001), the U.S. Supreme Court held that officers needed a warrant to use infrared cameras to detect an illegal marijuana greenhouse. One can expect law enforcement’s use of drones to come under Fourth Amendment scrutiny at some point, though the Supreme Court hasn’t had a chance to weigh in.
The law firm of Greenman Goldberg Raby Martinez proudly serves members of the Nevada first responder community. We are keeping an eye on the important legal issues facing our law enforcement professionals. If you have questions about how Nevada’s drone laws affect you, please give us a call today at 702-388-4476. We can also be reached through our contacts page.