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Grand Forks County deputy sheriff has 'serious concerns' with bill to require police to get warrant for UAS surveillance

A bill introduced in the North Dakota Legislature that would require police to get a warrant before using an unmanned aircraft for surveillance is facing opposition from a local law enforcement official.

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Al Frazier

A bill introduced in the North Dakota Legislature that would require police to get a warrant before using an unmanned aircraft for surveillance is facing opposition from a local law enforcement official.

The proposal, House Bill 1328, would prohibit law enforcement agencies from using an unmanned aircraft to surveil people, as well as business or personal property, without first obtaining a warrant in order to gather evidence of criminal activity.

Warrants to conduct surveillance with unmanned aerial systems could only be issued in the investigation of a felony, and not "misdemeanors, traffic infractions or other non-felony violations of the law," the bill states.

The bill's primary sponsor, state Rep. Rick Becker, R-Bismarck, introduced a similar bill last session that passed the House. He said his goal is to protect civil liberties.

A number of exceptions are written into the bill, including using UAS for research and training, patrolling national borders, immediate danger to life or bodily harm, or a weather-related catastrophe.

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"I think it's a very important and very useful technology," Becker said. "We're not trying to hinder it."

Al Frazier, Grand Forks County deputy sheriff and chief pilot for its UAS, said he has "serious concerns" about the bill.

"I won't say it's crippling to law enforcement that would like to utilize small UAS, but it would significantly reduce the usefulness of those aircraft," said Frazier, who is also a professor at UND. "To read Rep. Becker's bill, you would think that these would be highly effective surveillance tools that could be put up over locations for persistent surveillances and violate people's constitutional rights. And the reality is none of that is correct."

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He said rapid changes in the western part of the state are stretching law enforcement resources, making UAS all the more important.

"In a state that is starting to experience big-city problems ... with gang members, prostitution, illicit drug use, we need more law enforcement assets to get those problems under control," he said.

Uses for UAS

Frazier said local law enforcement has used small UAS primarily on areas where a crime has already occurred, looking for lost people and assessing erosion damage. One notable case of the technology's use in law enforcement occurred in 2011, when a U.S. Customs and Border Protection unmanned aircraft was used to assist the Nelson County Sheriff's Department in the arrest of a Lakota, N.D., farmer. The department used a military-style drone in June 2011 to ensure the Brossarts were not carrying any weapons before going to their farmstead and arresting Rodney Brossart.

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While Becker said there's not an existing problem with police using UAS for surveillance, he said the technology has more capabilities than officers on patrol.

"What we're doing is trying to make things clear on what should be done and the proper way to handle things," Becker said. "The new technology brings in a gray area."

But Frazier said there's existing case law that shows when a warrant is needed in an aerial search. He cited the U.S. Supreme Court case of Florida v. Riley, in which an officer saw a marijuana growing operation from a helicopter 400 feet above ground, an observation that led to a search warrant.

"We don't have cases that indicate that you can do warrantless searches at a lower altitude than that," he said. He suggested Becker fall back on that case, "and say if a search is going to occur at less than 400 feet of an area that has a reasonable expectation of privacy, then a warrant is necessary."

Becker said the bill make may the use of UAS more difficult for law enforcement "in the same sense that you have to go to a judge and get a search warrant before you go into someone's house or into their backyard."

Becker introduced a similar bill during the last legislative session. Despite facing opposition over concerns that it would harm Grand Forks' chances of becoming a federally designated UAS test site, the bill passed the House, but it ultimately didn't become law.

Grand Forks was named one of the Federal Aviation Administration's six test sites in late 2013, after the Legislature adjourned.

Becker's bill was introduced on Tuesday by a group of Republican lawmakers and referred to the House Judiciary Committee. It's also sponsored by the chairman of the Senate Judiciary Committee, Sen. David Hogue, R-Minot.

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