Can Police Use Drones for Surveillance in Colorado Investigations?

Key Takeaways

• Police can use drones in Colorado. Colorado’s criminal and government statutes do not contain a drone-specific warrant requirement for police.
• Whether a particular drone flight required a warrant is decided under the Fourth Amendment, based on the facts of the flight.
• If police use facial recognition on drone video to track or identify someone in real time, Colorado law limits that use and requires the agency to tell a criminal defendant about it before trial.
• Drone footage and related reports held as evidence in your case are part of what the prosecution must share with the defense in discovery.

What Colorado Law Provides

• No drone warrant statute. Titles 16, 18 and 24 of the Colorado Revised Statutes (criminal procedure, the criminal code, and the laws governing state and local government) contain no provision requiring police to get a warrant before flying a drone, requiring departments to adopt drone policies, or banning police drone flights over schools or private property.
• Facial recognition on drone video. A “facial recognition service” includes technology that analyzes faces “in still or video images” (C.R.S. 24-18-301(5)(a)). Under C.R.S. 24-18-307(1), a law enforcement agency may not use one for ongoing surveillance, real-time or near real-time identification, or persistent tracking unless one of four conditions is met: it has a warrant; the use is necessary to develop leads in an investigation; it has established probable cause; or it has a court order to locate or identify a missing person or identify a deceased person. These are alternatives, so a warrant is not always required.
• Other limits on facial recognition. Police may not use facial recognition results as the sole basis for probable cause (24-18-307(4)), may not apply it to a person based on religious, political or social views, participation in a lawful event, race, or other protected characteristics (24-18-307(2)), and may not use it to create a record of someone exercising First Amendment rights (24-18-307(3)).
• Notice to the defendant. “An agency shall disclose its use of a facial recognition service on a criminal defendant to that defendant in a timely manner prior to trial” (C.R.S. 24-18-308(1)).
• Public accountability reports. Before using facial recognition, an agency must file a notice of intent and produce an accountability report covering, among other things, data retention, data security and training (C.R.S. 24-18-302(1)-(2)). The agency must allow public comment, hold at least three public meetings, and post the final report on its website at least ninety days before putting the service into use (24-18-302(3)-(4)).
• Discovery in a criminal case. Colorado’s criminal discovery rule, Crim. P. 16, requires the prosecution to make available police reports (Part I(a)(1)(I)) and “any books, papers, documents, photographs or tangible objects held as evidence in connection with the case” (Part I(a)(1)(IV)), plus anything that tends to negate guilt or reduce punishment (Part I(a)(2)). That duty reaches material held by others who took part in the investigation (Part I(a)(3)).

What Federal Law Provides

• The Fourth Amendment. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (U.S. Const. amend. IV)
• FAA drone rules. Part 107 of the Federal Aviation Administration’s rules applies to “civil small unmanned aircraft systems” (14 C.F.R. 107.1(a)). Its operating limits cover speed, altitude, visibility and distance from clouds (14 C.F.R. 107.51). These are flight rules. They do not address what police may record.

Overview of Drone Technology in Law Enforcement

In recent years, many law enforcement agencies have integrated drone technology into their investigative operations, enhancing their capabilities in various scenarios. Drones offer unique advantages, including aerial surveillance, real-time data collection, and access to hard-to-reach areas, which can significantly improve situational awareness during incidents or investigations. The advanced drone capabilities enable law enforcement to monitor large crowds, conduct search and rescue missions, and gather evidence in a more efficient manner. However, the deployment of drones raises important questions regarding surveillance ethics. The potential for invasive monitoring and data collection can infringe upon citizens’ privacy rights, necessitating a careful balance between effective policing and ethical considerations. As agencies adopt drone technology, ongoing discussions about the ethical implications of surveillance practices remain vital to ensure accountability and public trust in law enforcement operations.

Legal Framework Governing Drone Surveillance in Colorado

Colorado’s criminal and government statutes say little about police drones. The legal limits on drone surveillance come mainly from the Fourth Amendment, from federal aviation rules, and from Colorado’s facial recognition law when that technology is applied to drone images.

State Drone Laws

Colorado’s criminal code, its criminal procedure statutes, and the laws governing state and local agencies do not require police departments to adopt drone policies, do not require a warrant for a drone flight, and do not ban police drone flights over schools or private property.

Among those statutes, the one that deals most directly with government drones is C.R.S. 24-33.5-1228(2.5). It directs a state center of excellence, “upon receiving sufficient money in the form of gifts, grants, and donations,” to study and run a pilot program on using drones for public-safety work, including accident reconstruction and crime scene documentation. The study must “include consideration of privacy concerns.” It does not set rules for how local police fly drones.

Colorado’s criminal code does address drones in one other way. Using a drone as an obstacle to knowingly obstruct a peace officer, firefighter, or emergency responder can be charged as obstructing a peace officer, because the statute defines “obstacle” to include an unmanned aircraft system (C.R.S. 18-8-104(1)(a), (5)(b)). It is a class 2 misdemeanor (18-8-104(4)), punishable by up to 120 days in jail, a fine of up to $750, or both (C.R.S. 18-1.3-501(1)(a.5)). The offense does not apply to a drone operator who gets permission from the agency coordinating an emergency response, keeps communicating with it, and follows its instructions immediately (18-8-104(2.5)).

Fourth Amendment Considerations

How does the Fourth Amendment intersect with the use of drones in Colorado law enforcement? The Fourth Amendment protects against “unreasonable searches and seizures” and provides that warrants may issue only “upon probable cause.” Law enforcement’s use of drones must balance public safety with individuals’ privacy rights and constitutional protections. Key factors include:

• Expectation of Privacy: Are individuals in a public or private space?
• Duration of Surveillance: Is the drone observing for a prolonged period?
• Type of Surveillance: Does the drone capture images or sound beyond ordinary observation?
• Authorization: Is a warrant necessary based on the specifics of the investigation?

Courts decide these questions case by case, based on the facts of the flight. Colorado’s criminal and government statutes do not answer them for drones.

Types of Surveillance Conducted by Police Drones

As law enforcement agencies increasingly integrate technology into their operations, police drones have emerged as a versatile tool for various types of surveillance. One primary application is aerial surveillance, which allows officers to monitor large areas from above, enhancing visibility during operations such as crowd control at public events or tracking suspects in open environments. Drones equipped with high-resolution cameras can capture detailed images, aiding in crime detection by providing real-time intelligence that may not be accessible through traditional methods.

Additionally, drones can be employed in search and rescue missions, where they quickly cover vast terrains to locate missing persons. They can also assist in monitoring traffic patterns and accidents, contributing valuable data to enhance public safety. Overall, the use of drones for surveillance represents a significant advancement in law enforcement capabilities, offering both efficiency and effectiveness in various investigative scenarios.

Operational Guidelines for Law Enforcement Use of Drones

Apart from the facial recognition law, Colorado’s criminal and government statutes do not set operating rules for police drones. Most day-to-day rules come from each agency’s own policies, so the practices below are choices an agency may or may not have adopted. Establishing clear limits on drone usage is important to balance public safety with individual rights.

Legal Framework Overview

Common features of police drone policies, and what the law actually requires for each, include:

• Purpose Limitation: Some agencies limit drone use to listed law enforcement purposes. Colorado’s criminal and government statutes do not require this for drones.
• Warrants: Colorado’s criminal and government statutes do not require a warrant for a drone flight. A warrant may still be required under the Fourth Amendment, depending on where and how the drone was used.
• Data Retention Policies: Colorado’s criminal and government statutes do not set how long police keep drone video. If an agency runs facial recognition on it, the agency’s accountability report must include its data retention policies (24-18-302(2)(d)(IV)).
• Public Disclosure: Colorado requires public notice, public meetings and a posted accountability report for facial recognition services (24-18-302(3)-(4)), but not for drones as such.

These principles aim to balance the advancement of technology with the protection of individual rights, ensuring responsible drone utilization.

Privacy Considerations and Limits

While advancements in drone technology offer significant benefits to law enforcement, privacy considerations remain a vital aspect of their operational guidelines. The use of drones for surveillance raises crucial questions regarding data collection and the potential for invasive monitoring of individuals. Law enforcement agencies should establish clear protocols to ensure that drone operations respect citizens’ privacy rights. These guidelines should include limitations on the types of surveillance conducted, particularly in private spaces, and transparency in data collection practices. Furthermore, citizen oversight helps foster public trust. Engaging communities in discussions about drone usage can help balance the need for effective policing with the imperative to protect individual privacy rights, thereby ensuring responsible deployment of drone technology.

Privacy Concerns and Civil Liberties Implications

As law enforcement agencies increasingly integrate drones into their investigative processes, significant privacy concerns and implications for civil liberties emerge. The use of aerial surveillance necessitates a careful examination of surveillance ethics, particularly regarding:

• Infringement on Personal Space: Drones can capture images and data without individuals’ knowledge, raising questions about consent.
• Data Retention Policies: Concerns arise over how long surveillance data is stored and who has access to it.
• Potential for Profiling: Drones may be used to surveil specific communities, leading to discriminatory practices and profiling.
• Lack of Oversight: Insufficient regulations can result in misuse or abuse of drone surveillance capabilities.

These factors illustrate the delicate balance between public safety and the protection of civil liberties, emphasizing the need for robust legal frameworks to safeguard individual rights in an era of advanced surveillance technologies.

Public Opinion on Police Drone Usage

How do citizens perceive the increasing use of drones by police in their communities? People hold different views. Some residents worry about privacy violations and surveillance overreach, while others see benefits for public safety. Common points of disagreement include:

• Privacy Violations: Fear that drones may infringe on personal privacy.
• Accountability: Concerns about a lack of oversight and accountability for drone usage.
• Effectiveness: Questions regarding the actual effectiveness of drones in crime prevention and solving cases.
• Community Trust: The potential erosion of trust between law enforcement and community members due to perceived invasive practices.

These factors contribute to a complex dialogue about the role of drones in policing, as citizens weigh the benefits against the risks to their civil liberties.

Future of Drone Technology in Law Enforcement

While the integration of drone technology into law enforcement practices is still evolving, its future promises significant advancements that could reshape policing strategies. Emerging technologies, such as artificial intelligence and enhanced imaging capabilities, are expected to improve surveillance efficiency and operational effectiveness. Drones equipped with real-time data analysis could provide law enforcement agencies with actionable insights during critical incidents, facilitating quicker decision-making processes.

However, these future advancements raise significant ethical implications. The potential for increased surveillance capabilities may lead to concerns regarding privacy and civil liberties. As law enforcement agencies explore drone applications, they must navigate the balance between public safety and individual rights. Clear guidelines and regulations will be crucial to address these ethical challenges, ensuring that the deployment of drones supports community trust and accountability. The trajectory of drone technology in law enforcement will ultimately depend on how these advancements are responsibly implemented and governed.

Recommendations for Ethical Drone Use in Investigations

As law enforcement agencies increasingly incorporate drones into their investigative processes, establishing ethical guidelines becomes imperative to ensure responsible usage. Key recommendations for ethical drone use in investigations include:

• Transparency: Agencies should publicly disclose their drone policies, ensuring community awareness and understanding of surveillance practices.
• Community Engagement: Involving citizens in discussions about drone usage fosters trust and addresses concerns regarding privacy and civil liberties.
• Data Minimization: Drones should only capture necessary data relevant to specific investigations, reducing potential invasions of privacy.
• Oversight Mechanisms: Implementing independent review boards can help monitor drone operations and ensure compliance with ethical standards.

These guidelines aim to balance effective law enforcement with the protection of individual rights, promoting a collaborative relationship between police and the communities they serve. Adhering to these principles will help mitigate potential abuses and enhance public confidence in drone technology.

Frequently Asked Questions

Can Police Drones Be Used in Emergency Situations Without a Warrant?

Colorado’s criminal and government statutes do not address warrantless police drone flights in emergencies. Whether police needed a warrant during an emergency is a Fourth Amendment question, decided on the facts of the flight. Colorado’s facial recognition law has its own list of permitted conditions and contains no general emergency exception, although it does allow a court order to locate a missing person or identify a deceased person (24-18-307(1)(d)).

How Are Drone Surveillance Data Stored and Protected?

Colorado’s criminal and government statutes do not set how police store or protect drone video in general, so each agency’s own policies control. If an agency runs facial recognition on drone images, its accountability report must describe how that data “will be securely stored and accessed” and how long the agency will keep it (24-18-302(2)(d)(IV) and (VI)). In a criminal case, drone footage held as evidence is subject to the prosecution’s discovery obligations under Crim. P. 16.

Are There Restrictions on Drone Flight Altitude During Surveillance?

For drones flown under the FAA’s Part 107, the aircraft “cannot be higher than 400 feet above ground level,” unless it is flown within a 400-foot radius of a structure and no higher than 400 feet above the top of that structure (14 C.F.R. 107.51(b)). Part 107 applies by its terms to civil small drones (14 C.F.R. 107.1(a)), so whether it governed a particular police flight is something to establish from the agency’s records. Colorado’s criminal and government statutes do not set a separate altitude limit for police drones.

How Can Citizens Report Misuse of Police Drones?

Citizens can report concerns directly to the law enforcement agency involved, such as through its internal affairs or professional standards unit, or to a local civilian oversight body where one exists. For facial recognition, an agency’s accountability report must set out its procedures for receiving and responding to feedback from affected individuals and the community (24-18-302(2)(h)). If drone evidence is being used against you in a criminal case, tell your lawyer. How the drone was used may matter to your defense.

What Training Do Police Officers Receive for Operating Drones?

Colorado’s criminal and government statutes do not set drone training requirements for police officers. For flights under the FAA’s Part 107, the person at the controls must hold a remote pilot certificate with a small UAS rating or be directly supervised by someone who does (14 C.F.R. 107.12), and a remote pilot must have completed one of the listed knowledge steps, such as passing the initial knowledge test or completing recurrent training, within the previous 24 calendar months (14 C.F.R. 107.65). Separately, an agency that uses facial recognition must conduct periodic training of everyone who operates it or processes its data (C.R.S. 24-18-305(1)).