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Eyes in the sky: Increased drone use by police

By Stacy Gittleman

Jim Santilli’s business is taking off. As the president of American Air Operations in Troy, Santilli holds an Airman Certificate from the Federal Aviation Administration (FAA) to train clients to operate small unmanned aircraft systems, (sUAS) or drones. Serving as his company’s primary drone flight instructor, Santilli has trained hundreds of public safety clients around the country, including the Michigan State Police, the Oakland County Sheriff's Office, and the Bloomfield Township, Rochester and Troy police departments for their drone programs.

At the time Downtown Newsmagazine caught up with him in late November, he was in the process of training more drone pilots who are law enforcement personnel in Bloomfield Township, Warren and Trenton, as well as the Wayne County Sheriff’s Office, before heading south to train more clients in Florida.

Some police forces are complete beginners while others are expanding, reinforcing or upgrading their training to activate new capabilities on their drones. With the exception of Royal Oak, and Bloomfield Hills which is just considering getting a drone, the police forces in Birmingham, Bloomfield Township, and neighboring Troy, West Bloomfield, Southfield and Farmington Hills have drone programs.

For the growing number of law enforcement departments around the state and nation to operate an sUAS, Santilli said they must train and attain either a Part 91 Certificate of Authorization license, which can take months, or a Part 107 license, both issued by the FAA. Any violation of the parameters which allow police to use drones, especially violations of search and seizure laws as set by the Fourth Amendment, would be cause for the FAA to revoke a department’s drone license.

“Obviously, as a law enforcement or government agency, you can't just pull a drone out of a box and put it up (in the air),” explained Santilli. “You must comply with FAA regulations. That includes either having an airman certificate of authorization (COA) with a small UAS rating or be certified under Part 107 of FAA regulations. Under the COA, an agency needs to fill out an application and needs to justify that it will safely operate its drone according to the FAA regulations. However, not a lot of government entities go the route of the COA. Part 107, from a safety liability standpoint, is the way my law enforcement clients are going. Plus they can be trained more quickly to pass certification and take it to the next step for the FAA to issue a license.”

Outside of a thorough review of the FAA regulations, Santilli said he offers law enforcement a standard operating procedure guide that includes language on privacy and how data and photographs and other data collected in targeted surveillance missions can be used in accordance with the Fourth Amendment.

To assuage misconceptions that law enforcement can fly routine, random surveillance missions over any street or backyard, Santilli asserted the fact that any surveillance mission must be targeted and requires a search warrant approval.

Santilli said the growing demand for his services proves that as drones become cheaper, smaller and more sophisticated, they are becoming an intrinsic tool in law enforcement and life-saving first responder work, to get into areas too small and too dangerous for even helicopters to enter. From fires to floods to accidents and hurricanes, Santilli has seen up close the numerous examples of how drones are being put to work.

“The opportunities here are endless,” Santilli said. “Obviously, from a privacy standpoint, we would not want the government to be using them to invade or violate privacy rights. And everyone I train in law enforcement is well aware of this. Most departments are pretty strict as far as how they are going to use their drones and that means they are limiting them to emergencies, crash investigations, and search and rescue operations.”

Though all law enforcement officials interviewed for this article strongly asserted that they have no intentions to use their expanding drone programs to randomly survey people out in public or the privacy of their backyards, civil rights organizations such as the American Civil Liberty Union (ACLU) caution that there is always a risk that well-intentioned government agencies can overextend their use of drones, as seen in parts of Maryland and California.

Though the ACLU repeatedly turned down requests for an interview, Downtown Newsmagazine was referred to its July 2023 report entitled “Eye-in-the-Sky Policing Needs Strict Limits.”

According to the report, over 1,400 police departments in the United States use drones. Deployment rose sharply after the FAA enacted new regulations in 2016, allowing anyone to fly a drone as long as they follow certain rules.

Under these regulations, all drone operators are still generally not allowed to operate a drone beyond their visual line of sight (BVLOS). A few departments, including the Oakland County Sheriff’s Office, have deployed a drones-as-a-first responder (DFR) program. These departments have gone through extensive and time-consuming processes to secure a special exemption from this ban from the FAA so that they can carry out drones-as-first-responder flights.

The ACLU reported that in 2020, a poll by the organization Drone Responders found that 75 percent of 248 public safety respondents wished to be certified for beyond their visual line of sight flights. The process of applying for an FAA waiver is getting smoother, and companies have already begun marketing drones and software specifically for the first responder market.

The report, which highlighted thousands of DFR drone flights conducted by Chula Vista, Calif., categorized the bulk of the flights responding to serious situations such as fires, accidents and gun violence. But others were related to nuisance calls, wellness checks, mental health evaluations and “suspicious persons.”

The report also revealed that some California municipalities were sending drones on anticipatory missions to scope out parking structures or streets where there had been a rash of vehicle burglaries. Predictive policing software that detects a potential crime wave may be inclined to send a drone for a routine patrol of certain neighborhoods, or police may suggest that people are asking to have their streets surveyed by drones for enhanced security over many street blocks to prevent and solve more crime. But this kind of speculation, combined with the rise of artificial intelligence being used to possibly run through vast amounts of surveillance photos or video footage, the ACLU in this report alluded to a point that there is a large potential for law enforcement to stretch and abuse the technology.

At the state legislature level, there has been growth in drone-related regulations as documented by the National Conference on State Legislatures. It reported that since 2013, at least 44 states have enacted laws addressing drones and an additional three states have adopted resolutions. Common issues addressed in the legislation include defining what a sUAS, or drone, is, how they can be used by law enforcement or other state agencies, how they can be used by the general public, and regulations for their use in hunting game.

For state legislatures passing such legislation, 2021 proved to be a busy year.

California, Maryland, Washington and the District of Columbia imposed certain restrictions on law enforcement agencies seeking to acquire specific equipment, including drones, from a program operated by the federal government.

Florida, Tennessee and Texas expanded allowable drone uses for law enforcement agencies and first responders. Massachusetts, New Jersey and Oregon appropriated funds for drone-related purposes including drone facility improvements, high-resolution mapping and drone programs.

Mississippi and South Dakota addressed personal privacy concerns related to operating drones. North Carolina required an annual report on drone use by state agencies.

In 2020, Idaho and Minnesota permitted law enforcement agencies to operate drones for specified purposes, including traffic crash reconstruction, search and rescue missions, and training purposes.

Vermont prohibited law enforcement from operating drones while using facial recognition, except for purposes such as search and rescue and assessing wildfires, floods and storms.

In Michigan, Senate Bill (SB) 992, enacted in 2016, prohibits local authorities from regulating drone operations. The only exception is for regulated drones belonging to a locality. This law also allows FAA-qualified commercial and recreational drone pilots, who comply with federal laws, to fly in the state .

The law states that no drone pilot shall operate drones in a manner that interferes or can potentially interfere with emergency responders, an individual’s right to safety and reasonable expectation to privacy, restraining order violations, nor can they capture images that infringe on personal privacy.

Also, committed sex offenders cannot use drones to communicate, stalk, photograph, film, or record persons the law prohibits them from contacting. Drone pilots who violate this law are guilty of an offense.

In addition, Michigan does not require a government agency operating a drone to write a drone usage policy or have a written one available to the general public or visible in municipal documents or documentation found on a municipal website. Most municipalities contacted by Downtown Newsmagzine do have written policies on their use of drones, which were acquired by filing Freedom of Information Act requests.

Currently, there is proposed legislation in Lansing, still in committee, that takes aim at the potential for foreign influence and intrusion in government through technology, including foreign-made drones.

In 2018, the U.S. Department of Defense banned the use of all commercial off-the-shelf drones, regardless of manufacturer, due to cybersecurity concerns. Just this November, a bill was introduced in Congress prohibiting the U.S. government, and local government using federal grant funds, from purchasing drones manufactured in China. At the same time, an amendment to another bill was offered in the Senate to prohibit the FAA from using or providing grants to purchase drones made in China, Russia, Iran, North Korea, Venezuela or Cuba.

Michigan state Representative William Bruck (R-Lenawee and Monroe counties) also shares these concerns and would like to see this federal rule adopted here in Michigan. In September 2023, he introduced House Bills 5066-5067, which would prohibit state and local governments from using potentially dangerous foreign technology, such as drones, as well as state contracts that could provide personal information to foreign entities.

In addition to the legislation, Bruck has formed the Michigan Legislature’s Working Group for National Security. The working group, which is open to bipartisan participation, will delve into assessing potential threats, provide information and explanations to their legislative colleagues and the public, and guide statutory and regulatory reforms.

“Anybody with a drone can become a Peeping Tom, but I do not think that is what people are concerned with, especially of the possibility of it being done by law enforcement,” said Bruck. “But the newly formed Working Group for National Security here in Lansing is concerned about the insecurity of the drones because where they are manufactured.”

Bruck said because this technology is manufactured in China, there may be a slight chance that the software and hardware could provide a “back door” for intrusion or a data breach to send sensitive information out of the country, therefore endangering national or state security.

“I think we should adopt federal guidelines at the state and local level,” Bruck said. “Whether it is a local municipality, police department or a county sheriff’s office, they should be aware that they are purchasing a drone that at the federal level has proven to have inconsistencies when it comes to security. Adapting the federal purchasing guidelines would be a start.”

Based on interviews with law enforcement officials from the Oakland County Sheriff’s office to Farmington Hills, this is not the case.

According to local drone distributors and law enforcement officials interviewed, the drones manufactured and sold by the Chinese company DJI are the top choices for law enforcement for their reliability, sophisticated functionality and affordable price points. Departments from Oakland County Sheriff to Michigan State Police to local departments all deploy DJI drones, and by some estimates 50 percent of drones in the country purchased by law enforcement are from DJI.

The Oakland County Sheriff’s Office has 23 drones and 87 trained pilots. According to Oakland County Sheriff Michael Bouchard, it is the largest law enforcement drone program in the state and among the top five largest in the country. The OCSO in 2022 launched its drones as a first responder program. OSCO’s drones range from smaller models that can drop inside a home or building to aid the work of SWAT teams or larger ones to map out traffic accidents along the highways.

Bouchard said in the future, he hopes that all of the county’s 12 substations will be outfitted with a drone and a trained pilot. While smaller drones must be viewable within 400 feet of a drone pilot, other, larger and more sophisticated drones used as first responders for more acute emergencies are permitted to fly miles away from their base.

“For certain missions, we have received FAA authorization to deploy a drone beyond the visual line of sight, which means we must watch the airspace and not specifically the drone so we can fly a much farther distance,” said Bouchard. “If we launch from our highest point, such as our office in downtown Pontiac, we can get our drones to most locations extremely quickly and pass on information with this powerful tool.”

For example, in late October, Bouchard recalled an incident when a drone pursued a person with a felony warrant who attempted to escape arrest. When the drone arrived on the scene and a deputy vehicle activated its patrol car lights, the suspect took off again. The deputy terminated his pursuit, the drone followed the suspect to a point where he stopped in an area where more deputies had gotten to the area ahead of time thanks to being alerted by the drone.

Bouchard said there is a popular misconception that law enforcement is using drones for long-scale regular surveillance.

“Drones do not have that long of a battery life for starters,” explained Bouchard. “Unless you receive FAA authorization to go great distances, they are not a great surveillance tool. Surveillance from the air is best conducted with a manned aircraft (like a helicopter) that can follow a suspect for miles. Drones are used for finite, immediate breaking situations and we have very robust guidelines when it comes to privacy concerns.”

For transparency’s sake, details of the sheriff’s office first responders drone program and policy are publicly available on the department’s website. There, the department states that its drones as first responders program “brings updated technology to the traditional 911 response. In addition to a deputy being dispatched, a drone could also be launched to give units on the ground an aerial observation platform. This enhances a deputy’s situational awareness and makes drone operations safer.”

According to the policy, the program launches a drone from a central location to cover a predetermined radius of responses. It can arrive at the scene of a crash or a crime in five minutes or less, half the time of a responding law enforcement car. Once on scene, the drone pilot can assess the situation and report to officers who are on their way to the scene, who can see what’s going on through live video sent to the deputies in their vehicle, enabling them to plan the best de-escalation tactics for the situation. By observing the real-time dynamics of an incident, deputies increase the probability of positive outcomes.

The OSCO’s procedures dictate that a drone’s camera is focused only on the specific location of the call incident. When the deployment ends, the camera points up to the sky to prevent accidental intrusion into people’s privacy.

The OCSO’s policy also states that unmanned aircraft: “are only deployed to support investigations and any citizen’s or deputy’s call for service. They must be operated consistent with the U.S. and Michigan Constitutions and all other applicable laws. Agency personnel shall abide by the Fourth Amendment and not use drones to conduct an unreasonable search or seizure. When a search warrant is required by law, and no warrant exception exists, flight is prohibited unless a search warrant is obtained.”

The policy continues: “Unmanned aircraft may not be used solely for the purpose of monitoring activities protected by the First Amendment or the lawful exercise of other rights secured by the U.S. and Michigan Constitutions, except as necessary to protect people who are exercising their constitutional rights. Drones shall not be used in any manner that would violate any law; discriminate against any persons based upon their ethnicity, race, gender, national origin, religion, sexual orientation, or gender identity; may not be used to intimidate any person; and may not be used for any type of random patrol. The use and operation of drones will be recorded, documented, and reported in the transparency webpage available for public view and Patrol Services Year End Report.”

As far as imaging, the policy states that drones “shall not intentionally record or transmit images of any location where a person would have a reasonable expectation of privacy. Operators and observers shall take reasonable precautions to avoid inadvertently recording or transmitting images of areas where there is a reasonable expectation of privacy. Reasonable precautions can include, for example, deactivating or turning imaging devices away from such areas or persons during sUAS operations.”

Bouchard said that any photos taken with drones, just as photos and video taken with bodycams, are purged within a designated timeframe unless they are needed for a specific investigation. He also added that while his office uses drones manufactured in China, he said there should be a push from Congress to ease the way for American manufacturers to make drones that are equal to the quality and sophistication of Chinese drones.

In 2015, the Michigan State Police (MSP) became the first statewide police agency in the country to win approval to use drones in accident and crime scene investigations.

MSP purchased its first drone in 2013, but didn’t receive FAA approval until two years later. The arrangement also allowed MSP to assist other municipalities requesting drone support. Among the operations a drone might support are search-and-rescue missions and crime scene and crash investigations.Now, MSP has four drone pilots which operate a fleet of five drones and is looking to hire at least one more pilot next year. The drones are mainly used for documenting crime scenes traffic analysis and aiding officers in the event of crashes. For search and rescue operations, MSP relies on its helicopters and planes.

“Unlike the Oakland County Sheriff’s Office, which has a larger fleet because they are using them in their first responder efforts, MSP only uses drones in active crime scenes or for documenting the scene of a crash,” said Sgt. Michael Darrow of the MSP Aviation Unit - sUAS. “If we are performing documentation of a crime scene and using a drone for documentation, that means we already have a search warrant. If it’s a homicide and we’re there documenting that crime scene, then a search warrant has already been issued for preservation of evidence. Everything we do with a drone would be done like that. We don’t just fly drones to fly drones around people’s property.”

At the time that the MSP was launching its drone program, the ACLU called for strict limits on the deployment of drones and data retention and said under no circumstances should they be equipped with lethal or non-lethal weapons. ACLU-Michigan worked with MSP on their policies and had no issues with the MSP using drones for accident reconstruction.

The Birmingham Police Department purchased its first DJI Matrice 350 RTK safety drone in October 2023 for $23,000. The price included the drone, a camera with infrared capabilities, extra battery packs and charging units. Birmingham Police Chief Scott Grewe said that two officers were FAA trained through the OCSO and additional officers will be trained in 2024.

“Our goal is to make sure that we have as many of our personnel as possible trained to operate the drone so the use and deployment of the drone would be available any time we need to deploy it,” Grewe said.

He said in the months the city has had a drone, which resides in city hall, they have not yet used it for any major incidents and do not intend to use it on a day-to-day basis.

Grewe stressed that a police department cannot abuse its use of a drone if it wants to keep its operating license. Grewe allayed fears of residents who believe that its drone will constantly be hovering over the streets of Birmingham, taking random pictures that could be used as incriminating evidence. He stressed that is just not the case.

“This is not about randomly monitoring people,” maintained Grewe. “In the case that we have a missing person, be it a child or an adult with Alzheimer’s or dementia, or if a crime suspect is fleeing, that is when we would use it. We will not be using it on a day-to-day basis just up there in the air monitoring the town.”

Grewe explained one area where the drone will come in handy is the recent implementation of the city’s overwatch program, which is used for special events that bring crowds into town.

Grewe said that Birmingham activated this heightened security program in the summer of 2022, when a mass shooter at a July 4 parade in Highland Park, Ill., killed seven people and injured dozens. In its overwatch program, police are stationed on rooftops to survey crowds during special events, art and farmers markets, and other public gatherings. A drone added to the mix would just enhance the department’s capabilities.

“Ever since that shooting, we have heard from residents and business owners alike that they would appreciate ramped-up security during special events,” Grewe said. “Many of those events take place in the heat of the summer. Our drone will give us more eyes and ears overhead. Additionally, it costs the taxpayer extra in overtime in manpower on special event days with officers spending a lot of time stationed on hot tar roofs. As long as its battery lasts, a drone can hover over a crowd without breaking a sweat.”

With that said, Grewe said the technological capabilities of a drone, no matter how advanced, can never replace “boots on the ground” skills of a police officer.

“The drone provides an extra level of service during a major incident. We can have one officer operating a drone giving information to others on the ground, and we can provide greater coverage with less manpower and reserve those officers to be more readily available for other emergencies.”

Birmingham has a drone policy that Downtown Newsmagazine acquired after filing an FOIA request. Active as of October 2023, the policy states that “only FAA licensed pilots may operate the city’s drone or Unmanned Aircraft System (UAS). During operations, there is pilot, a person controlling the UAS during a flight, and the visual observer, who is responsible for the visual observation of the UAS while in flight. The observer will alert the pilot of any conditions which will affect the safety of the flight.”

The policy states that when the UAS is being flown, “operators will take steps to ensure the camera is focused on the areas necessary to the mission and to minimize the inadvertent collection of data of uninvolved persons or places.”

Drones will not be equipped with weapons, and missions will be limited to specific life-saving applications, as well as cases that involve barricaded suspects, hostage situations, active shooters, apprehension of armed and dangerous or violent fleeing suspects and high-risk search warrants. All missions will require approval by commanding officers before deployment.

Birmingham’s policy also details the use of data gathered by drones. After each mission, recorded data will be reviewed and evaluated to see it is of evidentiary value to specific criminal cases..

It states: “Data of unidentifiable individuals captured during a UAS mission shall not be retained unless there is a reasonable belief that evidence of criminal activity is present. All retained data shall be maintained or destroyed pursuant to our Department’s Record Retention and Security Policy and in compliance with applicable laws and regulations. The UAS will record only when necessary for evidence collection.”

When purchasing its drone, Birmingham worked with NOAR Technologies, a family-owned drone technologies dealer based in Clawson. The 14-year-old business’ clients also include the MSP, several other local law enforcement agencies, as well as law enforcement and intelligence clients around the country. Their go-to brand for law enforcement clients is DJI’s Matrice line. Until drones are made domestically with the same quality, reliability and capabilities, NOAR said it will continue to recommend this Chinese manufacturer.

“Even if you can find an American-assembled drone maker and manufacturer, the components are still made in China,” said NOAR Technologies Vice President Michelle Studer. “When it comes down to a drone’s capabilities, price points and the quality of the way they fly, there really is not a match out there from a domestic manufacturer.”

In addition to hardware and software sales, NOAR offers a two-day course in preparation for the FAA 107 certification exam. It also works with law enforcement departments to customize and deploy their drone program.

Studer highlighted the advantages of a drone’s heat-sensing capabilities in both firefighting and police work. The same heat sensors that can detect human life to locate victims overcome with thick smoke in a burning building were also the ones used April 2012 by Boston law enforcement to capture the Boston Marathon bomber who was hiding in a boat in someone’s backyard.

“In firefighting, drones with sophisticated sensors working outside a structure give first responders efficiency in a way that gives them a visual where otherwise their vision would be blocked by smoke,” Studer said. “In both firefighting and police work, the thermal capabilities of a drone bring an advantage to those people that are putting their lives on the line to go into these situations to mitigate or lessen the risk and hopefully, essentially save lives. If I had it my way, going forward, every officer should always have some type of drone model in their vehicle readily available to be deployed. Drones are a fast, reactionary tool which can be deployed in situations and boast a vast number of capabilities.”

Studer explained that in cases where police are in pursuit of a barricaded active gunman, a drone can be a lifesaving tool for them as it gives the police the advantage of the element of surprise.

“Police in certain situations are unsure what is waiting for them on the other side of a door,” Studer said. “Unfortunately, there have been instances when a police officer lost his life because it was unknown if the person who was barricaded was still active and armed. As soon as they entered with force, the officer was shot and killed. Imagine if we can invert this scenario. Instead of sending in police, they can send into the building a drone with a camera to track an active shooter. Even if the active shooter shoots down a replaceable $3,000 drone – it is not the loss of a human life. I’m always going to push forward for that piece of technology going forward.”

Bloomfield Township purchased for around $4,000 a DJI Mavic system with thermal imaging that can remain in flight for about 25 minutes. According to Bloomfield Township Police Chief James Gallagher, the drone is shared by the police and fire departments and resides at the township’s firehouse. The drone is operated by three trained pilots; two from the police department and one from the fire department. Gallagher said the township is looking to possibly purchase a second drone.

Outside of its FAA license, the township does not have a written policy regarding its drone program. Yet, after sharing that information, the next point Gallagher made is that Bloomfield Township cannot fly its drone to randomly survey its neighborhoods because that would be in violation of the Fourth Amendment.

“If someone calls in a complaint about something going on in a neighbor’s backyard, for example, whether it be a noise disturbance, or if someone is doing something suspicious, or constructing or storing something in their backyard that goes against a town ordinance, we as a police department cannot just fly a drone over your house to verify a complaint,” insisted Gallagher.

Just as law enforcement must adhere to airspace rules set by the FAA, so do drones flown by hobbyists, Gallagher added. For example, while law enforcement drone pilots with a surveillance permit are allowed to fly over special events such as the Dream Cruise, if hobbyist drones are flown over the same route, law enforcement will work to locate the drone operator and force them to bring it down. Gallagher said that the drone may also be used at demonstrations to keep an eye in the sky to look out for agitators in the crowd that could endanger public safety.

“The main purposes of why we deploy our drone are for searching for missing persons, a serious crime emergency, or severe traffic accidents,” explained Gallagher.

Gallagher said Bloomfield Township’s drones are deployed for specific emergencies. For example, in the summer of 2021, a woman went missing and drowned after taking her canoe into the lake behind Kirk on the Hills. Her body was located with the drone, which was able to fly around parts of the lake that would be too intrusive with a helicopter.

Bloomfield Hills from time to time has benefitted from the deployment of the OCSO’s drones and now Bloomfield Hills Public Safety Department Captain Dustin Lockard said the city is in the beginning phases of considering the purchase of a drone, which would mainly be used in firefighting and locating missing persons.

“Drones do a variety of things that can be accomplished on a cost effective basis,” Lockard said. “Though it could not replace helicopter use, there are specific situations such as the thermal camera that can locate lost people such as children, or patients who wander away from a memory care facility. We have seen a spike of incidents like this happening. If one missing person is found alive thanks to a drone, it pays for itself.”

Lockard pointed to a drone’s usefulness in putting out fires, as was seen at a recent house fire on Lone Pine Road in Bloomfield Hills.

On October 31, 2023, firefighters from multiple municipalities were called to the scene to fight a house fire on the 100 block of Lone Pine Road and deployed the drone from Bloomfield Township to fly over the scene to better direct firefighting personnel to position the hoses to extinguish the fire. Two firefighters received minor injuries and no residents were injured.

“The drone pilot helped direct our aerial ladders and their water streams from the air,” Lockard said. “So instead of them having to have somebody out there and telling us what they’re seeing, from our command post we could see where the water was aimed to better extinguish the fire because of the drone’s thermal imaging capabilities. For us, law enforcement is just one component of how drones can be utilized.”

With about $25,000 in drug forfeiture money, the Farmington Hills Police Department in 2019 purchased two DJI drones – the Matrice 210 and Mavic 2 Pro, along with the cameras that go with them. Together the drones can help police and firefighters track people at night, find hot spots in fires and make better decisions with overhead images of crime scenes, car crashes, barricaded buildings, pollution spills and buildings ablaze.

Farmington Hills Chief of Police Jeff King said now the municipality has 11 FAA-trained pilots using six drones. At the peak of the program, 14 staff were trained but some have recently retired. It is the municipality’s goal to train enough of its staff so there is always someone on duty with the know-how to deploy a drone.

King said one high-profile case used a drone to track down and ultimately catch and apprehend a serial prowler in March 2023. Investigators used the police department’s drone to find the suspect at night in a wooded area near Interstate-696 and Orchard Lake Road.

“With the drone, we were able to search through a complex large, wooded area at night,” King said. “It is very difficult to technically and safely conduct a grid search to locate a suspect in such conditions. By deploying a drone over the area, with its infrared capabilities, we were able to highlight all the heat sources in the area and distribute this data through the procedure with our coordinated officers safely and effectively to check on each one of those heat sources. Officers found him hiding under some debris in the heavily wooded area. With the element of surprise, we were able to safely and tactfully take him into custody in a way that he did not flee, resist arrest or attempt to attack any of the officers.”

King also recalled two separate incidents of juveniles who also went missing in the same day. One had special needs and the other was at risk of committing suicide with a knife after fleeing his home due to a domestic disturbance.

“We simultaneously deployed two drones to two parts of the city in the daylight. And with the information collected from the drones and then sent to traffic officers in pursuit, we were able to locate and safely approach both youths before any harm could happen to them.”

In terms of collecting and storing photos, videos and other data on drones, King said this cannot be done without a warrant.

“For certain criminal cases, we have used photos taken with drones with a search warrant. For surveillance, this is not a way we use drones because we are aware and mindful of privacy rights. We know that the optics of a police drone flying over someone’s home is concerning. Big Brother is not watching them. Drones are used in specific targeted areas in a way to minimize danger to both our officers but the individuals in the immediate area. Avoiding dangers to our officers, residents, and those who are being pursued outweighs any kind of a privacy issue. We have never violated anybody’s privacy issues while we were utilizing them,” King emphasized.

In its internal sUSA policy, obtained by Downtown Newsmagazine Farmington Hills police policy through a FOIA request, states the operators of the drone are ordered to “uphold the United States Constitution, the Constitution of the State of Michigan, all state laws and local ordinances when conducting operations of the sUAS. The rights against government intrusiton without due process shall not be infringed.”

The policy states that a drone operation to conduct surveillance may require a search warrant and that the drone is to be used for limited and specific missions pertaining to search and rescue, fire, and other emergencies and “will not be utilized for random, undirected surveillance of persons or places.”

The policy further states that “drone recorded data will not be collected,disseminated, or retained solely for the purpose of monitoring activities protected by the U.S. Constitution,such as the First Amendment’s protections of religion, speech, press, assembly, and/redress of grievances. Collection, use,dissemination,or retention of SUAS recorded data shall not be based solely on individual characteristics (race, ethnicity, national origin, religion, sexual orientation, age, or gender), which is a violation of the law.”

There is detailed language contained in the policy pertaining to the capture, recording, storage and use of digital images and videos. All drone flights are recorded with an onboard video retention system and recorded media will be retained for 180 days. Media is uploaded to a video storage system monitored by drone coordinators. Pilots will forward the onboard SD cards to the drone coordinators after each flight.

Lieutenant Steven Richter of West Bloomfield Police said the municipality since 2019 has deployed one drone operated by seven pilots. Just like other police departments interviewed, the drone is mainly used to find missing persons, track suspected persons fleeing a crime scene, and for specific traffic patrol incidents. It is also deployed for aerial viewing of special events such as the annual Friendship Walk. Richter said the high pixelation of the drone’s camera, which can zoom in to within fractions of an inch, have made the drone an essential tool in documenting and reconstructing accident scenes.

“When we are investigating a crash along a public roadway, there are no expectations of the protection of privacy, as we have clearance to fly around the scene of an accident to take aerial photographs according to FAA regulations,” Richter said. “However, where it gets tricky, because we are still unclear where the law is headed on this, is as it stands now, we are not permitted to fly over someone’s backyard to see if they are breaking the law. Technically, no one owns the airspace overhead and we can fly our drone anywhere. That is national airspace. But we will have to see where the courts weigh out. The courts have yet to rule on whether or not law enforcement can use drones to look into people’s backyards, but that is not why the West Bloomfield Police got our drone.”

The issue of limitations on where drones can fly is currently the subject of a case before the Michigan Supreme Court.

Hannah Zhao, staff attorney for the Electronic Frontier Foundation, has filed an amicus brief involving a drone in Long Lake Township, Grand Traverse County (Long Lake vs. Maxon), on behalf of her clients, Todd and Heather Maxon. In this case, Long Lake Township hired a private drone operator to repeatedly scope out the Maxon’s property and took photos for a zoning investigation. The township did this without a warrant and then sought to use this documentation in a court case against them.

Though this is a case where a township, not a law enforcement entity, did the surveillance, Zhao said the same laws apply. “Legally, there is not much difference between the government buying a drone and using it themselves or a government contracting with a private entity to operate a drone,” Zhao said. “In either case, this (private) entity becomes an actor of the government for the purpose of that drone operation.”

Zhao said that there are no specific state laws in Michigan that require the securing of a warrant when using a drone.

“There are some specific states that specifically require a warrant to be attained by the court before a government drone is deployed. In Michigan, the way the laws are written, it is more of an open question. So we are arguing that under the normal interpretation of the Fourth Amendment and the Michigan Constitution that there exists privacy and freedom from unreasonable search and seizure provisions that that that also requires a warrant. The Michigan statute does have a requirement that drones cannot violate a person’s reasonable expectation of privacy. And as the Supreme Court has said before, a person does have a reasonable expectation of privacy in their backyard or in the curtilage of their home.”

She is also closely watching the actions of New York City Mayor Eric Adams. Although the city has a drone policy in place that forbids random surveillance of private residences, Zhao said at a Labor Day press conference, Adams said NYPD would use its drones to fly over certain backyard barbecues to look for “suspicious activity” if the department received calls of larger than usual crowds from neighbors. When law enforcement officials said they are only going to use it for specific deployments and the drones cannot do regular surveillance because of a short battery life, Zhao just isn’t buying it.

“From Mayor Adams’ remarks this summer, you can see (drone use) is certainly increasing across government,” cautioned Zhao. “This is in spite the fact that the NYPD in its internal policy states that it will not use drones unless there is an emergency or if they have a search warrant. One of the things we know is that law enforcement acquires a lot of materials and equipment from the military. So right now, police are saying that their drones don’t have such a long battery life for extended surveillance. But what we see in the military are solar-powered drones that can stay up in the air for months. This military equipment is getting into the hands of more domestic arms of government.”

She continued: “Saying that a drone will not fly for a long time is just a technical barrier and one day, that barrier will no longer be there. What we really need right now is robust regulation and a lot of community input into what kind of surveillance folks want their communities to be subjected.”

At the conclusion of its July 2023 drone report, the ACLU recommended that local municipalities put the brakes on embracing and expanding the use of drones until they are further studied and a more comprehensive set of laws governing their use can be written.

It stated: “Given the uncertainties, we recommend that communities hold off on creating drones as first responder (DFR) programs until we have a better sense of how they play out in the communities that have already deployed them.”

The ACLU stated that existing DFR programs must adhere to a strict set of limits to make sure they don’t evolve into broader surveillance programs. Because drone use is so new and it is unclear what long-term implications they will have in our private lives, the ACLU urged that municipalities using them create policies that address transparency, useage limits and handling data.

Additionally, the report stated that “suspicionless aerial surveillance is against the Fourth Amendment” and therefore it is against law enforcement deploying surveillance technologies without the consent of the community it serves. Policies should not be written by the departments which use them but instead “be given legal force by a city council or other legislative body as part of a vote to approve a DFR program.”

ACLU recommendations include the creation of transparency policies which would outline the features of a drone’s sensor capabilities (such as night vision, radar and cell phone tracking tools) and other capabilities such as battery life, top speed and maintenance schedules. In its report, the ACLU recommended that enforcement agencies should have available a written list of reasons why a drone would be deployed, how data is stored and who can access the data.

“The public deserves to know to what extent these aircraft are offering practical real-world benefits for the community, and whether any such benefits outweigh their disadvantages. Law enforcement agencies tend to trumpet their successes and bury their failures, so communities should carefully consider how they can obtain independent auditing or other disinterested evaluations of the technology over time.”


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