BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 262 Hearing Date: April 14, 2015
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|Author: |Galgiani |
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|Version: |February 18, 2015 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|MK |
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Subject: Unmanned Aircraft Systems: Law Enforcement Use
HISTORY
Source: California Police Chiefs Association
Prior Legislation:SB 15 (Padilla) failed Assembly Public Safety
2014
AB 1327 (Gorell) Vetoed 2014
Support: California District Attorneys Association; California
Peace Officers Association; Peace Officers Research
Association
Opposition:None known
PURPOSE
The purpose of this bill is to allow a law enforcement agency to
use an unmanned aircraft system if the agency complies with: (1)
protections against unreasonable searches and seizures; (2)
Federal Law applicable to the use of unmanned aircraft systems;
and, (3) state law applicable to the use of surveillance
technology.
Existing federal law, the Aviation Administration Modernization
and Reform Act of 2012 requires the Secretary of Transportation
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to develop a comprehensive plan to safely accelerate the
integration of civil unmanned aircraft systems into the national
airspace system. The plan is required to provide for safe
integration of civil unmanned aircraft systems into national
airspace as soon as practicable, not later than September 30,
2015. (112 P.L. 95, 332.)
Existing law authorizes the Attorney General, chief deputy
attorney general, chief assistant attorney general, district
attorney or the district attorney's designee to apply to the
presiding judge of the superior court for an order authorizing
the interception of wire or electronic communications under
specified circumstances. (Penal Code §§ 629.50 et. seq.)
Existing law prohibits wiretapping or eavesdropping on
confidential communications. (Penal Code § 630.)
Existing law makes it a crime for a person, intentionally, and
without requisite consent, to eavesdrop on a confidential
communication by means of any electronic amplifying or recording
device. (Penal Code § 632.)
Existing law exempts the Attorney General, any district
attorney, specified peace officers such as city police and
county sheriffs, and a person acting under the direction of an
exempt agency from the prohibitions against wiretapping and
other related activities to the extent that they may overhear or
record any communication that they were lawfully authorized to
overhear or record prior to the enactment of the prohibitions.
Existing law provides that any evidence so obtained is
admissible in any judicial, administrative, or legislative
proceeding. (Penal Code § 633.)
The US Constitution provides that "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." (4th Amendment
of the U.S. Constitution.)
The California Constitution provides that "the right of the
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people to be secure in their persons, houses, papers and effects
against unreasonable seizures and searches may not be violated;
and a warrant may not issue except on probable cause, supported
by oath or affirmation, particularly describing the place to be
searched and the persons and things to be seized." (Article I,
Section 13 of the California Constitution.)
Existing law defines a "search warrant" as an order in writing
in the name of the People, signed by a magistrate, directed to a
peace officer, commanding him or her to search for a person or
persons, a thing or things, or personal property, and in the
case of a thing or things or personal property, bring the same
before the magistrate. (Penal Code § 1523.)
Existing law permits a search warrant to be issued for any of
the following grounds:
When the property subject to search was stolen or
embezzled;
When property or things were used as the means to commit
a felony;
When the property or things are in the possession of any
person with the intent to use them as a means of committing
a public offense, or in the possession of another to whom
he or she may have delivered them for the purpose of
concealing them or preventing them from being discovered;
When the property or things to be seized consist of any
item or constitute any evidence that tends to show a felony
has been committed, or tends to show that a particular
person has committed a felony;
When the property or things to be seized consist of
evidence that tends to show that sexual exploitation of a
child or possession of matter depicting sexual conduct of a
person under the age of 18 years has occurred or is
occurring;
When there is a warrant to arrest a person;
When a provider of electronic communication service or
remote computing service has records or evidence, as
specified, showing that property was stolen or embezzled
constituting a misdemeanor, or that property or things are
in the possession of any person with the intent to use them
as a means of committing a misdemeanor public offense, or
in the possession of another to whom he or she may have
delivered them for the purpose of concealing them or
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preventing their discovery;
When the property or things to be seized include an item
or any evidence that tends to show a violation of a
specified section of the Labor Code, or tends to show that
a particular person has violated that section;
When the property or things to be seized include a
firearm or any other deadly weapon at the scene of, or at
the premises occupied or under the control of the person
arrested in connection with, a domestic violence incident
involving a threat to human life or a physical assault, as
specified;
When the property or things to be seized include a
firearm or any other deadly weapon that is owned by, or in
the possession of, or in the custody or control of,
specified persons;
When the property or things to be seized include a
firearm that is owned by, or in the possession of, or in
the custody or control of, a person who is subject to the
prohibitions regarding firearms, as specified, if a
prohibited firearm is possessed, owned, in the custody of,
or controlled by a person against whom a specified
protective order has been issued, the person has been
lawfully served with that order, and the person has failed
to relinquish the firearm as required by law; or when the
person is subject tot a gun violence restraining order,
When the information to be received from the use of a
tracking device constitutes evidence that tends to show
that either a felony, a misdemeanor violation of the Fish
and Game Code, or a misdemeanor violation of the Public
Resources Code has been committed or is being committed,
tends to show that a particular person has committed a
felony, a misdemeanor violation of the Fish and Game Code,
or a misdemeanor violation of the Public Resources Code, or
is committing a felony, a misdemeanor violation of the Fish
and Game Code, or a misdemeanor violation of the Public
Resources Code, or will assist in locating an individual
who has committed or is committing a felony, a misdemeanor
violation of the Fish and Game Code, or a misdemeanor
violation of the Public Resources Code; and
When a sample of the blood of a person constitutes
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evidence of a DUI. (Penal Code §1524(a).)
This bill provides that a law enforcement agency may an unmanned
aircraft system if the use of the unmanned aircraft system
complies with all the following:
Protections against unreasonable searches guaranteed by
the United States Constitution and the California
Constitution.
Federal law applicable to the use of an unmanned
aircraft system by law enforcement agency, including but
not limited to, regulations of the Federal Aviation
Administration.
State Law applicable to a law enforcement agency's use
surveillance technology that can be attached to an unmanned
aircraft system.
This bill defines law enforcement agency as the police or
sheriff's department of a city, county or city and county.
This bill defines unmanned aircraft as an aircraft that is
operated without the possibility of direct human intervention
from within or on the aircraft.
This bill defines unmanned aircraft system as an unmanned
aircraft and associated elements, including, but not limited to,
communication links and the components that control the unmanned
aircraft that are required for the pilot in command to operate
safely and efficiently in the national airspace system.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
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overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
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COMMENTS
1. Need for This Bill
According to the author:
As the Federal Aviation Administration (FAA) prepares
to open the skies to regulated public and private use
of unmanned aircraft systems, clear guidelines for law
enforcement use of this new technology is absolutely
imperative.
The FAA has jurisdiction over specific policy
requirements of the operation of both unmanned and
manned aircraft. The FAA recently issued proposed
unmanned aircraft systems (UAS) regulations for public
review. It would be preemptive and confusing to
propose legislation that could potentially conflict
with the upcoming FAA regulations for the public use
of unmanned aircraft systems. Thus, this legislation
addresses broad privacy concerns and the responsible
use of unmanned aircraft systems by law enforcement in
respect to the privacy of our state's citizens without
creating policy that could conflict with future FAA
regulations.
This legislation simply applies what is currently
required by the Fourth Amendment (U.S. Constitution)
to the use of unmanned aircraft. This allows for the
utilization of plausible vantage points, in compliance
with the Fourth Amendment. SB 262 apples privacy
regulations that are currently applied to manned
aircraft to unmanned aircraft.
AB 1327 required the acquisition of a warrant for the
use of unmanned aircraft systems over both public and
private land in most instances. Because public
property is the quintessential "plausible vantage
point," an observation of evidence that could have
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been seen from a public place is not a search, and
therefore should not require a warrant. A search
warrant for the use of electronic aerial visual
surveillance, enabled by an unmanned or manned
aircraft is not required if an aircraft or UAS is
flown in accordance with FAA regulations and the
aircraft or UAS in not flown in a physically intrusive
manner. The test to whether or not a warrant is
required if the officers utilized technology that
merely permitted them to see things they could have
seen from a plausible vantage point, although less
clearly and with somewhat more effort. Nor is a
warrant required merely because a surveillance device
was "sophisticated" or technologically complex.
2. Unmanned Aircraft Systems
This bill would use the term "unmanned aircraft systems," as
defined, to reference what are commonly known as drones. That
term, also used by the Federal Aviation Administration (FAA),
would be defined to include the unmanned aircraft itself (the
drone) and the associated elements (which include the components
that control the aircraft). Regarding the types of aircraft
that may be considered unmanned aircraft systems, the FAA's fact
sheet notes:
Unmanned Aircraft Systems (UAS) come in a variety of
shapes and sizes and serve diverse purposes. They may
have a wingspan as large as a Boeing 737 or smaller than
a radio-controlled model airplane. Regardless of size,
the responsibility to fly safely applies equally to
manned and unmanned aircraft operations.
Because they are inherently different from manned
aircraft, introducing UAS into the nation's airspace is
challenging for both the FAA and aviation community. UAS
must be integrated into a National Airspace System (NAS)
that is evolving from ground-based navigation aids to a
GPS-based system in NextGen. Safe integration of UAS
involves gaining a better understanding of operational
issues, such as training requirements, operational
specifications and technology considerations.
3. Fourth Amendment
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Both the United States and the California constitutions
guarantee the right of all persons to be secure from
unreasonable searches and seizures. (U.S. Const., amend. IV;
Cal. Const., art. 1, sec. 13.) This protection applies to all
unreasonable government intrusions into legitimate expectations
of privacy. (United States v. Chadwick (1977) 433 U.S. 1, 7,
overruled on other grounds by California v. Acevedo (1991) 500
U.S. 565.) In general, a search is not valid unless it is
conducted pursuant to a warrant where a person has a reasonable
expectation of privacy. The mere reasonableness of a search,
assessed in light of the surrounding circumstances, is not a
substitute for the warrant required by the Constitution.
(Arkansas v. Sanders (1979) 442 U.S. 753, 758, overruled on
other grounds by California v. Acevedo, supra.) There are
exceptions to the warrant requirement, but the burden of
establishing an exception is on the party seeking one. [Arkansas
v. Sanders (1979) 442 U.S. 753, 760, overruled on other grounds
by California v. Acevedo, supra.]
4. Use of Unmanned Aircraft System by Law Enforcement
This bill would permit a police or sheriff's department to use
an unmanned aircraft system (drone) if they comply with all of
the following:
Protections against unreasonable search and seizures;
Federal law applicable to the use of an unmanned
aircraft system by a law enforcement agency; and
State law applicable to a law enforcement agency's use
of surveillance technology.`
The sponsor states that this bill:
[W]ould allow law enforcement agencies to utilize and
deploy new life-saving technology while respecting the
privacy of California citizens.
5. Use of Drones on Public Property
The author's statement talks about a warrant not being necessary
for a "plausible vantage point." While this is true, are drones
the same as a police car driving by or a person watching from a
window across the street or a helicopter flying overhead? If
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technology were such that a drone could be small enough to hover
over a street corner amongst the trees and watch what is going
on below, is that the same as a police officer walking or
driving by? Is a quiet drone flying over a yard the same as a
helicopter flying overhead? Does the fact that a drone can fly
lower than a helicopter or airplane differentiate it from a
helicopter?
6. Approval of Legislative Body?
This bill permits a police or sheriff's department to use a
drone without an specific requirement that the local governing
agency approve the use. In 2013, in Alameda County, the sheriff
attempted to request funding for a drone. Ultimately, public
backlash and concern led to the sheriff to abandon his pursuit
of the drones. (Woodall, War on terror money funding drones,
surveillance in the Bay Area, Oakland Tribune (April 7, 2013).)
More recently, the Berkeley City Council passed a one year
moratorium on the use of drones by their police department,
while still allowing the fire department to use drones.
(Shuttlesworth, Jeff, Berkeley Bans Police Drones for One Year
SFbay.ca February 25, 2015) Two drones acquired by LAPD were
"grounded" until the Police commission approves a policy for
their use. (Palmer and Mester, LAPD's Two Drones Will Remain
Grounded During Policy Review, Police Commission Says Among
Protest, KTLA 5 News, September 15, 2014)
Should this bill require approval by the appropriate legislative
body before a police or sheriff's department acquires or uses a
drone?
7. Policy and Training
This bill allows a police or sheriff's department to use a drone
without requiring that the department creates a policy on the
use of a drone. Should the bill require a policy be established
before drones are used? A policy should include when the drone
is to be used; what is to be done with the data that is
collected, including how long it will be stored and how a member
of the public can get access to the data and any limits that are
to be placed on the use of the drone. As noted in the previous
comment, LAPD is already in the process of crafting policies for
the use of their drones. "Having rules in place may not be much
comfort to the person who looks up from his backyard and sees an
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LAPD drone overhead. But it could, at least, ensure that the
devices are used to fight crime, not to spy or harass. "(Newton,
Jim Drones and the LAPD Los Angeles Times, November 16, 2014
Should the bill also require those who are to be using the
drones to be trained in the policies adopted by the agency? If
an agency must adopt a policy before using a drone it may make
sense to require those charged with operating the drone to be
trained in the policy.
8. Weapons
Drones have the capability of being armed with weapons, lethal
and nonlethal. The United States has used armed drones to target
militants in military operations abroad. (Christopher Drew,
Drones Are Weapons of Choice in Fighting Qaeda, New York Times
(Mar. 17, 2009).) Domestically, there has been a push by some
law enforcement agencies to arm drones to fire rubber bullets
and tear gas. (See Drones over US to get weaponized - so far,
non-lethally, RT.com (May 24, 2012).) Should this bill
prohibit the weaponization of drones or should that be part of
the policies established locally?
9. Other Similar Bills
AB 56 (Quirk) prohibits the use of a drone by a public agency,
including a law enforcement agency, unless under specified
circumstances including with a warrant; in an emergency where
there is a threat to life; by a first responder to a traffic
accident; to check for wilderness fires; and, to determine
appropriate response to a disaster. This bill is very similar
to AB 1327 (Gorell) which was vetoed last year. AB 56 (Quirk)
is scheduled for a hearing in Assembly Public Safety on April
14th.
-- END -
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