Of Cows and Drones

In light of the ongoing NSA controversy, the arrest and conviciton of a North Dakota man involved in a June 2011 skirmish with a local SWAT Team has gained relevance. Just this past week Rodney Brossart became the first American citizen arrested with the help of a drone. Local police came to arrest Brossart when neighbors claimed he failed to return six of their cows that had wandered onto his land. After the police attempted to arrest him, Brossart and his three sons became involved in an armed altercation with the police that led to the SWAT team being called in for a 16-hour armed standoff.  Eventually, an unmanned Predator drone was called in to locate the Brossarts, and using the information provided by the drone the SWAT team was able to arrest them.

Brossart attempted to have all charges against him dropped as he argued that his rights were violated by the warrantless surveillance carried out by the drone. In July 2012, a District Judge ruled that the use of the drone, operated in public airspace, required no warrant and was not violating Brossart’s 4^th amendment rights. Brossart was eventually found guilty of terrorizing police.

Using the 2001 Supreme Court ruling in Kyllo v. U.S., some are arguing against the constitutionality of using a drone to monitor American citizens. In Kyllo the Court ruled that an arrest made off of evidence provided by the unwarranted use of thermal imaging to detect heat signatures coming from a man’s in-house marijuana farm was unlawful as the thermal imaging technology was not in “general public use”. In the Brossart case, it was ruled that the Kyllo ruling did not apply, as the drone, while certainly not a piece of technology in the general public use, was not used to determine whether or not a crime was being committed.

Interestingly, Brossart’s conviction came out on the same day that the Electronic Frontier Foundation released documents showing that Border Patrol had loaned its Predator drones over 700 times from 2010-2012 to groups such as the ICE, DEA and other state and local law enforcement agencies. While Brossart’s case is the first time someone has been arrested and convicted with information gathered from a surveillance drone, it is certainly not the first time drones have been used to monitor the activities of U.S. citizens.

Coming off of the President’s signing of a bill last February requiring the Federal Aviation Administration to make plans to “integrate drones into American airspace”, a sky populated with drones could be on the horizon and more issues involving their use are certain to arise. While a spat over a couple of cows in North Dakota seems too trivial a matter to make national news headlines, the drone-assisted arrest of Rodney Brossart could mark the beginning of what could be yet another fight between security agencies and advocates for the privacy of American citizens.

–Julian R. McIntyre III ’17