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Chris Bieri, Forum Communications Co., Published May 07 2012

Lakota cattle theft case sparks domestic drone debate

GRAND FORKS – News media around the nation are keeping a close eye on the case of a Lakota, N.D., area farmer accused of cattle theft because, many suggest, it has the potential to set Constitutional precedent for the use of unmanned aircraft in police surveillance.

But even farmer Rodney Brossart’s attorney Bruce Quick of Fargo, who accused law enforcement officials of violating Brossart’s Fourth Amendment rights, is saying he doubts any precedent will be made.

Last week, U.S. News and World Reports reported on that accusation, which was quickly picked up by Huffington Post. Slate.com also followed the story of “the first American to be arrested with the assistance of a drone.”

Quick argued the use of a U.S. Customs and Border Protection Predator B should have required a warrant in his April 10 motion to dismiss charges against Brossart and his family in Nelson County District Court.

The argument was only one of many, including “use of commandos to infiltrate the Brossart ranch,” meant to establish a “pattern of extreme conduct from the decision to arrest him for a non-crime to the use of excessive force and aggressively violating statutes.”

Nelson County State’s Attorney Doug Manbeck denied all that in his response, and said the drones did not play a part in investigating Brossart’s crimes and are, therefore, not pertinent to the case.

Bill Watson, who teaches aerospace law at UND, said he too doubts any precedent will be set because he thinks unmanned aircraft will be treated the same as manned aircraft by the courts.

Military devices?

The case against Brossart, 56, began in June when a neighbor told law enforcement officials that the Brossarts were holding three of his cows, each with a calf, that had wandered onto their land southeast of Lakota.

When officials tried to retrieve the bovines, they say Brossart resisted arrest and threatened them with deadly violence. They said Brossart’s three sons brandished long guns, that his daughter Abby assaulted an officer and that Susan lied to officers about how many guns the family had in their residences on the farmstead.

Concerned about possible violence, Sheriff Kelly Janke sought help from other law enforcement agencies in arresting the Brossarts June 23, including the CBP Predator.

In his motion, Quick cited the 2001 case Kyllo v. United States in arguing that the “Supreme Court held that obtaining information by sense enhancing technology not available for general public will be subject to constitutional protections against unreasonable searches and seizures.”

In the Kyllo case, the court ruled that thermal-imaging used to detect if Danny Lee Kyllo was growing marijuana in his Oregon home violated his Fourth Amendment rights. Kyllo had a reasonable expectation of privacy, given the surveillance technology that is in general public use. The heat-sensing devices used by the government are not available to the general public.

Although the Supreme Court has allowed flyovers by manned aircraft, Quick believes drones fall under the status of “not available to the general public.”

“The drone thing takes it a step further,” he said. “They are viewed as military devices that some believe were never meant to be used with civilian law enforcement.”

Other opinions

In his response to motion to dismiss filed April 24, Manbeck wrote “the use of unmanned surveillance aircraft is a non-issue in this case, because they were not used in any investigative manner to determine if a crime had been committed.”

He said he’s also been surprised by the national exposure the case has received, with reports calling Brossart “the first American arrested using an unmanned drone.”

“Yes and no,” he said. “Had they been used to investigate, I’d be less surprised.”

Instead, Manbeck said the Predator was used to make sure an armed confrontation was less likely, “to try to make it safe for both sides, both for law enforcement and the Brossarts.”

Bill Watson, who teaches aerospace law at UND, said he believes courts will follow the law established for manned aircrafts.

“I don’t see this as groundbreaking,” he said. “They aren’t doing anything that any other airplane would do. If they are in navigable airspace, there’s no reason the case law shouldn’t apply. If the courts find there is some significant difference between manned and unmanned, they wouldn’t follow the precedent.”

Current standards

California v. Ciraolo, a 1986 case, said an aerial viewing of a backyard didn’t violate the Fourth Amendment. Florida v. Riley, a 1989 case, said it wasn’t necessary to have a warrant to view individual property from public airspace.

Watson said generally, airplanes are allowed over 1,000 feet in what is considered public airspace. Helicopters have a little wiggle room since they are often on predetermined flight paths that sometimes allow for lower altitudes.

Watson said believes public sentiment, not case law, will determine how the unmanned aircrafts will be used by law enforcement.

“What do the people want and what would they tolerate?” he said. “I don’t foresee people wanting to look up everywhere they go and see and eye in the sky. That’s not going to be allowed to happen.”

Quick doesn’t believe this case will set a new foundation for rulings on drones either, perhaps surprising given his Fourth Amendment argument.

“There’s always an opportunity,” he said. “Most courts will rule on the narrowest possible grounds. They don’t tackle wide constitutional issues.”

Chris Bieri writes for the Grand Forks Herald.

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