Baltimore PD’s Aerial Investigative Research program (AIR) does not violate the reasonable expectation of privacy of Baltimore residents, and denial of the preliminary injunction is affirmed on appeal. Leaders of a Beautiful Struggle v. Baltimore Police Dep’t, 2020 U.S. App. LEXIS 35070 (4th Cir. Nov. 5, 2020):
We conclude initially that the AIR program does not violate a reasonable expectation of privacy. This test has both a subjective and an objective component. The court must first ask whether an individual actually expects that something will be kept private from surveillance and then whether society is prepared to recognize that expectation as reasonable. Carpenter, 138 S. Ct. at 2213. “Although no single rubric definitively resolves which expectations of privacy are entitled to protection, the analysis is informed by historical understandings ‘of what was deemed an unreasonable search and seizure when [the Fourth Amendment] was adopted.'” Id. at 2213-14 (quoting Carroll v. United States, 267 U.S. 132, 149 (1925)). The Court recognized two “guideposts” to assist the inquiry. First, a court should ask whether the government action arbitrarily invades the privacies of life. Id. at 2214. Second, courts should be wary of “a too permeating police surveillance.” Id. (quoting United States v. Di Re, 332 U.S. 581, 595 (1948)).
A cardinal rule that emerges from the Supreme Court’s caselaw is that an individual has a limited expectation of privacy in his or her public movements. “What a person knowingly exposes to the public … is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351 (1967). Thus, “[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” United States v. Knotts, 460 U.S. 276, 281 (1983). In light of that rule, the Supreme Court has found no Fourth Amendment violation when the police used a tracking device placed inside a container to track an automobile on public streets. Id. at 285.
In United States v. Jones, 565 U.S. 400 (2012), five Justices qualified this rule through separate opinions by Justices Alito and Sotomayor. These two concurring opinions reasoned that long-term surveillance using GPS tracking violated a reasonable expectation of privacy. Id. at 414-15 (Sotomayor, J., concurring); id. at 430-31 (Alito, J., concurring in the judgment) (distinguishing between a long-term surveillance using GPS for twenty-eight days, which he thought was impermissible, and a shorter-term surveillance of public movements).
The lesson from these cases is that short-term surveillance of an individual’s public movements is less likely to violate a reasonable expectation of privacy. And under that rule, the AIR program passes muster. As Judge Bennett explained, the built-in limitations of the AIR program mean that it only enables the short-term tracking of public movements. First, the AIR program’s cameras are only able to track outdoor movements. They cannot track an individual who enters a building, and analysts cannot tell if the person leaving the building is the same person who entered it. Second, AIR’s surveillance planes only fly during twelve daylight hours. Because they do not fly at night, AIR surveillance cannot be used to track individuals from day-to-day.
In response, plaintiffs object that the police may be able to use preexisting surveillance tools, like security cameras and license plate readers, in conjunction with AIR photographs to track individuals from day to day. But plaintiffs do not challenge these existing tools—only the AIR program in particular. And for good reason. The Supreme Court specifically stated that traditional surveillance tools, specifically security cameras, remain lawful in light of Carpenter, 138 S. Ct. at 2220, and we are not at liberty to revisit that conclusion.
Further, the Supreme Court has already held that various types of aerial surveillance do not invade a reasonable expectation of privacy. In California v. Ciraolo, 476 U.S. 207 (1986), the government flying a plane a mere one thousand feet over an individual’s home to photograph items within a fenced-in backyard did not violate a reasonable expectation of privacy. Id. at 209. The Court held that this intrusive surveillance was permissible as long as the surveillance plane remained “within public navigable airspace” and the surveillance was done “in a physically nonintrusive manner.” Id. at 213. Both of those requirements are satisfied by AIR. Indeed, the AIR cameras cannot photograph an individual item within a backyard—the program is decidedly less intrusive than the surveillance in Ciraolo.
Similarly, in Dow Chemical Co. v. United States, 476 U.S. 227 (1986), the Supreme Court found no invasion of a reasonable expectation of privacy when the government repeatedly flew a plane over a factory and photographed items as small as one half inch in diameter. Id. at 239. In this case, AIR does not use cameras capable of photographing objects that small. Not even close. Individuals are just dots, and analysts cannot identify a person’s race or sex from an AIR photograph. And like the surveillance in that case, AIR captures no “intimate details” of the sort that might implicate Fourth Amendment protections. Id. at 238.
Finally, in Florida v. Riley, 488 U.S. 445 (1989), the Court again upheld surveillance more intrusive than that in AIR. There, government agents circled four hundred feet above a home in a helicopter to look into a greenhouse partially within the home’s curtilage. Id. at 450. AIR involves no surveillance of an individual’s home or curtilage, and its aerial planes do not harass individual homeowners by hovering closely above their homes.
In light of these precedents, we cannot hold that AIR violates a reasonable expectation of privacy. AIR is merely a tool used to track short-term movements in public, where the expectation of privacy is lessened. Such an activity is lawful in light of Knotts and Jones. And the specific tool which the BPD will use for the surveillance, aerial photography, has been sanctioned by the Supreme Court in several cases. See also Brandon Nagy, Why They Can Watch You: Assessing the Constitutionality of Warrantless Unmanned Aerial Surveillance by Law Enforcement, 29 Berkeley. Tech. L.J. 135, 155 (2014) (“[T]he Supreme Court’s guidance, as derived from Riley, Dow, and Ciraolo, appears to be that aerial surveillance, whether by naked eye or assisted by some technology, conducted from lawful airspace that is traversed by aircraft with sufficient regularity, and that does not interfere with the victim’s use of her property, is not a Fourth Amendment search and does not require a warrant.”). Unlike the aerial surveillance previously upheld, AIR photographs cannot even be used to identify specific items within backyards or a person’s identifying characteristics.
The Supreme Court’s decision in Carpenter does not require a different result. …
