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With new law, police in Minnesota increasingly flying drones without a search warrant

By Mike Kaszuba

Four years ago, legislators and civil liberties advocates in Minnesota hailed a new state law that for the first time regulated the emerging use of drones by law enforcement agencies.

“I think we have a bill that everyone kind of agrees with,” Sen. Warren Limmer, a Republican representing suburban Maple Grove and a chief proponent of the legislation, told a state Senate panel in February 2020.  A top official with the American Civil Liberties Union-MN (ACLU-MN), a leading civil liberties organization in Minnesota, added that her organization supported the law in order to set “guidelines and guardrails” for drone use by police.

But the legislation, in a move that left some officials uneasy, also did something else:  It allowed law enforcement to use drones without a search warrant in nine specific instances – including over a public event “where there is a heightened risk to the safety of participants or bystanders” and “to conduct a threat assessment in anticipation of a specific event.”

Since then, some law enforcement agencies have been quick to take advantage of the exceptions, according to data reviewed by Public Record Media (PRM), a non-profit based in Saint Paul.  The data spanned three years ending in 2022, the most recent year for which it was available.

For example, police in Plymouth, a Minneapolis suburb, flew drones without a search warrant 213 times in 2021.

The PRM review also showed that police in Minnesota have used drones without a search warrant for one reason in particular:  Flying them over a public area if there is a “reasonable suspicion” of criminal activity.

In 2020, the Anoka County Sheriff’s Office used drones 40 times without a search warrant over a public area because it believed there was a reasonable suspicion of criminal activity.  In 2021, the sheriff’s office used drones 42 times for the same reason, and then 37 times in 2022.

The data, compiled annually by the Minnesota Bureau of Criminal Apprehension (BCA), provides few specifics for individual drone flights.

Two affluent Minneapolis-St.Paul suburbs also showed an increasing use of drones without a search warrant in public areas where police suspected criminal activity.

Edina police used drones 23 times for that reason in 2021, and Eagan police used them 19 times.  In 2022, Edina increased its drone usage for that reason to 41 times, and Eagan used drones 35 times for that purpose.  Woodbury, another affluent Twin Cities suburb, used drones 19 times that year for the same reason.

In 2022, the Ramsey County Sheriff’s Office used drones 37 times without a search warrant in areas where there was a reasonable suspicion of criminal activity, and 18 times over a public event where there was a heightened risk to the safety of participants or bystanders.

In 2022, Rochester police meanwhile used drones without a search warrant 15 times to conduct a threat assessment in anticipation of a specific event – the most such instances of any law enforcement agency in Minnesota that year.

In 2021, St. Cloud police used drones without a search warrant eight times over a public event where there was a heightened risk to safety, and 24 times over a public area where police said they had a reasonable suspicion of criminal activity.

Even in Champlin, a mid-sized Minneapolis suburb, police used drones without a search warrant in 2022. The city’s police used drones twice over a public event where there was thought to be a heightened risk to safety, and 10 times over a public area where police said there a reasonable suspicion of criminal activity.

The city, which did not report any drone spending in 2020 or 2021, spent $14,000 on its drone program in 2022 and flew drones 35 total times that year without a search warrant – almost the same number as Rochester, a city with five times the population.

The state data on drone usage without a search warrant does not list whether the flights resulted in any arrests.  The data also does not provide detail on what police did with the intelligence they gathered from the drone flights, though the new state law requires police to delete data collected by drones within seven days unless it is part of an active criminal probe.

A 31.7 percent  increase in one year

Since the legislation became law, the overall use of drones by law enforcement without a search warrant has steadily risen in Minnesota.

The overall use of drones without a search warrant statewide has gone from more than 1,100 times in 2020 to more than 2,200 in 2021 – and then increased by 31.7 percent to 3,076 instances in 2022.

Similarly, the use of drones statewide without a search warrant in public areas if police believed there was a reasonable suspicion of criminal activity has also risen – from 185 instances in 2020, to 257 in 2021 and 353 in 2022.

Four years after the new law was passed, one former state legislator who was involved with shaping the law said it may have created too many loopholes for law enforcement.

“It was a big fight, I know,” recalled John Lesch, a DFLer from St. Paul who took an early interest in drone usage by law enforcement.  “It specifically centered around those exceptions.”  He said the exception allowing law enforcement to use drones for surveillance of public gatherings was particularly troublesome.  “That one really stuck out to me,” he said.

“It was pretty frustrating,” Lesch, a criminal defense lawyer, said of the nine exceptions.  “I saw that as a pretty big civil liberties concern.

“I still get torqued about it,” Lesch recently told PRM.

While the use of drones over public events where there is thought to be a “heightened risk” to safety has been relatively minimal, it has risen.  Law enforcement statewide used drones 12 times for such instances in 2020, 20 times in 2021 and 47 times in 2022.

The new law does address the use of drones by police over public protests or demonstrations – but gives police some leeway.

While the law in general prohibits police from flying drones over public demonstrations or protests to collect data, it allows police to do so if the flight is “expressly authorized by a warrant or an exception” granted to police under the law.

Four years ago, as the legislation wound through hearings at the State Capitol, both the Minnesota Sheriff’s Association and the ACLU-MN played large roles in crafting the law, according to those who witnessed the lobbying.

Sheriff’s Association was “pushing hard” for exceptions

“It was the sheriff’s association that was pushing hard” for the law, and the exceptions, said Lesch.  “They [got] the language in that they [wanted].”

Tom Wells, the deputy director of the sheriff’s association, told PRM that the nine exceptions were justified.  “These exception[s] are very reasonable for public safety reasons,” he said.

During hearings in the spring of 2020, an ACLU-MN official acknowledged that the organization had wanted a more stringent law but ultimately endorsed the proposed legislation..

“We’ve agreed to compromise,” Julia Decker, the policy director for ACLU-MN, told state senators at a state Senate hearing.

“The ACLU of Minnesota supports this bill while remaining wary – and watchful -- over the proliferation of new and ever more powerful technologies that present additional threats to privacy rights,” Decker added.

But “the ACLU started out in [quite] a different position on this issue, with more stringent requirements for law enforcement, and fewer exceptions from getting a warrant,” she added.

As the legislation was being considered, the ACLU-MN had issued a blunt warning about the problems drone usage by law enforcement could pose.

An ACLU-MN flyer said that “when deployed without proper regulation, drones equipped with facial recognition software, infrared technology and speakers capable of monitoring personal conversations can cause unprecedented invasions of our privacy rights.

“Interconnected drones could enable mass tracking of vehicles and people across wide areas,” the flyer added.  “Tiny drones could go completely unnoticed while peering into the window of a home or a place of worship.”

In recent comments to PRM, a spokesperson for the ACLU-MN said the four-year-old law did give police “a lot of leeway” to use drones without a search warrant, but the overall legislation brought much-needed regulation to the use of drones by police.

The 2020 state law generally prohibited the use of drones by law enforcement without a search warrant – except for the nine instances.  In addition, police were prohibited from deploying a drone with facial recognition or other biometric-matching technology unless they had a specific warrant.  Police were also barred by the new law from equipping a drone with weapons.

The new law required police to document every time they used a drone, and also allow public comment before a law enforcement agency bought or used a drone.  Under the law, police were also now required to file an annual report on drone use.

“The 2020 law has many exceptions that give a lot of leeway and discretion to police when using drones,” ACLU-MN spokesperson Munira Mohamed told PRM.  “The ACLU of MN will continue to push for stronger restrictions.

“That being said[,] we do believe the current law is a vast improvement on public safety” for Minnesota.

Lesch agreed, calling the use of drones by law enforcement before the legislation was enacted as being akin to “the Wild West – there was no [regulation] whatsoever.”

Early attempts to limit drones to search and rescue

Nearly a decade ago, as police in Minnesota began flying drones, law enforcement officials had informally pledged that drones would only be used on a limited basis.

At an early 2016 drone demonstration by the Hennepin County Sheriff’s Office, local officials attending the event said they hoped drone usage would be tightly defined.  The sheriff’s office, at the time, said its drone policy restricted use to search and rescue missions, and prohibited using drones for surveillance activities or for targeting a person based solely on characteristics such as “race, ethnicity, national origin, religion, disability, gender or sexual orientation.”

Hennepin County’s drone demonstration was witnessed by, among others, Rep. Peggy Scott, (R-Andover), who at the time chaired the state House Civil Law and Data Practices Committee.

“I think they could be a good tool for locating missing persons/abducted children” or for locating assailants, Scott, now an assistant House minority leader, told PRM at the time.  “They should not be used at peaceful gatherings for common surveillance.”

Data provided by state officials show that many drone flights by police without a search warrant are in fact conducted in the “aftermath of an emergency situation”, a use officials initially envisioned would be the focus of the flights.

In 2022, according to the BCA, 699 drone flights in Minnesota were in response to emergency situations.

The Minnesota State Patrol meanwhile used drones without a search warrant on 413 occasions to help reconstruct accident scenes.

The most-often use of drones by law enforcement without a search warrant?

In 2022, police used drones without a search warrant 1,328 times to fly over a public area for “officer training or public relations purposes.”

The use of drones by police comes as law enforcement is spending more money on drones, according to the BCA.

In 2022, the most recent year for which data is available, law enforcement agencies in Minnesota spent more than $646,000 on drone programs, up 69.8 percent over 2021.  The 2022 figure however was down from the more than $922,000 spent in 2020, the year the new state law passed.

St. Cloud police spent $918.99 on its drone program in 2022, according to state data, but flew drones 122 times without a search warrant.  By comparison, Minneapolis police spent $62,403 on its program that year, but only flew drones twice without a search warrant that year.


(Supporting documents for this article can be accessed by contacting Public Record Media at admin@publicrecordmedia.org, or at 651-556-1381)

 


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