What a Cattle-Theft Case Could Mean for U.S. Law Enforcement Use of Drones

The Citizen's Guide to the Future
May 4 2012 5:43 PM

What a Cattle-Theft Case Could Mean for U.S. Law Enforcement Use of Drones

It was a strange and historic moment when North Dakota police decided to call in an unmanned Predator surveillance drone over a farmers’ dispute about animals. Now a court case in the small town of Lakota has become the primary testing ground for the use of unmanned aircraft by law enforcement across America.

Ryan Gallagher Ryan Gallagher

Ryan Gallagher is a journalist who reports on surveillance, security, and civil liberties.

The odd episode began in June last year when six cows wandered onto land owned by Rodney Brossart, who declined to return them to their owner until he was paid for the feed the cattle had consumed.

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When police tried to get involved, Brossart’s family—who “prefer to limit their contact with governmental actors,” according to a court brief—allegedly chased the officers away with guns. Ultimately, a military-grade Department of Homeland Security-owned unmanned drone was deployed (for reasons that are disputed),  and a local SWAT team called in. Brossart became the first American to be arrested with the assistance of a drone—and the six cows were returned.

Now Brossart wants the case against him—which centers on allegations of cattle theft—dismissed. Court documents (see below) show that he and five of his family members are alleging “outrageous governmental conduct, unlawful surveillance, illegal seizures and searches, unconstitutional application of North Dakota law, vindictive prosecution, and other statutory and constitutional injury.”

In a brief authored by Brossart’s attorney, Bruce Quick, one officer is accused of behaving like a “water-boarding interrogator” for using a Taser on Brossart while “violently convulsed in a puddle of water.” Quick also describes how a “commando team” of police searched the Brossarts’ ranch for the cows and “occupied” the farm without a warrant.

The most interesting element, however, is the use of the so-called “spy plane” to conduct surveillance.

Quick is arguing that “the warrantless use of unmanned surveillance aircraft” was unlawful on Fourth Amendment grounds. He points to the United States Supreme Court judgment in Kyllo v. United States, which held that obtaining information by sense-enhancing technology not available for general public will be subject to constitutional protections against unreasonable searches and seizures.

The police “dispatched unmanned aerial surveillance to spy on the Brossart family, and to collect ‘intelligence’ data,” Quick writes. “The unmanned aircraft was dispatched without judicial approval or a warrant. The unmanned aircraft was not visible or detectable by ordinary observation. Armed with the intelligence data from the unmanned craft and a search warrant, commando-styled police officers infiltrated the Brossart ranch, searching all buildings, tree rows, shelter belts, vehicles, and equipment.”

But North Dakota is playing down the role of the drone, claiming it is insignificant. In a response to Brossart’s motion to dismiss, Nelson County State’s Attorney Douglas Manbeck argues, “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. There is, furthermore, no existing case law that bars their use in investigating crimes.”

Predators, which can fly at heights of up to 25,000 feet for 20 hours at a time, are most commonly associated with controversial military actions in countries including Afghanistan, Pakistan and Yemen—but are also used domestically for border surveillance by the DHS’s Customs and Border Protection agency at a cost of about $3,000 per hour. The SWAT team that called in the drone used in the Brossart arrest, based out of Grand Forks, N.D., says that it has had an agreement with the DHS to use Predators for three years and called one in this case for safety reasons.

Currently, about 300 law enforcement agencies and research institutions have temporary licenses to fly drones, according to information published in April by the Electronic Frontier Foundation. How they can be used by police in the future could in part be decided by a Lakota court jury in June, when the Brossart trial is scheduled to begin.

Below, you'll find court documents related to the case.

Future Tense is a partnership of SlateNew America, and Arizona State University.

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