In re Application of U.S. for an Order Authorizing Small Unmanned Aircraft Sys. Surveillance of Private Prop.

637 F.Supp.3d 343

In the MATTER OF the Application of the UNITED STATES of America for an Order Authorizing Small Unmanned Aircraft System Surveillance of Private Property

No. 5:22-MJ-02005-RN

United States District Court, E.D. North Carolina, Western Division

Signed October 26, 2022

Nicholas J. Hartigan, Assistant US Attorney, United States Attorney's Office, Raleigh, NC, for United States of America.

Memorandum Opinion

Robert T. Numbers, II, United States Magistrate Judge

The United States seeks permission to conduct remote surveillance of two properties —both of which contain a home—using a small, unmanned aircraft system, a device better known as a drone. Although the application's supporting affidavit contains enough evidence to establish probable cause, the United States asks this court to authorize the search through an All Writs Act order rather than a warrant.

But the All Writs Act is the wrong tool for the job. The Act enables courts to issue orders to effectuate existing search warrants, but it cannot provide independent authority to search private property—especially when the search seriously implicates Fourth Amendment interests. Thus, the court denies the United States' application.

I. Background

The United States believes that certain individuals are engaged in a sophisticated operation to import, possess, and distribute illegal drugs. Application at 3-4. The drug distribution operation allegedly has two primary locations, both in Eastern North Carolina. Id. at 2. The first, which the United States believes to be a "trap house,"¹ contains a residence that is not clearly visible from the street. Affidavit at 7, 36. It has a dirt driveway, a screened-in porch, a shed, and a barn. Id. at 13. The residence on the second property, an alleged "stash house,"² is closer to the street, but law enforcement agents cannot drive by it without garnering suspicion. Id. at 7, 37. It, too, has a screened-in porch. Id. at 13.

Law enforcement agents have used a panoply of investigatory tools to try to learn more about the suspects' activities. Among these are: confidential sources and undercover agents; cooperating defendants; traditional physical surveillance (including GPS and phone monitoring); geo-location data; pole cameras; pen registers; and toll records.

While these methods have yielded some information, the United States believes it now needs to use more advanced investigatory methods. Id. at 28. It explains that, among other problems, the suspects "engage in counter surveillance techniques" that make traditional methods of investigation less effective. Id. at 37. Further, law enforcement believes that executing a search warrant at the two properties would be premature and "could compromise the investigation" altogether. Id. at 44.

Enter the drone. The United States contends that, to meaningfully advance its investigation, it needs to record the "visual, non-verbal conduct and activities" near the homes on both properties using a drone. Application at 4. The United States claims that the drone footage will uncover evidence about the nature and scope of the drug ring as well as the identities of its participants and accomplices. Id. To gather this information, the United States requests an order authorizing drone surveillance of the properties for 30 days. Id. at 5.

The United States' application refers to Rule 41(b) of the Federal Rules of Criminal Procedure as well as the All Writs Act. Id. at 1. Both the United States' application and its supporting affidavit repeatedly mention that there is "probable cause" to allow drone surveillance. In almost all respects, the application mirrors that of a warrant. And just last month, a North Carolina Superior Court judge issued a warrant allowing the local Sheriff's Office to use a drone to surveil the curtilage of the alleged trap house.³ Id. at 52. But the United States does not ask this court to follow suit; it explicitly seeks an order—not a warrant—authorizing its surveillance operation.

II. Discussion

The All Writs Act allows courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a). In the context of law enforcement searches, the Act allows courts to effectuate already existent orders or warrants. See, e.g., United States v. N.Y. Tel. Co., 434 U.S. 159, 172, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977) ("This Court has repeatedly recognized the power of a federal court to issue such commands under the All Writs Act as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained[.]"). The Act is routinely invoked to require nonparty companies to disclose stored information related to a valid warrant or to assist in its implementation. See, e.g., id. at 176, 98 S.Ct. 364; United States v. X, 601 F. Supp. 1039, 1042-43 (D. Md. 1984); United States v. Doe, 537 F. Supp. 838, 840 (E.D.N.Y. 1982). In short, the Act is "a gap-filling measure" that helps courts and law enforcement ensure that their goals are not frustrated. In re United States ex rel. an Order Authorizing Disclosure of Location Info. of a Specified Wireless Tel., 849 F. Supp. 2d 526, 580 (D. Md. 2011) (hereinafter In re Order Authorizing Disclosure).

Courts consider four elements when determining whether they may issue an order under the All Writs Act. Id. First, they query whether any other federal law governs the request. Id. If so, an order under the All Writs Act is inappropriate. Id. If no other law is on point, courts then consider whether the proposed authorization raises any constitutional issues. Id. at 580-81. Should none arise, courts turn to the third factor: whether the order sought under the Act would supplement an existing order. Id. at 581. Finally, if all other elements are satisfied, courts determine whether the government has met its burden of showing that "exceptional circumstances" warrant the use of the Act. Id.

A. Applicable Federal Law

In reviewing an application for an All Writs Act order, courts must first determine whether it is necessary to rely on the Act's broad grant of authority. When another federal law could get the job done, the Act does not apply. See, e.g., Pa. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 43, 106 S.Ct. 355, 88 L.Ed.2d 189 (1985) ("Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling."). Thus, courts most often invoke the Act to supplement existing orders, not to create standalone authority for law enforcement actions. See id. at 40, 106 S.Ct. 355; N.Y. Tel. Co., 434 U.S. at 172, 98 S.Ct. 364.

Federal Rule of Criminal Procedure 41 trumps the All Writs Act when the government seeks to conduct a search. In re Order Authorizing Disclosure, 849 F. Supp. 2d at 580. That rule allows the court to issue a warrant authorizing the United States' proposed search. Fed. R. Crim. P. 41(d). The All Writs Act allows the court to issue orders that supplement—not replace —a Rule 41 warrant. See N.Y. Tel. Co., 434 U.S. at 172, 98 S.Ct. 364; Pa. Bureau of Corr., 474 U.S. at 43, 106 S.Ct. 355.

But the United States does not seek to use the All Writs Act to supplement an existing warrant by gathering information or forcing compliance from a third party. Instead, it asks the court to invoke the Act to give it something that's seemingly functionally identical to a search warrant. See Application at 4. But, if the United States believes that the court's blessing is necessary to conduct its drone surveillance operation, the Act cannot provide that standalone authority—the court may only proceed under Rule 41. See, e.g., In re Order Authorizing Disclosure, 849 F. Supp. 2d at 580 ("Rule 41 establishes procedures for all search warrants not excepted by other statutes."). An order under the All Writs Act, then, is improper.

B. Constitutional Concerns

Courts next consider whether the proposed order raises any constitutional concerns. See In re Order Authorizing Disclosure, 849 F. Supp. 2d at 580-81; Mt. Valley Pipeline, LLC v. Acres of Land, 529 F. Supp. 3d 563, 567 (W.D. Va. 2021) (citation omitted); United States v. X, 601 F. Supp. at 1043 (finding that an order under the All Writs Act was permissible to effectuate an arrest warrant where no Fourth Amendment rights were implicated). Because the United States wishes to surveil private property in search of incriminating evidence, individuals' Fourth Amendment rights could be implicated. And the All Writs Act "does not grant the Court an unbridled inherent power to infringe on an individual's privacy rights, outside of the governing structure of the Fourth Amendment." In re Order Authorizing Disclosure, 849 F. Supp. 2d at 579.

The Fourth Amendment protects individuals' right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" U.S. Const. amend. IV. In the context of warrantless searches—such as the one at issue here—the Fourth Amendment has spawned two lines of cases. The first line, best captured by Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), focuses on "people, not places[.]" Id. at 351, 88 S.Ct. 507. Under this doctrine, a warrantless search runs afoul the Fourth Amendment if it violates an individual's "reasonable expectation of privacy." Id. at 360, 88 S.Ct. 507 (Harlan, J., concurring).

The second line of cases—the roots of which trace to the common law-coexists with Katz. United States v. Jones, 565 U.S. 400, 406-08, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). This doctrine grounds Fourth Amendment protections in "a particular concern for government trespass upon the areas [the Amendment] enumerates." Id. at 406, 132 S.Ct. 945. And the Supreme Court has stressed that, while Katz supplemented the constitutional protections rooted in the common law, it has not...