Monday, June 17, 2013

Rick Perry, drones and an odd endorsement of the exclusionary rule

Regular readers are aware that Grits thought HB 912, known as Texas' "drone bill," contained too many practical flaws for me to support. But the bill did place significant restrictions on use of drones by law enforcement, which is far and away the most significant aspect of the legislation. So, when can law enforcement - or people under contract with or acting on the direction or authority of law enforcement - utilize drones under HB 912? Here are the circumstance under which Texas law enforcement can use aerial drones beginning September 1st.
  • Pursuant to a valid search warrant,
  • In immediate pursuit of a fugitive felon,
  • To document a felony crime scene,
  • To document crime scenes involving human fatalities, fatal motor vehicle accidents, and any motor vehicle accident on a state highway or federal interstate,
  • To search for a missing person,
  • When conducting a "high-risk tactical operation that poses a threat to human life,"
  • Surveying the scene of a catastrophe for purposes of determining whether an emergency should be declared,
  • To preserve public safety, protecting property, or surveying damage or contamination during a lawfully declared state of emergency,
  • Within 25 miles of the Mexican border, and
  • With consent of the property owner.
The Department of Public Safety has been charged with developing administrative rules for use of drones by law enforcement based on the strictures in the bill.  Bizarrely, in an era when tuff-on-crime demagogues have spent decades eviscerating the exclusionary rule, the drone bill contains the most extreme version of one your correspondent has ever seen a legislative body endorse in my lifetime. Under the statute, video collected by law enforcement outside the above circumstances (or even drone video taken by civilians in violation of the statute):
(1) may not be used as evidence in any criminal or juvenile proceeding, civil action, or administrative proceeding;
(2) is not subject to disclosure, inspection, or copying under the Public Information Act; and
(3) is not subject to discovery, subpoena, or other means of legal compulsion for its release.
Unless it falls under one of the listed exceptions (which admittedly are myriad), the only thing drone video can be used for in court will be to prove up Class C misdemeanor charges of improper drone use. That's true even if the video happened to capture images of a murder, rape or kidnapping.

Honestly, I thought that'd be a deal killer. It's flat out stunning that Gov. Rick Perry endorsed such a sweeping exclusionary rule when, in the past, he's threatened to veto legislation (e.g., Texas' eyewitness ID legislation from 2011) if the exclusionary rule was applied. One imagines this was a one-off and not an indicator the Governor has now embraced the exclusionary rule as a valid means to regulate illicit law enforcement behavior. We can hope, though.

Grits doesn't expect ever to see a single prosecution under the criminal portion of the drone statute, nor do I anticipate anyone will successfully sue over tort violations in the bill (the amounts are too small to make it worth an attorney's while). In the end, restrictions on police and exclusion of video evidence in the courts will be the biggest effect of this odd piece of legislation.

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