- The Washington Times - Thursday, July 31, 2014

Two drones sit idle under lock and key in the office of the Wise County’s sheriff.

The 45-deputy agency, which is responsible for serving warrants and keeping the peace in a rural corner of southwestern Virginia, purchased the small remote-controlled “quad copters” in February, but the $400 apiece gadgets remain grounded as part of a temporary moratorium on drone use in the state.

Through some legal maneuvering and a bit of wordsmithing, law enforcement in Wise County hopes to get those drones in the sky.

“There are so many times that we could possibly have a use for it,” said Sheriff Ronnie Oakes, going on to describe how hikers have gone missing in the county’s mountainous and heavily wooded terrain, and deputies have to occasionally raid local drug dens and meth labs. “Our intention was to use them for a lost person or to search for a marijuana patch on national forest land or something of that nature.”

Virginia lawmakers are expected to come back to the drawing board in next year’s legislative session to debate drone use. But for now the standing moratorium bans government agencies from flying drones except in a handful of circumstances: in searches for missing children or seniors, for research purposes by universities and by the Virginia National Guard.

At least 13 states, including Virginia, have enacted legislation defining parameters for drone use. North Carolina has also adopted a temporary drone moratorium. Other states have typically required law enforcement agencies to obtain warrants before using drones but outline emergency circumstances under which use would be legal without a warrant.

The restrictions are a response to public anxiety about the surveillance capabilities of the devices, which have become cheaper and more accessible and have shifted from being primarily military technology to a potential domestic product that could be used in commercial trades from agriculture to real estate.

While the Federal Aviation Administration has approved some use of the unregulated devices by law enforcement, it still considers the commercial use of drones to be illegal.

The Virginia General Assembly in 2013 approved the state’s drone moratorium to give legislators some breathing room to study the issue before drafting any future regulations.

Ahead of the July 2015 sunset of the state’s moratorium, Wise County’s commonwealth’s attorney has asked the state’s attorney general if one more exception could be made to allow law enforcement agencies to use drones while operating under an approved search warrant.

“When an officer has a legitimate reason to search a property or reason through a search warrant, you really can use any reasonable means necessary to facilitate that search,” Wise County Commonwealth’s Attorney Ron Elkins said. “It’s no different from taking a photo while working a search warrant — it’s just a little higher up.”

In a July 10 letter requesting a formal opinion by Attorney General Mark R. Herring, Mr. Elkins notes that the moratorium approved by the general assembly forbids the use of “an unmanned aircraft system.” He argues that use of a single drone “according to the parameters of a specific search warrant” would not count as the use of a system as banned by lawmakers. Rather, he reasons that the use of a squadron of drones used to regularly catch motorists who speed or run red lights would be more akin to a “system.”

“My goal is for clarification. If he says ‘no,’ fine. If he says ‘yes,’ fine,” Mr. Elkins said. “I’m not trying to cause a stink or stir up drama. I don’t want to pass on a potentially beneficial tool.”

Michael Kelly, a spokesman for the attorney general, said requests for formal opinions are considered attorney-client privilege, and he could not comment on the matter ahead of an opinion being issued.

Virginia’s American Civil Liberties Union sees Mr. Elkins‘ request as an attempt to sidestep the intentions of residents and lawmakers.

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