- 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.

“Our view is that this request for an opinion is essentially a request to gut the law,” said Claire Guthrie Gastanaga, executive director of the ACLU of Virginia.

She worries that if the attorney general approves this exemption for Wise County, police agencies all over the state will be clamoring for their own drones.

“Before they buy drones they ought to have the consent of the governed and some accountability for their use,” Ms. Gastanaga said.

It’s unclear if any Virginia law enforcement agencies have used drones under the search and rescue exemption allowed by the state since there is no tracking requirement under current law, Ms. Gastanaga said.

The Wise County Sheriff’s two drones are kept under lock and key and haven’t left the ground other than in a few test flights near the office, Sheriff Oakes said.

Police departments in Northern Virginia — including Prince William, Fairfax and Arlington counties and the city of Alexandria — as well as the Virginia State Police all say they don’t own drones.

Wise County officials say they understand the concern people might have about law enforcement overstepping their bounds with drones.

“I’m not a proponent of drones flying around keeping an eye on us,” Mr. Elkins said. “I think that’s terrifying.”

But Sheriff Oakes said he envisions using drones in conjunction with only a small number of search warrants, most likely in drug raids. Recent statistics released by the agency show deputies served 17 felony warrants and 42 misdemeanor warrants during one week in July. The sheriff says the occasion to use a drone in a drug raid might arise every couple of months.

In those cases, a drone could spot escape routes, alert officers of the number of people or any guard dogs on the property or booby traps that officers have at times located around marijuana grow sites.

“A drone could get a bird’s-eye view without risking safety,” he said.

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