Does Virginia's 2013 drone moratorium stop a sheriff from flying a single camera-equipped quad copter under a search warrant?

Plain-English summary

The Wise County Commonwealth's Attorney asked a question about the 2013 General Assembly's temporary moratorium on law-enforcement use of drones. Chapter 755 of the 2013 Acts (uncodified) said that no state or local criminal-law-enforcement department could use an "unmanned aircraft system" before July 1, 2015, with narrow humanitarian exceptions. Wise County's sheriff had small quad copters with cameras and 20-minute flight times, controlled by a human operator. Could the sheriff fly one of those drones to gather evidence under a search warrant?

The question hung on whether a single remotely controlled quad copter counted as an "unmanned aircraft system." If "system" implied multiple aircraft or a large integrated network, perhaps a single drone was outside the moratorium. AG Herring concluded it was not.

The legislative intent was clearly to impose a temporary moratorium on drone use by law enforcement. Chapter 755's text and the humanitarian exceptions list (Amber Alerts, Senior Alerts, Blue Alerts, search and rescue for immediate danger, and training for those uses) only make sense if the legislature was concerned about evidence-gathering with drones. Interpreting "unmanned aircraft system" narrowly to exempt single quad copters would gut the moratorium.

The technical term has an accepted industry meaning. Federal law (FAA Modernization and Reform Act of 2012, § 331(9)) defines "unmanned aircraft system" as "an unmanned aircraft and associated elements (including communication links and the components that control the unmanned aircraft) that are required for the pilot in command to operate safely and efficiently in the national airspace system." The FAA's own regulatory definition (FAA Order 8900.1) is materially the same. The Congressional Budget Office, the Department of Defense, multiple academic commentators, and at least two other states (Idaho, North Carolina) all use fundamentally identical definitions. Virginia's 2013 General Assembly used "unmanned aircraft system" in the prevailing industry sense.

Statutory construction supports the technical definition. "Technical terms or terms of art in a statute have their technical meaning, absent legislative intent to the contrary." Reading "unmanned aircraft system" against its commonly understood definition produces a coherent statute and matches the legislative concern about drones. Reading it more narrowly produces an absurd result. The Virginia Supreme Court has consistently said statutes are read as a whole to give effect to legislative intent.

A single remotely controlled quad copter fits the definition. The aircraft itself is the "unmanned aircraft." Combined with the handheld controller and the associated equipment used to operate it remotely, it forms a "system" in the dictionary sense ("regularly interacting or independent group of items forming a unified whole") as well as in the industry sense. The federal definitions confirm that "system" can be one aircraft plus its supporting equipment.

Bottom line for Wise County: the moratorium covered the planned use. Until July 1, 2015 the sheriff could not use the quad copter to gather evidence under a search warrant, even though probable cause had been found and a warrant had been issued. The humanitarian exceptions did not include evidence-gathering for warrants. Other questions (Fourth Amendment privacy, federal aviation preemption) were not addressed.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The 2013 moratorium expired by its own terms on July 1, 2015. The General Assembly has since enacted permanent rules governing law-enforcement drone use, codified primarily in Va. Code § 19.2-60.1 and related provisions, that generally require a search warrant before law enforcement gathers evidence with a drone (with various exceptions). The FAA's drone regulations under 14 C.F.R. Part 107 also affect what state and local agencies can do operationally. Anyone analyzing a current drone-evidence question should consult the current Code provisions and federal regulations.

Common questions

What was the 2013 moratorium designed to do?
Give the General Assembly time to study drone use by law enforcement and develop a permanent framework. Virginia was one of the first states to enact a temporary halt. The moratorium expired July 1, 2015, and was replaced by codified rules.

What did the humanitarian exceptions cover?
Three alert systems (Amber Alert for missing children, Senior Alert for missing adults at risk, Blue Alert for officer-attacker information), search-and-rescue missions where the drone was "necessary to alleviate an immediate danger," and training for those purposes. Routine evidence-gathering was not on the list.

Why did the AG go to industry definitions instead of a dictionary?
Because "unmanned aircraft system" is a technical term in aviation and drone industries. The accepted rule of construction is that technical terms get their technical meaning when used in legislation about the technical field, unless the legislature signals otherwise. Here, the field is law-enforcement aviation, and the term has a settled meaning.

What about commercial drone use during the moratorium?
The moratorium applied only to state and local government criminal-law-enforcement agencies. Commercial and recreational drone use was governed by federal FAA rules, not by Chapter 755.

Does this mean a sheriff couldn't even fly a drone with the owner's consent?
The moratorium did not have a consent exception. By its plain text, it barred any law-enforcement use of an unmanned aircraft system other than the listed humanitarian purposes. Whether owner consent would have been an exception under some other constitutional or statutory doctrine was not addressed.

What is the difference between "unmanned aircraft" and "unmanned aircraft system"?
"Unmanned aircraft" refers to the aircraft itself (the drone). "Unmanned aircraft system" includes the aircraft plus the supporting equipment, communications links, ground stations, and human operator interface required to operate it. The opinion treats a single quad copter plus its remote control as a "system."

What changed when the moratorium expired in 2015?
The 2015 General Assembly enacted Va. Code § 19.2-60.1, which requires a search warrant for law-enforcement evidence-gathering with drones, with exceptions for the humanitarian uses already in the moratorium plus some additional public-safety scenarios. The framework has been amended several times since.

Background and statutory framework

• 2013 Va. Acts ch. 755 (uncodified): Temporary moratorium on state and local law-enforcement use of unmanned aircraft systems before July 1, 2015. Humanitarian exceptions for Amber, Senior, and Blue Alerts and search and rescue.
• Va. Code § 15.2-836: Definition of "department of law enforcement" for purposes of localities.
• Va. Code § 19.2-56.2: Procedures for warrants for tracking devices; excludes image capture from the definition of "use of a tracking device."
• FAA Modernization and Reform Act of 2012, Pub. L. 112-95, § 331(9): Federal definition of "unmanned aircraft system."
• FAA Order 8900.1: FAA operational definition.

The interpretive moves:

• Technical terms take technical meaning when used in a statute about the technical field.
• Federal, agency, multi-state, and academic usage of "unmanned aircraft system" all align.
• Reading "system" to require multiple aircraft would produce an absurd result.
• A single quad copter plus its remote control is a "system" in both ordinary and technical senses.
• Humanitarian exceptions are narrowly enumerated and do not include warrant-based evidence gathering.

Citations

• 2013 Va. Acts ch. 755
• Va. Code § 15.2-836
• Va. Code § 19.2-56.2
• FAA Modernization and Reform Act of 2012, Pub. L. 112-95, § 331(9)
• FAA Order 8900.1, Vol. 16, Ch. 1, § 2
• 49 C.F.R. § 830.2
• Idaho Code Ann. § 21-213(1)(a)
• 2013 N.C. Sess. Laws 360, § 7.16(2)(2)
• N.D. Cent. Code § 54-60-2
• Tex. Gov't Code Ann. § 423.002
• Elec. Frontier Fdn v. Dep't of Homeland Sec., 2014 U.S. Dist. LEXIS 44863 (N.D. Cal. Mar. 31, 2014)
• Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 722 S.E.2d 626 (2012)
• Commonwealth v. Amerson, 281 Va. 414, 706 S.E.2d 879 (2011)
• Commonwealth v. Jones, 194 Va. 727, 74 S.E.2d 817 (1953)
• Protestant Episcopal Church v. Truro Church, 280 Va. 6, 694 S.E.2d 555 (2010)
• Sansom v. Bd. of Supvrs., 257 Va. 589, 514 S.E.2d 345 (1999)
• Dep't of Taxation v. Orange-Madison Coop. Farm Serv., 220 Va. 655, 261 S.E.2d 532 (1980)
• Nelson v. Cnty. of Henrico, 10 Va. App. 558, 393 S.E.2d 644 (1990)
• Jones v. Conwell, 227 Va. 176, 314 S.E.2d 61 (1984)
• Sutherland Statutes and Statutory Construction §§ 47:29, 47:31 (7th ed. 2007)
• CBO, Policy Options for Unmanned Aircraft Sys., Pub. No. 4083 (2011)
• DOD, Joint Pub. 3-52, Joint Airspace Control (May 20, 2010)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/14-051_Elkins.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

October 9, 2014

The Honorable Ronald K. Elkins
Commonwealth's Attorney
Wise County & City of Norton
206 East Main Street, Suite 123
Wise, Virginia 24293

Dear Mr. Elkins:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire whether the temporary prohibition against use of an "unmanned aircraft system" by state or local law enforcement departments, as set forth in Chapter 755 of the 2013 Acts of Assembly ("Chapter 755"),[1] applies to the use by law enforcement of a single unmanned aerial vehicle operating to gather evidence pursuant to a search warrant.

Response

It is my opinion, based on the accepted industry definition of an "unmanned aircraft system" and what I understand to be legislative intent, that Chapter 755, which is effective until July 1, 2015, temporarily prohibits the use of even a single remotely controlled aerial vehicle by state or local law enforcement for the purpose of gathering evidence pursuant to a search warrant. Chapter 755, however, does not prohibit the use of unmanned aircraft systems for specified humanitarian purposes.

Background

You relate that the Wise County Sheriff's Office "possesses unmanned, remote controlled quad copters equipped with cameras that can take photographic images and record video," and you indicate that these instruments "have an approximate 20-minute flight time, and require human control." You inquire whether Chapter 755 prohibits the Sheriff's Office from deploying one of these devices to gather evidence pursuant to a search warrant.[2]

Applicable Law and Discussion

In 2013, the General Assembly passed H.B. 2012 which was enacted, without codification, as Chapter 755. Chapter 755 provides, in pertinent part, as follows:

No state or local government department, agency, or instrumentality having jurisdiction over criminal law enforcement and regulatory violations, including but not limited to the Department of State Police, and no department of law enforcement as defined in § 15.2-836 of the Code of Virginia of any county, city, or town shall utilize an unmanned aircraft system before July 1, 2015.[3]

Beyond reasonable debate, the legislation evinces a legislative intent temporarily to prohibit use of this emerging technology, unmanned aircraft systems, by law enforcement. Nevertheless, it does provide several humanitarian exceptions to the prohibition. Specifically, an unmanned aerial system may be deployed when responding to an Amber Alert, a Senior Alert, or a Blue Alert, or during a search and rescue mission "where use of an unmanned aircraft system is determined to be necessary to alleviate an immediate danger to any person," or "for training exercises related to such uses."[4] None of these exceptions can be reasonably interpreted to include a search for evidence pursuant to a warrant.

As an initial matter, I note the following principles of statutory construction that guide this analysis. "When construing a statute, our primary objective is 'to ascertain and give effect to legislative intent,' as expressed by the language used in the statute."[5] Nonetheless, statutes are not to interpreted by singling out a particular word, but as a whole;[6] and, although undefined terms are to be construed according to their "plain and ordinary meaning," "courts should be guided by 'the context in which [the word or phrase] is used.'"[7] And, of particular importance, "[t]echnical terms or terms of art in a statute have their technical [meaning], absent legislative intent to the contrary, or other overriding evidence of a different meaning."[8] Similarly, "[i]n general, commercial terms in a statute related to trade or commerce have their trade or commercial meaning."[9] In an overall sense, "[s]tatutes must be construed . . . so as to reasonably and logically effectuate their intended purpose[,]"[10] while interpretations producing an absurd result are to be avoided.[11]

Your inquiry turns upon the meaning of the term "unmanned aircraft system."[12] Neither Chapter 755 nor any other Virginia statute defines the term "unmanned aircraft system." Although "unmanned aircraft system" could be construed narrowly to exempt single, particularized uses and to require regular, open-ended monitoring of unspecified targets, such an interpretation ignores the commonly accepted technical definition of an "unmanned aircraft system" and federal usage of that term. Further, it would circumvent the clear intent of the General Assembly, which is to temporarily limit the use of an unmanned aircraft to the humanitarian situations specifically listed in Chapter 755.

Federal law defines "unmanned aircraft system" as "an unmanned aircraft and associated elements (including communication links and the components that control the unmanned aircraft) that are required for the pilot in command to operate safely and efficiently in the national airspace system."[13] The Federal Aviation Administration, the federal agency responsible for regulating aircraft, defines "unmanned aircraft system" as "a UA [unmanned aircraft] and its associated elements related to safe operations, which may include control stations (ground-, ship-, or air-based), control links, support equipment, payloads, Flight Termination Systems (FTA), and launch/recovery equipment."[14] In addition, the Congressional Budget Office, the Department of Defense, commentators, and at least two other states use fundamentally identical definitions.[15]

Although the General Assembly did not expressly define "unmanned aircraft system" in its final, enacted legislation, it is my opinion, based on the accepted principles of statutory interpretation discussed above, that the General Assembly used this term in accordance with its accepted industry definition, that definition having been utilized consistently by the federal government, federal agencies, and other jurisdictions. Indeed, to conclude otherwise would undermine the clear legislative intent to impose a temporary moratorium on the use of unmanned aerial vehicles by law enforcement to gather evidence in criminal cases.

It is my opinion, therefore, that an "unmanned aircraft system" is the unmanned aircraft itself, combined with the equipment and other components that permit that aircraft to be remotely operated. Even employing the definition of "system," used in isolation, that you provide comports with this interpretation. An unmanned aircraft, coupled with its supporting equipment, is a "regularly interacting or independent group of items forming a unified whole" and "a group of devices or artificial objects . . . forming a network especially distributing something or serving a common purpose."[16] The equipment you describe, an unmanned quad copter that is remotely controlled by a device in the hands of a human operator, falls within the ambit of an "unmanned aircraft system." The aircraft itself is the "unmanned aircraft," and, when that device is coupled with the requisite equipment and controls to permit its remote operation, it is properly considered an "unmanned aircraft system." When set up for remote use by a human operator, even a single quad copter will, therefore, be deemed an "unmanned aircraft system."[17]

Conclusion

Accordingly, it is my opinion that the term "unmanned aircraft system," in conformity with its accepted industry definition, encompasses a single unmanned aerial vehicle that has corresponding equipment and controls permitting its remote use by a human operator. It therefore is my further opinion that Chapter 755, which is effective until July 1, 2015, temporarily prohibits law enforcement from using a remotely controlled quad copter to gather evidence pursuant to a warrant.[18] Nevertheless, Chapter 755 does not prohibit the use of unmanned aircraft systems for specified humanitarian purposes.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] Your opinion request refers to House Bill 1611, introduced during the 2012 legislative session. The substance of the 2012 bill was more recently addressed by the General Assembly during its 2013 session when it considered House Bill 2012, recorded as Chapter 755 of the 2013 Acts of Assembly (the enactment is uncodified). This Opinion refers only to the enacted, more recent bill, which is currently in effect.

[2] Va. Code Ann. § 19.2-56.2 (Supp. 2014), which sets forth the manner of obtaining warrants for "tracking devices," defines "use of a tracking device" as excluding "the capture, collection, monitoring, or reviewing of images." The devices you describe, therefore, do not fall within the ambit of this statute.

[3] 2013 Va. Acts ch. 755.

[4] Id.

[5] Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425, 722 S.E.2d 626, 629 (2012) (quoting Commonwealth v. Amerson, 281 Va. 414, 418, 706 S.E.2d 879, 882 (2011)) (further citation and internal quotation marks omitted).

[6] See Commonwealth v. Jones, 194 Va. 727, 731, 74 S.E.2d 817, 820 (1953) ("A statute should be construed so as to give effect to its component parts. Its meaning should not be derived from single words isolated from the true purpose of the Act.").

[7] Protestant Episcopal Church v. Truro Church, 280 Va. 6, 21, 694 S.E.2d 555, 563 (2010) (citing Sansom v. Bd. of Supvrs., 257 Va. 589, 595, 514 S.E.2d 345, 349 (1999) (quoting Dep't of Taxation v. Orange-Madison Coop. Farm Serv., 220 Va. 655, 658, 261 S.E.2d 532, 533-34 (1980))).

[8] Norman J. Singer & J.D. Shamble Singer, Sutherland Statutes and Statutory Construction § 47:29 (7th ed. 2007).

[9] Id. § 47:31.

[10] Nelson v. Cnty. of Henrico, 10 Va. App. 558, 561, 393 S.E.2d 644, 646 (1990).

[11] See Jones v. Conwell, 227 Va. 176, 181, 314 S.E.2d 61, 64 (1984) ("The rules of statutory interpretation argue against reading any legislative enactment in a manner that will make a portion of it useless, repetitious, or absurd.").

[12] Although the General Assembly, in accordance with prevailing industry standards, used the phrase "unmanned aircraft system," or "UAS," in its legislation, a UAS is often referred to, colloquially, as a "drone." See, e.g., Elec. Frontier Fdn v. Dep't of Homeland Sec., No. C12-5580PJH, 2014 U.S. Dist. LEXIS 44863, at *2 (N.D. Cal. Mar. 31, 2014) (noting that "unmanned aircraft systems" are also referred to as "drones").

[13] FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, 126 Stat. 11, 72, § 331(9) (2012).

[14] FAA Order 8900.1, Flight Standards Information Management System, Vol. 16, Ch. 1, § 2 (June 23, 2014), available at http://fsims.faa.gov/PICDetail.aspx?docId=8900.1,Vol.16,Ch1,Sec2.

[15] See, respectively, Cong. Budget Office, Policy Options for Unmanned Aircraft Sys., Pub. No. 4083, at 4 (2011) (defining "unmanned aircraft system" as "an unmanned aircraft plus the necessary equipment, communications network, ground stations, personnel, and infrastructure to control it.") (emphasis added); Dep't of Defense, Joint Publication 3-52, Joint Airspace Control, at GL-13 (May 20, 2010) (defining "unmanned aircraft system" as "[t]hat system whose components include the necessary equipment, network, and personnel to control an unmanned aircraft."); accord Dep't of Defense, Dictionary of Military & Associated Terms 351 (2012) (same definition); John Villasenor, Privacy, Security, & Human Dignity in the Digital Age: Observations from Above: Unmanned Aircraft Systems & Privacy, 36 Harv. J.L. & Pub. Pol'y 457, 458 n.1 (2013) (discussing the term "unmanned aircraft system," and noting that, while "unmanned aerial vehicle" refers "to the aircraft itself," "[t]he term unmanned aircraft system (UAS) refers to an unmanned aircraft as well as the associated communication and control components used in its operations"); Idaho Code Ann. § 21-213(1)(a) (2014) (defining "unmanned aircraft system" as "an unmanned aircraft vehicle, drone, remotely piloted vehicle, remotely piloted aircraft or remotely operated aircraft that is a power aerial vehicle that does not carry a human operator, can fly autonomously or remotely, and can be expendable or recoverable"); 2013 N.C. Sess. Laws 360, § 7.16(2)(2) (defining "unmanned aircraft system" as "an unmanned aircraft and associated elements, including communication links and components that control the unmanned aircraft that are required for the pilot in command to operate safely and efficiently in the national airspace system."). See also N.D. Cent. Code § 54-60-2 (2013) (establishing an "unmanned aircraft systems program fund"); Tex. Gov't Code Ann. § 423.002 (2014) (permitting the use of "unmanned aircraft" by law enforcement officers under certain circumstances); cf. Fla. Stat. Ann. § 934.50 (2013) (defining "drone"); 725 Ill. Comp. Stat. 167/5 (2014) (same); 720 Ill. Comp. Stat. 5/48-3(b)(10) (2014) (same); Or. Rev. Stat. § 837.300(1) (2013) (same); Tenn. Code Ann. § 39-13-609(b)(1) (2014) (same).

[16] http://www.merriam-webster.com/dictionary/system (last visited Sept. 9, 2014).

[17] Cf. 49 C.F.R. § 830.2 (defining "unmanned aircraft accident" as an incident "that takes place between the time that the system is activated with the purpose of flight and the time that the system is deactivated at the conclusion of its mission," thereby implying that an "unmanned aircraft system" is a single item, rather than multiple aircraft vehicles).

[18] Because the issue you present is one of statutory interpretation, I do not address other questions outside the scope of this request, such as whether the warrantless use of an unmanned aircraft system might violate certain expectations of privacy, or whether the Virginia legislation might be preempted by federal aviation law.