If a Drone Is Flying in Restricted Airspace and Captures Illegal Activity, Can It Still Be Used as Evidence?

Drones are more accessible than ever, making legislation concerning their use a hot topic across the country. The FAA has created rules regarding where citizens can fly their drones and what they can record; however, many individuals may not understand the complexities governing the use of drones and their footage in court cases. In fact, many claims involving drone footage today will set precedents for their use in the future.

The rules regarding drone operation are still being written. However, in the state of Texas, private citizens are generally not supposed to take any pictures without consent. Drone operators can record footage legally, though, if their use falls under certain parameters. Citizens should not possess illegal drone footage, post it online, or distribute it. Officers can confiscate drone footage with a warrant.

Drone operators cannot operate their vehicles in restricted air space, including navigable airspace 500-1,000 feet off the ground and in marked “restricted” zones. Local jurisdictions may have additional ordinances regarding the use of drones in the area.

The laws surrounding drone use in Texas are very clear when it comes to using footage captured in an illegal manner. The courts will not admit it into evidence, and taking the footage to the police will only prove an operator has violated the laws regarding drone use in the state.

Section 423.005 of the state’s drone law directly handles the illegal capturing of images. The footage is not admissible in criminal proceedings, civil actions, or administrative proceedings. The courts cannot subpoena footage or otherwise use it during the course of a legal case of any type. The courts can, however, take and use the footage to prove a drone operator violated the drone laws of the state or local jurisdiction.

While the legislation may not seem fair in light of the situation, these restrictive rules provide significant privacy protection for average citizens in the state. They may even prevent law enforcement and private citizens from overstepping their bounds to obtain evidence for court proceedings.

If you own a drone in Texas and accidentally capture illegal activity, the law requires you destroy the footage as soon as you realize the nature of its taking. You may want to consult an attorney before doing so, however. An attorney can tell you for certain if the footage is illegal under state and local laws. The scenario presents a true catch-22, with the risk of facing a fine or legal consequences yourself for capturing the footage on one hand and letting a criminal get away with illegal activity on another.

An attorney can help you determine the best course of action and protect your rights while ensuring your civic duty to protect the public from criminal activity. Of course, gaining a clear understanding of legal drone use in Texas may prevent this situation from arising in the first place.

Drone operators must consider federal airspace guidelines from the FAA as well as state and local drone legislation before taking the aircraft out to the park or down to the lake. Texas does outline situations for the legal capture of footage, but failing to recognize and abide by those rules could result in fines or misdemeanor charges. As of September 1, 2015, our state enacted new drone laws that will likely develop over the next several years. Regardless, maintaining current awareness is key to using these machines legally.

If you have any questions regarding drone laws around Houston, give our team at Gordon, Elias & Seely a call today.

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