California County Uses Blanket Drone Searches To Dole Out Fines

Nichola Schmitz has paid $25,000 in fines to Sonoma County and may owe another $10,000 for violations that were only discovered because code enforcers flew drones with high-powered cameras over her property. Those drones have been flying without authorities first getting a warrant and Schmitz is not the only resident who has been snooped on.

According to a lawsuit from the ACLU of Northern California, the county’s Permit Sonoma agency has deployed drones more than 700 times and captured at least 5,600 images. The lawsuit claims that these drones fly low to the ground and record “fenced-in yards, swimming pools, and hot tubs.”

Schmitz is deaf, but a worker on her property pointed out a drone flying over her home in October 2023. It did loops around her property as she closed the curtains in her bedroom. Shortly after the flight, the county put a red tag on her gate alleging two code violations: one for illegal grading and another for an unpermitted dwelling (a small cabin built over 40 years ago by her late father.)

At first, she thought the drone might have been flown by one of her neighbors. After months of feeling distrustful, she discovered that it was the county code enforcers just fishing for possible violations and doing so without warrants.

Snooping from the Sky

“Snooping” is the perfect word for what is happening in Sonoma. In fact, one county official running the drones admitted that they occasionally see people in a state of undress. His excuse to seeing intimate moments was: “When we see something like that, we turn around.”

The drones have powerful cameras that can zoom in up to 56x and one of the drones is equipped with a thermal imaging camera with a 200x zoom. The thermal imaging can see through structures. Sometimes the drones are also taking photos while relatively low to the ground, down to 25 feet. This means that many of the captured images show the inside of residents’ homes.

Roots in Cannabis Crackdown

Sonoma County’s drone program started as a crackdown on illegal cannabis growers, but as that crime became less prevalent (and less profitable for the county), the operators shifted to looking for code violations. In 2022, 96% of flights were looking for cannabis, but last year the number of non-cannabis searches approached 50%. This is happening even though the county used a grant to purchase drones claiming it would primarily be used to search for illegal growers.

Internal documents that the ACLU has uncovered show county enforcers contemplating whether they should acquire warrants before performing these searches but rejecting that constitutional path. Instead, they only promised to adhere to FAA regulations and not “intentionally” record people.

Permit Sonoma seems to know that residents would find the program deeply creepy. While it makes many of its policies available on its website, the drone policies aren’t available. When the plaintiffs received their fines, they were not informed that it was due to a drone search.

Lots of Rules, Lots of Cash

Rules governing property and building codes are thick and can be incomprehensible to most homeowners. Many people have no idea that they are out of code, especially if they inherit property as Schmitz did.

For the most part, code enforcement responds to complaints. Neighbors call in concerned about true nuisances that could affect the enjoyment of their private property. But when code enforcers use a figurative microscope to inspect properties, they are likely to be able to find something small that they can issue a fine over. And fines can quickly pile up since they are applied daily and typically without an upper limit.

Sonoma County has brought in more than $3 million by using drones to find illegal cannabis growing. It’s uncertain how much has been brought in through enforcing other laws, but the suit notes that at least one property owner was fined more than $150,000.

Drones Over America

Sonoma County isn’t alone in using drones to enforce its property code. A Michigan man fought a case all the way to the state supreme court after his township used three warrantless drone searches of his backyard to enforce against him a picayune zoning violation. Yet the court ducked whether that warrantless surveillance violated the Fourth Amendment. Rather than decide that cutting-edge question, the court determined that since the man’s case was civil, rather than criminal, he didn’t have the right to exclude evidence that has been collected unconstitutionally.

Last year, United States Supreme Court Justice Neil Gorsuch published a book, Over Ruled: The Human Toll of Too Much Law. He noted that there are at least 300,000 federal agency regulations that carry criminal sanctions. Cataloguing all the additional state, county, and local rules that can carry fines or jail time, is an almost impossible task.

The Fourth Amendment, and the state constitutional safeguards that mirror it, should be a powerful protection against government overreach. Rather than searching any property they wish to, code enforcers need to prove to a neutral judge that there is probable cause that a violation is occurring.

The Sonoma County lawsuit was just filed and makes only state constitutional legal arguments. It seems likely that it will one day work its way up to the California Supreme Court. The state high court should reject Michigan’s view that code enforcers can violate rights and then make the victims pay. Drone fishing expeditions by government officials are fundamentally anti-American. We can’t say we live in a free country if code enforcers are peeking through the curtains.