From technology, Unmanned Aerial Vehicles (UAVs), known as drones, arrived to provide multiple social functions, including as allies of security and crime prevention.
More and more frequently, police and judicial investigators use this tool to advance, for example, in cases that have to do with the cultivation of cannabis.
However, in the effort to clarify a crime, many times they can go too far to the point of causing the “downfall” of a criminal case.
It happened in Bahía Blanca, with a court ruling issued a little less than two years ago, and now it is replicated in General Roca, although with some differences.
The Federal Chamber of that Rio Negro city revoked the validity of a raid that served to discover a marijuana plantation in the courtyard of a house -the images captured by a drone were used as evidence to request the diligence- and annulled it, as well as everything what was subsequently acted on in the case.
The reason? Violating the right to privacy, despite the fact that the device had been manipulated by a police officer authorized for this purpose and from the public thoroughfare.
Judges Mariano Roberto Lozano and Richar Fernando Gallego, from General Roca, once again highlighted an issue that generates a relevant clash of interests.
They clarified that they did not seek to censor the taking of aerial images or the use of this type of device or other technological means to facilitate investigations, but rather “to determine the scope and minimum requirements for the disposition of these state interference.”
To the patio, with zoom
In the record of the procedure carried out on March 3 of this year, it was detailed that the unmanned vehicle captured images “not only of the defendant’s house but also of his patio and the boundary, with a close-up (zoom).”
The chambermaids considered that the “tension” that new technologies generate on the right to privacy (Article 19 of the National Constitution) does not escape analysis, especially due to the increase in the effectiveness that their use provides in the investigation of crimes.
“The patio of a house is a space where an important expectation of privacy is sheltered”, considered the Chamber of Roca, to add that in this context people carry out activities that “they would like to keep out of strange looks.”
In the specific case, in addition, the overflown space is closed by material walls of a certain height, surrounded by one-story houses that preserve it from the outside.
For this reason, they considered that for the State to advance on a guarantee like this, it must have a need for intrusion proportional to that effect.
“The intimate connection between the inviolability of the home and especially the home, with the dignity of the person and respect for their freedom, impose stricter conditions on the regulation than those recognized with respect to other guarantees,” they remarked.
Antecedent in White
The Bahía Blanca Criminal Chamber, in November 2019, “lowered” a case for drug dealing by excluding images taken with a drone as evidence.
It was when a Narcocriminalidad police officer received “a piece of information”: the possible marijuana plantation in a house in Avenente al 3000, in Ingeniero White.
With that information – and the version of a witness who could not be identified – an operation was mounted and the use of a drone was able to certify the suspicion.
He managed to photograph the existence of cannabis plants in the courtyard of a house.
However, there was no judicial authorization to carry out this procedure and everything collapsed.
Chamber I considered that in the case there was a violation of privacy and the right to private property.
This type of resolution generates some resistance among those who have to carry out a criminal investigation because they feel limited in their actions, taking into account that, for example, ARBA can use drones, but for tax purposes.
The question that arises is to know how far images can be taken without invading the private sphere because in this case of White the prosecution assured that the policeman had not violated the home but rather raised the drone vertically from the public highway.
However, the Justice rejected the argument because “in these images it can be easily seen that the photograph was taken from a horizontal lateral angle and with great proximity to the object it captured.”
The Chamber of Bahia called for a “prudent and careful” use of drones as means of investigation.
Article 209 of the Code of Criminal Procedure of the Province of Buenos Aires provides probation to the extent that the evidence does not suppress guarantees.
Prohibition. Drones cannot be operated in controlled airspaces or noise-sensitive areas or prohibited or dangerous areas (such as airports and military zones).
Height. The maximum height at which any drone can operate is 122 meters and it is forbidden to lose visual contact with the vehicle or operate it under the influence of alcohol or drugs.
Age. It is mandatory to be over 18 to drive it, although those of 16 can do it with the supervision of an adult, only if the unit is small and for recreational purposes.
Weight. The operator of drones of more than 10 kilos or that are not used for sporting purposes must be registered with the ANAC and have civil liability insurance.