Warrantless Governmental Drone Surveillance a Risk

A Michigan pair accused of violating zoning laws is once again at the center of a Constitutional debate. 

In 2008, Long Lake Township brought a zoning ordinance violation lawsuit against township residents Todd and Heather Maxon. The township alleged the Maxons’ property was overfull of trash and debris, and therefore in violation of zoning ordinances prohibiting salvage or junk-yards.

Constitutionality prevailed in the form of an out-of-court settlement that called for the township to pay $3,200 of the Maxons' legal expenses and agree to levy no future zoning enforcements—deriving of facts or circumstances identical to the initial disagreement—against the couple. The Maxons, for their own part, admitted no liability in the case. 

A decade later, however, in 2018, Long Lake Township officials hired a contractor to fly a reconnaissance drone over the Maxons' property and take photographs. Township officials then used those photographs—taken without the Maxons' permission—as evidence in a second lawsuit filed against the couple in the 13th Circuit Court. 

The Maxons subsequently hired Traverse City attorney Bill Burdette, who sagely argued that flying a drone over private property for purpose of taking photos of possible zoning violations constitutes an egregious instance of government overreach. 

Township officials countered, alleging the salvage/junk-yard ordinance had been violated anew by what they called a "significant increase in the amount of junk" being stored at the property since the 2008 settlement. 

The township endeavored to substantiate its position by introducing aerial photos it claimed were taken in 2010, 2017 and 2018. Township officials ascribed the 2010 photo to Google, but admitted the 2017 and 2018 photos had been taken during a contracted drone flyover of the Maxon’s property. 

Arguing on behalf of the township, attorney Todd Millar put forth that his client’s actions did not constitute a civil rights violation insomuch as the Maxons' property was clearly visible from above. 

Burdette refuted the argument, stating the township’s use of the drone specifically violated his clients' Fourth Amendment rights—hence the photos should be suppressed. 

Thirteenth Circuit Court Judge Thomas Power disagreed and denied the Maxons' request for dismissal. 

The Maxons appealed, however, and in a 2-1 decision, a three-judge panel of the Michigan Court of Appeals reversed Power's porcine decision, ruling that municipalities cannot fly drones over private property without a warrant. 

Judges Kathleen Jansen and Amy Ronayne Krause stated, “Just because a new capability exists, that does not mean a homeowner's privacy rights should be placed at the mercy of advancing technology.” 

In April 2021 Millar, on behalf of the township, appealed the decision to the Michigan sSupreme Court, which in turn remanded the case back to the Court of Appeals with a specific instruction:  "In lieu of granting leave to appeal, we VACATE the judgment of the Court of Appeals and REMAND this case to that court to address the additional issue of whether the exclusionary rule applies to this dispute," 

A date for a COA judges panel to re-consider the case has not yet been set. 

FMI: https://uavcoach.com/drone-laws/