30 Oct Drone Photos in Contention Before Michigan Supreme Court
By Katherine H. Miller
October 30, 2023
Privacy is central to any legal discussion about how drones may be used. A case currently before the Michigan Supreme Court brings forth another nuance to consider: to what extent may a government use drones to gather evidence for proceedings? Does a government violate the Fourth Amendment prohibition against unreasonable searches and seizures when it flies a drone over a citizen’s property in order to take pictures of alleged zoning violations?
Todd and Heather Maxon kept disassembled cars in their backyard as part of Todd’s hobby. In 2008, Long Lake Township brought a complaint against the Maxons, alleging that the Maxons were violating zoning regulations. The township and the Maxons eventually settled the case, agreeing that the Maxons could maintain the number of cars on their property but that they could not add more. In 2018, Long Lake Township took pictures of the Maxons’ property via drone in order to ascertain whether the Maxons were following the stipulations of the 2008 agreement. The township then appended those photos to its complaint. The Maxons, however, assert that the aerial drone photos are a Fourth Amendment violation and therefore should be removed from evidence under the exclusionary rule, which prevents the consideration of illegally obtained evidence.
The trial court ruled that the Maxons had no reasonable expectation of privacy and denied the Maxons’ motion to suppress the drone photos. The court of appeals reversed the trial court’s decision, holding that the use of the drone was a violation of the Fourth Amendment since the township did not first obtain a warrant.
In its appeal to the Michigan Supreme Court, the township chooses to ignore the question of whether it infringed upon the Maxons’ constitutional rights. Instead, it asserts that the issue is moot because the exclusionary rule, upon which the Maxons’ motion to suppress rests, does not apply in this situation. First, the township argues that the exclusionary rule prohibits the use of illegally obtained evidence in a criminal trial—but this is unambiguously a civil case. The township did not seek to impose fines upon the Maxons and asserts that even if it had, that would not have elevated the case to criminality. Second, the township asserts that the exclusionary rule exists in order to keep police departments from abusing their power—but no police were involved in this case.
Courts in the past have not seemed inclined to extend the exclusionary rule to civil cases, which is a technicality on which the township may win. However, the township’s argument that the absence of police precludes the exclusionary rule ignores a blatant parallel: police departments, like a township, are inherently government entities with governmental power. If the exclusionary rule exists to prevent the abuse of private citizens from the overreach of the government through the police, then the rule should apply to protect against the overreach of the government in any form. Application of the exclusionary rule tends to rely on the Wolf factors: first, what is the likely deterrent effect on future police conduct? Second, what has more weight in a balancing test between maintaining societal interest and excluding the evidence?
By substituting “government” for “police” in the first Wolf factor, the nuance of future deterrence on government action when using drones to monitor citizens becomes clearer. The court of appeals did not hold that the township could not use drones to take pictures; it held that a warrant was required to do so. The township should have obtained a warrant, sent observers to adjoining plots of land to view the Maxons’ property, which was not concealed, or used satellite photographs since courts have held that there is no reasonable expectation of privacy against those. Requiring a warrant would not impact the government’s conduct, since doing so would not affect its ability to bring suit against the Maxons. The first Wolf factor should therefore apply.
Considering the second Wolf factor, the Maxons present a compelling argument against government overreach and monitoring via drone. There is a clear societal interest in protecting citizens’ privacy rights, particularly as advances in technology threaten privacy as a whole. The township’s interest in enforcing its zoning laws is not strong enough to stand against this, especially since the township had other options for gathering evidence against the Maxons.
The township asserts that the Maxons had no fence around their property, no awning above it, and therefore no reasonable expectation of privacy, but the Maxons argue that an activity should not have to be hidden to be private. Moreover, visual observation from the air is different from aerial photography. The Supreme Court held in Kyllo v. United States that visual observation does not amount to a search, and in Riley, where visual observation of a property was obtained via helicopter flight, the Court noted that the results would have been different if the police had broken laws or regulations to obtain such evidence. Importantly, Michigan does have a statute that prohibits trespassing on private property for purposes of surveilling the owner’s activities, and another statute that prohibits using drones for something that would be illegal if done by a person directly.
Therefore, under the Maxons’ line of reasoning, if the drone was trespassing, then the photographs were obtained illegally and may not be used as evidence. Trespass itself is not an inherent Fourth Amendment violation, and the Maxons are not arguing that drones that cross property lines are necessarily trespassers. Rather, the Maxons are arguing that trespass depends on what the drone is doing and whether it leaves when asked. The court of appeals agreed that “flying [drones] at legal altitudes over another person’s property without permission or a warrant would reasonably be expected to constitute a trespass.” Although the Maxons had agreed to allow previous drone flights and there is an “implied license” to approach out of Florida v. Jardines, consent cannot exceed the scope of what was agreed.
It seems likely that however the Michigan Supreme Court rules, the losing party will apply to the Supreme Court for a writ of certiorari. It is less certain whether the United States Supreme Court would grant it. Case law and statutes concerning drones are hardly comprehensive, and courts have been reticent to establish legislation judicially.
One thing, however, is clear: while Long Lake Township may win this case over a technicality, allowing at-will governmental surveillance by drone would set concerning precedent for the future.
 Relying on Florida v. Riley, 488 U.S. 445 (1989), in which the Supreme Court held that aerially observing property from a helicopter did not constitute a Fourth Amendment violation.
 Wolf v. Colorado, 338 U.S. 25 (1949).
 Kyllo v. United States, 533 U.S. 27 (2001).
 Long Lake Township v. Maxon, 970 N.W.2d, 893, 905-906 (2021).
 Florida v. Jardines, 569 U.S. 1 (2013).