Issue No. 5 | May 2021

By Will C. Sanford

The use of drones for surveillance purposes took a big hit in March of this year, when the Michigan Court of Appeals disallowed the use of “low-altitude, unmanned, specifically targeted drone surveillance of a private individual’s property” without a warrant. The decision was a major win for advocates of the Fourth Amendment, otherwise known as an individual’s right to be protected against unreasonable searches and seizures.

A Long Lake Township attorney has asked the Michigan Supreme Court to review the case, which specifically held that township officials could not fly a drone over someone’s backyard without a warrant, take photos, and then use the photos to administer citations to the homeowner for zoning violations.

The case began in 2019, when Long Lake Township alleged that a couple, Todd and Heather Maxon, had illegally expanded their storage of junk cars and other materials on their property in violation of a previous court settlement.  In support of the action, the Township attached aerial photographs taken by an unmanned aircraft (drone).  The pictures documented the increase in the amount of junk on the property over several years. The Maxon’s moved to suppress the photos, arguing that the pictures constituted an illegal search under the Fourth Amendment.

In reaching a decision for the Maxon’s, the Court of Appeals reasoned that for decades, Fourth Amendment decisions were relatively clear-cut because they turned on whether the information was gained by trespassing on someone’s property.  Searches involving trespass were almost always a violation of the Fourth Amendment, while searches that involved visual surveillance from a public location were permissible or deemed to not even be searches.  Technology, however, has made matters more complicated.  The Court of Appeals noted that the use of an infrared camera to “see inside” a structure was considered to be an illegal search even when the camera was operated from a public place. The Court of Appeals also noted that a homeowner should not be at the mercy of advancing technology, stating that “the development of historically-novel ways to conduct unprecedented levels of surveillance at trivial expense does not per se reduce what society and the law will recognize as a reasonable expectation of privacy.”  

The recently filed brief in support of Long Lake Township in the appeals case emphasizes that drone use by municipalities is increasing, and that government units use drones not just for code enforcement, but also for fire protection, police investigation, tax assessing, GIS mapping and aerial surveys. With an appeal to the Michigan Supreme Court now on the horizon, we’re wondering whether the Supreme Court will emphasize with the Township or Fourth Amendment when it comes to drone surveillance.

Sources: Attorney Asks Michigan Supreme Court to Review Drone Case | Drone Operators Beware….Michigan Appellate Court Opines On Privacy | Township violated Michigan couple’s privacy by using drone, court says


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