Michigan drone surveillance case – DRONELIFE

Michigan high court punts on question of drone surveillance legality

By DRONELIFE Features Editor Jim Magill

In a case that could have broad implications on drone surveillance efforts conducted by local governments, the Michigan Supreme Court had ruled that drone footage of a couple’s private property should not be excluded as evidence in a civil action against them.

In the case of Long Lake Township vs. Todd and Heather Maxon, the state high court ruled on May 3 that photos and videos the township obtained by flying a drone over the couple’s property could be used in a case to prove the couple was operating an unpermitted junkyard.

Lawyers for the Maxons had argued that the using a drone to obtain evidence against the couple, without first obtaining a search warrant, constituted a violation of their Fourth Amendment rights, and therefore the evidence should be excluded. However, an appeals court found, and the Supreme Court concurred, that the exclusionary rule against the use of illegally obtained evidence applied primarily to criminal cases, and not civil actions such as the one that the township had undertaken against the Maxons.

The Supreme Court remanded the case back to the circuit court for further action. However, the court did not rule on the underlying question of whether the drone surveillance itself constituted a violation of the U.S. and Michigan constitutions.

The case stretches back almost two decades. In 2007, the township sued Todd Maxon for allegedly violating its zoning ordinances by, among other things, storing salvaged vehicles on his property. The parties reached an agreement that was favorable to Maxon.

In the wake of that settlement, after receiving complaints from neighbors that the Maxons were storing excessive junk on their property, township officials hired a contractor to take aerial photographs and video of the Maxons’ property. The contractor, taking off and landing from an area set off from the Maxons’ property, shot drone photos and video on three occasions between April 2017 and May 2018.

The township then sued the couple, alleging that the drone footage showed they were storing excessive amounts of salvaged material on their property, in violation of the township’s zoning and nuisance ordinances. The case has bounced around the Michigan court system since 2018. The state Supreme Court heard arguments in the case last November.

Attorneys for the Institute for Justice, which is representing the Maxons in the case, expressed outrage at the high court’s ruling. “The Michigan Supreme Court blessed warrantless surveillance in the name of code enforcement,” attorney Mike Greenberg, who argued the case in court, said in a statement.

Robert Frommer, who heads the Institute’s Project on the Fourth Amendment, called the high court decision disappointing. “The key legal question really, is whether drone surveillance, repeatedly flying a drone over somebody’s property, was a search,” Frommer said in an interview.

However, according to the Supreme Court ruling, in a case such as the one against the Maxons, “even if they’ve deliberately violated your rights, they can still use the evidence in court,” he said.

While drone usage by local government and law enforcement agencies has greatly expanded in the past several years, Frommer said the Maxon litigation is the first case with such important Fourth Amendment implications to reach such a high level in a state’s judicial system.

Frommer said he thought the state Supreme Court should have ruled on the question of whether the township’s use of drone surveillance comprised an unconstitutional search. “When the government intentionally, deliberately flies a drone all over your property in order to gather evidence against you, that should be considered a search under the Fourth Amendment,” he said.

“Unfortunately, I think the fact that the Michigan Supreme Court sidestepped the issue means that we’re going to see more drones in the sky. Eventually this is going to have to be decided by somebody, perhaps the U.S. Supreme Court.”

He said the township should have been required to obtain a search warrant before conducting any drone surveillance over the Maxon’s property. “All that Long Lake would have needed to do was to have gone before a judge ahead of time and say the reasons why they wanted to fly the drone.”

Absent requiring a search warrant in such cases, local governments would be empowered to use drone surveillance to conduct “fishing expeditions,” to gather evidence against any individual, he said.

In any case, Frommer said he doubted that the old drone footage would be useful as evidence in the upcoming court proceedings.

“These photos at this point are close to seven years old. I’m not sure they’re actually evidence of much of anything at this point,” he said. “I wouldn’t be surprised if Long Lake Township has to go back to the drawing board and potentially try to get new photos.”

DroneLife attempted to contact a Long Lake official for a comment, but did not receive an answer.

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Jim Magill is a Houston-based writer with almost a quarter-century of experience covering technical and economic developments in the oil and gas industry. After retiring in December 2019 as a senior editor with S&P Global Platts, Jim began writing about emerging technologies, such as artificial intelligence, robots and drones, and the ways in which they’re contributing to our society. In addition to DroneLife, Jim is a contributor to Forbes.com and his work has appeared in the Houston Chronicle, U.S. News & World Report, and Unmanned Systems, a publication of the Association for Unmanned Vehicle Systems International.