Government Drone Overflights May Violate Fourth Amendment, Trigger Exclusionary Rule
From Long Lake Township v. Maxon, decided March 18 by the Michigan Court of Appeals (Judge Kathleen Jansen joined by Judge Amy Ronayne Krause):
In 2008, the parties litigated an alleged violation of the Long Lake Township Ordinance by defendants. That proceeding culminated in a settlement agreement …. In 2018, plaintiff filed the instant civil action, alleging that defendants had “significantly increased the scope of the junk cars and other junk material being kept on their property” since entering into the 2008 Agreement, and that such activity “constitut[ed] an illegal salvage or junk yard” in violation of the Long Lake Township Zoning Ordinance. In support of these allegations, plaintiff attached aerial photographs taken in 2010, 2016, 2017, and 2018. These photographs showed a “significant increase in the amount of junk being stored on [d]efendants’ property.”
Defendants moved to suppress the aerial photographs and “all evidence obtained by [p]laintiff from its illegal search of their property.” Defendants argued that the aerial surveillance of their property, and the photographs taken by the drones of their property and the surrounding area, constituted an unlawful search in violation of the Fourth Amendment.
Defendants argued that the instant case is distinguishable from precedent involving manned aerial surveillance because, unlike fixed wing aircraft and helicopters which “routinely fly over a person’s property,” drones are equipped with “high power cameras” and do not operate at the same altitudes as airplanes and helicopters. Additionally, defendants argued that a person can reasonably anticipate being observed from the air by a fixed wing aircraft, but aerial surveillance from a drone flying over private property and taking photographs is not a reasonable expectation. Moreover, defendants noted that plaintiff’s drone surveillance did not comply with Federal Aviation Administration (FAA) regulations. We note that photographs in the record clearly show that very little, if any, of defendants’ property is visible from the ground, due to a combination of buildings and trees….
This is ostensibly a civil proceeding…. However, the Fourth Amendment may protect parties from unreasonable searches and seizures committed by a governmental entity in civil cases, if the civil case can be considered “quasi-criminal” and the search or seizure was committed by the governmental entity pursuing the action. Kivela v. Dep’t of Treasury (Mich. 1995) (discussing a test for the admissibility of evidence illegally seized by police for a criminal proceeding in an independent subsequent tax proceeding); People v. Gentner, Inc. (Mich. App. 2004); see also Camara v. Muni. Court of City and Co. of San Francisco (1967) (holding that administrative searches implicate the Fourth Amendment even if the searches are not criminal in nature, albeit subject to less exacting requirements to establish probable cause)….
The purpose of this litigation is to obtain a declaratory judgment that defendants’ use of their own property is illegal. Considering the great historical importance placed on the freedom to use one’s own property, and the fact that the consequences of this action may entail far more than merely the imposition of money damages, we conclude that this is the kind of proceeding to which the Fourth Amendment may apply. Further supporting this conclusion is MCL 259.322(3), which expressly prohibits the use of a drone to
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