Michigan court says government can’t use drones without a warrant


While we all may feel as if “Big Brother” is watching us from time to time, a recent Michigan court ruling ensures local governments generally can’t use drones to do so.

A little background first. The  protects people from unreasonable government searches and seizures. At the core of the Fourth Amendment is a person’s right to privacy, including the idea people shouldn’t be subjected to arbitrary government invasions. So, when a governmental entity wants to search a person or their property, the government typically needs a warrant.

The rise of technology has complicated whether the government is “searching” someone’s property or merely just using the technological resources available today. Despite some of the resources available today, local, state and the federal government still must respect Fourth Amendment privacy rights.

In Long Lake Township v. Todd Maxon and Heather Maxon, the Michigan Court of Appeals said Long Lake Township must have a warrant to inspect property. In the case, the township used drones to determine if property owners were violating zoning rules related to illegal junk yards. The property owners had previously gotten in trouble for violating zoning rules but ended up reaching an agreement with the local government.

Shortly after reaching an agreement, however, Long Lake Township felt the property owners were violating the agreement and the zoning rules by greatly increasing the amount of junk on their property. The local government sued the property owners, again arguing they were in violation of the zoning rules.

To prove their argument, Long Lake Township provided the court with aerial photos taken over a span of eight years. According to the township, these photos proved a huge increase in junk on the property, which violated zoning rules. The aerial photographs of the property were taken by drones.

The property owners objected to the drone photographs. They argued the aerial surveillance and drone photos were an illegal search that violated the Fourth Amendment. The court agreed.

To help reach its decision, the court reviewed several U.S. Supreme Court cases involving privacy and the Fourth Amendment. The Michigan court pointed out one case involving thermal imaging. In that case, the Supreme Court noted that just because technology is advancing does not mean that people do not have reasonable privacy expectations in their own homes. Other Supreme Court cases, however, have held that viewing property from airplanes and helicopters did not violate the Fourth Amendment.

In the end, the Michigan Court of Appeals determined the drone issue was similar to the thermal imaging case. It ruled Long Lake Township had indeed violated the Fourth Amendment when using a drone to inspect and photograph the property without a warrant or the property owners’ permission. This case ultimately limits the ability of local governmental units to search property by upholding an individual’s privacy rights under the Fourth Amendment.

Note: This case addressed government use of drones to “search” private property but also may have implications for private drone use over another’s property and whether such use invades the landowner’s “reasonable expectation of privacy.” Private operation of a drone that invades another’s “reasonable expectation of privacy” is prohibited by Michigan statute.

Lexi Woods is an attorney with the law firm Warner Norcross + Judd LLP who concentrates her practice in real estate transactions and data privacy. She can be reached at awoods@wnj.com.

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