Michigan Supreme Court Shoots Down Question About Drone Surveillance

​The long back-and-forth between Michigan’s Long Lake Township and Todd and Heather Maxon ended with the Michigan Supreme Court punting on the Fourth Amendment implications of drone surveillance over private property.
 
An appellate court had held that the township’s warrantless use of a drone three times in 2017 to photograph the Todd’s property was an unreasonable, warrantless search, constituting a Fourth Amendment violation. PPSA filed a brief supporting the Maxons before the Michigan Supreme Court, alerting the court to the danger of intimate searches of home and residents by relatively inexpensive drones now on the market.
 
To demonstrate the privacy threat of drones, PPSA informed the court that commercially available drones have thermal cameras that can penetrate beyond what is visible to the naked eye. They can be equipped with animal herd tracking algorithms that can enhance the surveillance of people. Drones can swarm and loiter, providing round-the-clock surveillance. They can carry lightweight cell-site simulators that prompt the mobile phones of people inside the targeted home to give up data that reveals deeply personal information.
 
Furthermore, PPSA’s brief states that drones “can see around walls, see in the dark, track people by heat signatures, and recognize and track specific people by their face.”


PPSA agreed that even ordinary photography from a camera hovering over the Maxon’s property violated, in the words of an appellate court, the Maxon’s reasonable expectation of privacy. But in a unanimous decision, Michigan’s top court was having none of this. It concluded that the exclusionary rule – a judicial doctrine in which evidence is excluded or suppressed – is generally applied when law enforcement violates a defendant’s constitutional rights in a criminal case. The justices remanded the case based upon a procedural issue unrelated to the Fourth Amendment question.  
 
The Michigan Supreme Court, therefore, declined to address “whether the use of an aerial drone under the circumstances presented here is an unreasonable search in violation of the United States or Michigan Constitutions.”
 
A crestfallen Todd Maxon responded, “Like every American, I have a right to be secure on my property without being watched by a government drone.”
 
The issue between the township and the Maxons was the contention that, behind the shelter of trees, the couple was growing a salvage operation. This violated an earlier settlement agreement the Maxons had made pledging not to keep a junkyard on their five-acre property. Given the potential for drones to use imaging and sensor technology to violate the intimate lives of families, it is all but inevitable that a better – and uglier – test case will come along.
 
If anything, this ruling makes it a virtual certainty.