Use of drone to surveil couple’s property illegal, court rules

A Michigan township violated a couple’s Fourth Amendment protections when it used a drone to take aerial photographs of their property without a warrant and then used those photos as evidence against the couple in a nuisance action.

The Grand Traverse County Circuit Court said Todd and Heather Maxon did not have a reasonable expectation of privacy and Long Lake Township was within its rights to use the photographs to bolster its claim that the couple had violated a zoning ordinance and a prior settlement agreement.

But the Michigan Court of Appeals ordered the photos to be suppressed, saying this type of drone surveillance is illegal without a warrant or a traditional exception to the warrant requirement.

“Our holding today is highly unlikely to preclude any legitimate governmental inspection or enforcement action short of outright ‘fishing expeditions,’” Judge Kathleen Jansen wrote for the 2-1 majority in a published opinion. “If a governmental entity has any kind of nontrivial and objective reason to believe there would be value in flying a drone over a person’s property, as did plaintiff here, then we trust the entity will probably be able to persuade a court to grant a warrant or equivalent permission to conduct a search.”

Judge Amy Ronayne Krause joined Jansen in the decision, Long Lake Township v. Maxon.

In her dissent, Judge Karen Fort Hood noted that while she was also “deeply concerned about the particularly intrusive nature of drones as compared to other aircraft with respect to the Fourth Amendment and the right to be free from unreasonable searches,” those concerns weren’t enough “to sidestep the precedent by which we are bound.”

Aerial surveillance

In 2018, the township brought a civil action for a zoning ordinance violation against the Maxons. Aerial photographs taken over the years showed a “significant increase in the amount of junk being stored” on the Maxon’s property in violation of a 10-year-old settlement agreement.

The Maxons launched a flurry of objections; they moved to suppress the photos and all evidence the township acquired “from its illegal search of their property.”

They argued using a drone to take photos and conduct aerial surveillance of their property constituted an unlawful search in violation of the Fourth Amendment and did not comply with Federal Aviation Administration regulations.

Very little, if any, of the Maxon’s property is visible from the ground; but because it was visible from above, the township said there was no subjective reasonable expectation of privacy.

The Grand Traverse County Circuit Court agreed, and denied the motion to suppress. It added that FAA regulations are “safety rules and [did] not define the scope of the Fourth Amendment.”

The Maxons appealed.

Privacy expectations

Three cases from the U.S. Supreme Court laid the groundwork for the majority’s decision that unmanned drones doing low-altitude surveillance over a specific target — in this case, the Maxons’ property — interferes with a person’s reasonable expectation of privacy.

And while noncompliance with FAA regulations isn’t enough to show a Fourth Amendment violation, they are relevant to what a person “might reasonably expect” to happen overhead.

“[G]iven their maneuverability, speed, and stealth, drones are — like thermal imaging devices — capable of drastically exceeding the kind of human limitations that would have been expected by the Framers not just in degree, but in kind,” Jansen pointed out.

As such, intruding into the airspace above a person’s property is the same as intruding upon the land itself. In other words, flying a drone over someone’s property without permission or a warrant is trespassing.

Jansen said there was little meaningful distinction in this case between “just inside the property line” and “just outside the property line.”

The matter was decided on the Maxons’ “reasonable expectation of privacy — critical to which is that any reasonable person would have expected a low-altitude drone overflight to be trespassory and exceptional, whether the drone flew as high as a football-field length or flew directly up to an open bathroom window.”

Finally, reasonable privacy expectations don’t simply vanish because some new piece of technology makes it possible.

“The United States Supreme Court has, likewise, held that just because technology develops new and innovative ways in which a person’s privacy can be violated must not dictate whether that person retains a legitimate expectation of privacy and whether society should continue to recognize that expectation as reasonable,” Jansen concluded.