High Stakes in the Sky: Michigan Legal Battle Redefining Drone Law and Privacy Rights

Photo by Altaf Shah: Creative Commons

Decision in Michigan case could have big impact on future drone law

By DRONELIFE Feature Editor Jim Magill

An obscure legal case involving a zoning dispute in rural Michigan could have significant national impact on the rights that government regulators have to use drones to pursue enforcement actions.

The case, Long Lake Township vs. Maxon, also raises important issues regarding property owners’ Fourth Amendment rights to be free from unlawful searches, said Brent Skorup, a senior research fellow at the Mercatus Center at George Mason University.

“It’s become much more than a drone case. It’s now dealing with a fairly novel question for most courts,” Skorup said in an interview.

At the heart of the case is the question of whether a regulatory agency can use images obtained in drone overflights over private property as evidence as it seeks a civil enforcement action against the property owner. A second question is: if the courts rule that the drone images were obtained illegally, can the images still be used in a civil case filed against the property owner?

“This is a question with national implications, particularly as more and more municipalities and police departments use drones. But this goes beyond drones for routine civil investigations, and that could include things like child protective services,” Skorup said.

The case, which goes back about one and a half decades, involves an enforcement action initiated by the Long Lake Township zoning authority against Todd and Heather Maxon, who own a piece of property in that northern Michigan community.

The municipality had a reason to believe that the Maxons were operating an unpermitted salvage yard, by storing too many junked cars on their property, Skorup said. In 2008 Long Lake Township reached a settlement with the Maxons in which the property owners agreed not to add to the number of disabled cars on the property.

In order to ensure compliance with the settlement, the city hired a local drone operator to fly above the Maxons’ property, and collect photographic evidence as to the number of cars there.

“With these photographs as evidence the city brought another enforcement action against the Maxons a couple of years ago. The Maxons have fought the enforcement and among other things have alleged that because the city did not seek a warrant before getting the drone photographs this was a constitutional violation,” Skorup said.

Attorneys for the property owners argued that the drone-captured images were obtained illegally, and therefore should be excluded from use in the case. Illegally obtained evidence is typically excluded in criminal cases, but because the enforcement action involves a civil — rather than criminal — penalty, the exclusion rule might not apply, Skorup said.

The case has bounced around the Michigan court system for years, until last year it reached the state Supreme Court, which vacated previous rulings and remanded the case back to a lower court. The case is now back before the Supreme Court, which heard oral arguments in October and which is expected to issue a final ruling as early as next spring.

Drone Law and Privacy Rights: The Crux of the Case

Skorup, who is not directly involved in the litigation, said the case raises issues including whether a municipality has the right to fly a drone over private property in order to conduct surveillance and collect evidence, which can then be used against the property owners in civil court. He said the fact that the township did not obtain a search warrant prior to conducting the overflights is significant.

“I do view it as a search,” he said. The U.S. Supreme Court has decided that there are two circumstances where courts will find that an illegal search has been conducted.

“The first is when surveillance intrudes upon an expectation of privacy by someone, which could be relevant here,” Skorup said. The second circumstance occurs where there is a trespass by the government.

In its final decision in the case, the Michigan high court is expected to rule on whether flying a drone in low-altitude airspace above private property constitutes such a trespass, he said.

“This is a complicated area of law, and it’s a disputed area of law, but if they find that flying at low altitudes is a trespass, I think they’ll find that this was a search,” Skorup said. “But again, they could go the other way and say that there wasn’t a trespass in this case.”

A friend of the court brief, filed by the American Civil Liberties Union of Michigan and the Mackinac Center for Public Policy, argues against the indiscriminate use of drones by public agencies.

The filing argues that “Repeated and targeted low-altitude aerial surveillance … interferes with the Fourth Amendment right to be secure in our homes against unreasonable searches.”

In addition, the brief states that drones employed by public agencies “supercharge the capabilities and availability of aerial surveillance, and their investigative use by government actors requires courts to engage in a fresh application of Fourth Amendment protections.”

Patrick Wright, an attorney with the Mackinac Center for Public Policy, said the Fourth Amendment’s protections against unlawful searches increase the closer one gets to a private residence, and this applies to the use of drones by regulatory agencies.

“If they are using them to survey the curtilage, which is an area that immediately surrounds the home, then that is something that violates the Fourth Amendment,” he said.

Wright said rules surrounding the use of drones by regulatory agencies represents an unsettled area of the law.

“We’re at the beginning of this particular technology, and I do think that the law is going to evolve here in the next couple of decades.”

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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.

Miriam McNabb is the Editor-in-Chief of DRONELIFE and CEO of JobForDrones, a professional drone services marketplace, and a fascinated observer of the emerging drone industry and the regulatory environment for drones. Miriam has penned over 3,000 articles focused on the commercial drone space and is an international speaker and recognized figure in the industry.  Miriam has a degree from the University of Chicago and over 20 years of experience in high tech sales and marketing for new technologies.
For drone industry consulting or writing, Email Miriam.

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