Michigan Supreme Court Says Fourth Amendment Doesn’t Apply To Government Drone Use In Civil Cases

Bit of a weird one here.

So, there's the assumption made by all cops and most courts that any area visible to passersby does not have an expectation of privacy. That means front yards, open garages, etc. Courts and cops have mostly agreed this expectation of privacy does not suddenly appear no matter how long the government stares at publicly visible areas with unblinking eyes... like surveillance cameras mounted on nearby utility poles or what have you.

There's also a general consensus that things that can't be seen by people on the ground, but can be seen by people who happen to fly over your property, have no expectation of privacy either. This isn't quite as permissive as the ground-level plain view stuff, but more than a few judges have agreed that anything viewable by the public without actually trespassing on property is pretty much free of Fourth Amendment concerns.

Here's where this case goes a bit outside of the normal privacy expectations. This is the final ruling [PDF] in a lawsuit brought by Todd and Heather Maxon. The Maxons allegedly continued to fill their property with junked cars despite being ordered not to buy the Long Lake Township government. The township alleged zoning ordinance violations, nuisance law violations, and was apparently also in possession of complaints filed by the Maxon's neighbors.

The township had also secured a settlement agreement from the Maxons in 2008 - one that said they wouldn't keep committing these civil ordinance violations. Apparently, the Maxons violated the agreement, along with the listed township statutes.

Those violations led to the township doing this, which resulted in the civil ordinance case in which the Maxons attempted to get the drone footage booted out of court. (h/t FourthAmendment.com)

Because most of the Maxons' property could not be seen from the street, the township hired a drone operator to take aerial photographs and video of the Maxons' property. The photographs and video-which were taken without the Maxons' permission and without a warrant-allegedly showed that the dimensions of their junkyard had increased, contrary to the terms of the settlement agreement. The Maxons moved to suppress the aerial photographs and all other evidence obtained by the township from use of the drone, asserting that the search was illegal under the Fourth Amendment of the United States Constitution.

It's a good point to make and a worthy endeavor, even if it didn't work out here. How far can the government intrude (albeit by drone) into a person's property before it becomes a Fourth Amendment issue? While it's true the same property could be viewed by anyone flying overhead, unless they had a particular interest in that person's property, the observation would be momentary and most likely not recorded.

This was an effort to obtain evidence of wrongdoing in hopes of building a criminal case against the Maxons. That's what the state Appeals Court noticed when the case was sent to it for review.

In a split decision, the Court of Appeals, JANSEN, P.J., and RONAYNE KRAUSE, J. (FORT HOOD, J., dissenting), reversed, holding that the targeted drone surveillance of the Maxons' property violated the Fourth Amendment because it intruded into an area where the Maxons had a reasonable expectation of privacy and because the township obtained the photographs without a warrant and no traditional exception to the warrant requirement applied.

And that would seem to make sense under the circumstances. If the government is seeking to obtain evidence to build a criminal case, it should need to obtain a warrant to view areas it could not normally see without intruding on the premises. Flying over it seems like a great way to avoid the warrant requirement, but it doesn't work if the courts determine there's an expectation of privacy in the viewed areas.

But that wasn't the end of it. The state Supreme Court took up the government's appeal, read a few briefs, and sent it back down to the Appeals Court for a determination as to whether the evidence obtained by the drone could be suppressed. Despite finding the drone footage was obtained illegally, the Appeals Court decided suppression wasn't [cough] warranted.

[T]he Court of Appeals concluded that the cost of suppressing the evidence (i.e., the inability of the township to enforce its zoning regulations) would outweigh any deterrence benefits. After reaching that conclusion, the Court of Appeals held that the exclusionary rule did not apply and that the photographs and video could not be suppressed regardless of whether the township unreasonably searched the Maxons' property

That left the issue in constitutional limbo: the way the footage was obtained violated the Fourth Amendment but the appellate court decided the Constitution didn't apply when [squints at previous paragraph] the government had zoning regulations to enforce.

OK. Now what?

Well... this... apparently:

Because we hold that the exclusionary rule does not apply to this civil proceeding to enforce zoning and nuisance ordinances, we decline 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. The exclusionary rule operates to exclude or suppress evidence in certain legal proceedings if the evidence is obtained in violation of a person's constitutional rights.

The contemporary understanding of the exclusionary rule is that it is a judge-made rule intended to deter law enforcement misconduct in the context of the Fourth Amendment. It is not a constitutional right, and it is not intended to vindicate a defendant's constitutional rights.Michigan aligns with courts across the nation in that, as a general matter, we apply the exclusionary rule in the context of criminal proceedings. This Court has rarely applied the rule in civil proceedings. In fact, outside of the criminal context, this Court has only ever applied the rule to searches related to quasi-criminal legal matters or to the warrantless extraction of blood from a person.

And that's the holding, for what it's worth. The government cannot do this sort of thing in a criminal case. It can, however, do this sort of thing in cases where it's enforcing laws, but not seeking criminal charges, imprisonment, or any of those other things associated with criminal cases.

Which would be fine if there wasn't such a fine line between enforcement actions. Some criminal acts are dispensed by the collection of fines or fees, like traffic violations. Some ordinance enforcement efforts can result in jail time. In this case, the township wanted to obtain and enforce an injunction forcing the Maxons to comply with a previous civil settlement. To obtain one, the government engaged in a warrantless search of the couple's property. It could not have performed this act on foot with police officers and/or code enforcement personnel without a warrant. But it can perform the same search by drone, even though - as the Appeals Court noted - this sort of warrantless search was a Fourth Amendment violation.

The second review tossed out the Fourth Amendment and the return to the Supreme Court resulted in this mess of a ruling that appears to say an expectation of privacy doesn't exist when the government attempts to enforce certain laws. It's internally inconsistent. And none of that's cleared up by the state court's concluding statement that in cases like these, it's ok for the ends to justify the means.

Applying the exclusionary rule would prevent the Township from effectuating its nuisance and zoning ordinances-a serious cost.

Somehow, I doubt that. The township still has options. This just happened to be the easiest one. But that's the law of the land in Michigan. Unless this case is appealed to US Supreme Court (and it's unlikely to be appealed, much less taken up by SCOTUS), that's how things will remain: the government can violate reasonable expectations of privacy in some law enforcement efforts but not others. And that means all cops have to do to get around warrant requirements is use whatever handy civil ordinance it comes across to indulge in warrantless searches.