Can Governments Spy on Citizens Using Drones? Michigan Supreme Court Set to Decide Landmark Case
Michigan’s highest court has been asked to decide whether a local government violated a family’s constitutional rights when it hired a drone to perform surveillance on their property.
The case stems from a dispute between Long Lake Township and Todd Maxon, according to WPBN-TV.
Maxon had run afoul of the town over his car-repair hobby, which the township interpreted as an illegal junkyard. A 2008 settlement led to a deal in which the town dropped its case and Maxon agreed not to add more vehicles to his property.
Fast-forward to 2017, when town officials were told Maxon was breaking the agreement. The town hired a drone operator, who took photos and videos of the property. The images were later used to charge Maxon with a zoning violation.
In response, Maxon has alleged that the surveillance violated his Fourth Amendment rights.
“Runaway drone surveillance is pretty much the start of every dystopian science fiction novel,” Robert Frommer, senior attorney with the national nonprofit Institute for Justice, said. The nonprofit is representing Maxon.
“You know, the state that has failed us and that’s why we’re here, that’s why we’re trying to hold the line,” he said, noting that if the family loses its case at the state level, he is prepared to appeal to the U.S. Supreme Court.
Maxon said the surveillance, for which no warrant was sought, was intrusive.
“This is high-definition, zoom-in still photographs, video. It’s – people today, society today, is not ready to accept that as the norm. Nobody would want any drone watching you,” he said.
During one snooping session, he said, “I was outside. Their own video captures me outside. One time, I’m right out in my driveway walking out of my house, garage, with my young kid, my dogs in the yard.”
The township says it did what it had to do because Maxon was breaking his word. It says the drone was never on Maxon’s property, and there was no law in place to ban such surveillance. Michigan law allows drones to fly as high as 400 feet.
“Their backyard, the back five acres, was not concealed from the neighbors,” William Henn, an attorney representing Long Lake Township, said in court. “We have evidence that shows that all of this material that was accumulated was visible from adjacent properties.”
But Institute for Justice attorney Mike Greenberg said the drone’s spying was not a casual glance.
“What the drone did here, which was prowl all around the Maxons’ property for the purpose of gathering as much information about that property as possible is on the far end of the trespass side of that line,” Greenberg said during Wednesday’s court session.
According to Reason, the Michigan Supreme Court has seen the case before, and kicked it back to the Michigan Court of Appeals to decide whether the exclusionary rule, which bars evidence gathered illegally from being used, applies.
The court ruled that, in a civil matter, violating Fourth Amendment rights was not a concern.
“The exclusionary rule was not intended to operate in this arena, and serves no valuable function,” Chief Judge Elizabeth Gleicher wrote, adding, “The exclusionary rule is intended to deter police misconduct, not that of lower-level bureaucrats who have little or no training in the Fourth Amendment.”
The American Civil Liberties Union has intervened on the side of the Maxons.
A first-in-the-nation case is unfolding in Michigan. The state’s highest court is mulling whether a northern Michigan township violated a family’s Fourth Amendment rights by using a drone to monitor their private property.https://t.co/dRazop2sC8
— UpNorthLive News (@upnorthlive) October 19, 2023
In a statement on its website, the ACLU said that “this kind of novel, investigative, warrantless aerial surveillance violates the Fourth Amendment, and the township should be prohibited from using its unlawfully collected evidence in the zoning proceeding.”
“With rapidly advancing drone technology, aerial surveillance of this kind presents an ongoing threat to our individual right to privacy under the Fourth Amendment. No one reasonably expects that their local government will deploy investigative cameras in the sky to repeatedly record their behavior on their own private property,” the ACLU wrote.
“If the Township’s argument is accepted, it will not only profit from its privacy violations, but open the door to other local governments deploying cheap, pervasive, flying surveillance devices to surveil private property for the smallest civil infractions,” the ACLU said.
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