Michigan Supreme Court could decide whether government drone spying is legal without warrant

Can government use warrantless drone surveillance to enforce zoning rules?

An appeal filed with the Michigan Supreme Court says the government must get a warrant before it can surveil private property for evidence.

The Institute for Justice, a public interest law firm, says the government violated the Fourth Amendment when it used warrantless drone surveillance to snap pictures of Todd Maxon’s 5-acre property in Long Lake Township where he repairs cars, as proof of zoning violations.

“Americans have a right to be secure in their homes and backyards without being watched by a government drone,” IJ Senior Attorney Robert Frommer said in a statement. “The difference between a peeping tom and a lawful investigation is a judicially authorized warrant.”

The government brought a code enforcement lawsuit against Maxon in 2007, claiming he illegally stored “junk” on the property. The new lawsuit says the vehicles aren't visible "from any ground-level public vantage point."

Maxon won the lawsuit settled in 2008, $3,000 in attorney fees, and a promise that the government would “not to bring further zoning enforcement action against Defendant Maxon based upon the same facts and circumstances which were revealed during the course of discovery … .”

In 2018, the government cited Maxon again after it hired a drone operator for $1,200 to enforce alleged code violations. The lawsuit says Long Lake surveilled the property three times over two years.

“If the government wants to conduct intrusive surveillance like this, the Fourth Amendment requires that it get a warrant,” lawyer Mike Greenberg of the Institute for Justice said in a statement. “The zoning authority’s failure to even try to get one shows their indifference to Michiganders’ constitutional rights.”

In September, the Michigan Court of Appeals decided that even if the drone flights violated the Maxons’ Fourth Amendment rights, the government should still be allowed to use the evidence obtained from the unconstitutional search in court.

The court said the Fourth Amendment’s protection doesn’t apply to investigators hunting for zoning code violations, and that the evidence obtained via drone can be used in civil code enforcement proceedings.

The appeal says the Fourth Amendment applies to all government officials, and if the lower court’s decision stands, then the the government would have unfettered discretion to spy.

“This is bigger than just some drones flying over my home,” Maxon said in a statement. “If I’m not safe from this kind of surveillance, nobody will be.”

The appeal asks the Michigan Supreme Court to hold that the government violated Maxon’s Fourth Amendment rights and can’t use its illegally obtained photos and videos to punish them in court.