In 2008, a Long Lake Township couple, Todd and Heather Maxon, settled a zoning ordinance violation lawsuit with the township out of court.
The settlement called for the township to pay $3,200 toward the Maxons' legal bills, court records show, and to agree not to levy any further zoning enforcement against the couple, that depended on the same facts and circumstances revealed during the disagreement.
The Maxons, in that initial case, admitted no liability, court records show.
Ten years later, however, in 2018, Long Lake Township officials hired a contractor to fly a drone equipped with a camera over the Maxons' property and take photographs.
Township officials then used some of those photographs, taken without the Maxons' permission, as evidence in a second lawsuit filed against the couple in 13th Circuit Court, records show.
The Maxons hired Traverse City attorney, Bill Burdette, who argued flying a drone over someone's backyard to take photos of possible zoning violations was government overreach.
Yet, there was a "significant increase in the amount of junk" being stored at the property since the 2008 settlement, township officials said, which violated anew the township's zoning ordinance prohibiting salvage or junk yards.
As evidence of this, the township introduced in court aerial photos it said were taken in 2010, 2017 and 2018; the 2010 photo was obtained from Google, court records show, with the 2017 and 2018 photos from a contracted drone flyover.
Traverse City attorney Todd Millar, who did not return a call seeking comment, argued on behalf of the township that this was a not a civil rights violation, since the Maxons' property was clearly visible from above.
Burdette argued this use of the drone specifically violated his clients' Fourth Amendment rights, hence the photos should be suppressed. Thirteenth Circuit Court Judge Thomas Power disagreed and in 2019 denied the Maxons' request.
A transcript shows Power said he was troubled by previous split decisions by the state COA in deciding admissibility, though ultimately denied the Maxons' motion.
"That is not to say that it's okay to fly a drone in low altitude over people's property, you know, in terms of trespass or other rights, but that's not really what we're on here," Power said, of the arguments in the circuit court case.
The Maxons appealed and in a 2-1 decision, a three-judge panel of the Michigan Court of Appeals last year reversed Power's decision, ruling that municipalities cannot fly a drone over someone's property without a warrant.
Just because a new capability exists, the majority ruling by Judges Kathleen Jansen and Amy Ronayne Krause stated, that does not mean a homeowner's privacy rights should be placed at the mercy of advancing technology.
"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 the 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," the judges stated in their published opinion.
COA panel Judge Karen M. Fort Hood dissented, pointing out that the U.S. Supreme Court previously ruled property plainly visible from a publicly navigable airspace is generally not subject to Fourth Amendment — the right to be protected against unreasonable searches.
"I am not confident the distinction between manned and unmanned aircraft should carry so much weight," the judge stated in her dissent, adding there was no evidence the drone was flying at a particularly low altitude.
Millar had made a similar argument on behalf of the township.
Airspace above their homes is a place where people have no reasonable expectation of privacy, regardless of the technology to access it.
"While I think it is interesting in that it involves a technology that is new to the case law ... airplanes weren't invented nor were helicopters when the Fourth Amendment was adopted," Millar said, during November 2020 oral arguments in front of the COA.
Millar, on behalf of the township, in April 2021 appealed the COA's decision to the state Supreme Court, which earlier this month remanded the case back to the Court of Appeals with a specific instruction:
"In lieu of granting leave to appeal, we VACATE the judgment of the Court of Appeals and REMAND this case to that court to address the additional issue of whether the exclusionary rule applies to this dispute," a May 20 order states.
COA judges were further instructed by state supreme court judges to consider two previous decisions, Pennsylvania Board of Probation and Parole v. Scott, decided by the U.S. Supreme Court in 1998, and Kivela v. Dept. of Treasury, decided by the Michigan Supreme Court in 1995.
Both cases consider whether or not Fourth Amendment protections — the right of people to be secure "in their persons, houses, papers, and effects, against unreasonable searches and seizures" — apply to civil as well as criminal cases.
In the Pennsylvania Board of Probation and Parole case, judges ruled evidence seized in violation of the Fourth Amendment does not apply to parole revocation hearings.
In other words, it did not have to be excluded from a prosecution.
In the Kivela case, the court decided tax assessments cannot be based on unlawfully seized evidence, nor can an unlawful search by law enforcement provide the trigger for a tax assessment.
Meaning, this evidence was excluded and could not be used in court.
This exclusionary rule is viewed by the judiciary as a deterrent to unlawful behavior by law enforcement, Burdette said.
Requiring the government to get a warrant before flying a drone over someone's house fulfills that deterrent effect, Burdette said.
"My argument is, look, it's the only thing that John Q. Public has to keep the government from flying over your house for any number of reasons," Burdette said.
The government could expand those reasons far beyond zoning violations Burdette predicted, into how many cannabis plants a homeowner is growing, how many dogs they own, and what newspapers, books and magazines someone is reading in their own home.
"I can see us going all the way," attorney William Burdette said last week of the possibility the case makes its way to the U.S. Supreme Court.
Two opposing amicus curiae briefs — legal arguments filed by an individual or an organization who are not parties to the case but support one side or another — have so far been filed.
Lawyers on behalf of The Michigan Townships Association, based in Lansing, support Long Lake Township's authority to use the drone photos, while lawyers writing for the Institute for Justice, based in Arlington, Virginia, support the Maxons' contention the drone flyover was an illegal search.
The Michigan Townships Association's brief states that drone use by municipalities is increasing, and that government units use drones not just for code enforcement, but also for fire protection, police investigation, tax assessing, GIS mapping and aerial surveys.
"The importance of this case to municipal and constitutional jurisprudence cannot be overstated," MAT attorney Robert Thall wrote.
Institute for Justice attorneys agreed with the constitutional importance, but not with MTA's arguments.
"Without the exclusionary remedy, government investigators in this state would have little incentive not to deliberately conduct warrantless drone surveillance on any Michigander they want," Institute for Justice attorneys argued.
A date for a COA judges panel to re-consider the case has not yet been set.
© 2022 The Record-Eagle (Traverse City, Mich.). Distributed by Tribune Content Agency, LLC.
