Michigan drone photography privacy dispute returns to court – yet again

They’re back… The Michigan couple that has been battling Long Lake Township officials over drone photography of their yard to substantiate allegations it was being illegally used as a dump are going back to court again – this time to have the evidence invalidated with arguments the UAV flights violated their Fourth Amendment rights.

The saga originates in 2007, when officials in northern Michigan’s Long Lake Township sought to enforce zoning laws prohibiting residents Todd and Heather Maxon from using their property as a de facto dump for several vehicles. An out-of-court settlement was struck on the understanding the stockpiling did not expand – a condition neighbors reported violated after additional cars appeared. 

To prove that was so, town officials hired a Michigan drone photography service provider to take shots of the Maxon land on several occasions between 2010 and 2018, the images from which serving as the basis for a case filed to force the couple into compliance. Husband and wife went to court themselves to push back.

Read: Drone videos capturing banned motocross races spark legal battle 

Against expectations, they scored an initial victory in 2021 when Michigan’s Court of Appeals agreed with the Maxons’ arguments Long Lake Township had not sought a warrant to take the drone photographs, which constituted a violation of their Fourth Amendment protections against illegal searches and seizures. That victory, however, was relatively short-lived.

The state’s supreme court ordered appellate judges to determine whether a rule excluding illegally obtained evidence from being used in trial was applicable to the Maxon case. Noting that the litigation is a civil procedure, the Court of Appeals reasoned the exclusionary rule didn’t apply to photos taken during the Long Lake Township drone outings.

“The United States Supreme Court has explained that the purpose of the exclusionary rule is twofold: to deter police misconduct, and to provide a remedy where no other remedy is available,” wrote Chief Judge Elizabeth Gleicher in what was presumably intended to make the legal reasoning involved clear. “When analyzed under the federal or the Michigan Constitution, suppression of the drone evidence does not serve these goals. And so, the evidence can be used in a civil proceeding.”

Read: Michigan judge blocks county’s drone ban on public properties 

The Maxons, however, are not ready to give up, and now have a new ally in attacking Long Lake Township’s drone photography as unconstitutional.

The Institute for Justice, described by some online resources as a libertarian nonprofit public interest law firm, is taking that ruling to Michigan’s Supreme Court with arguments that appellate judges limited their decision to the particulars of the exclusionary rule, and ignored the possible Fourth Amendment implications of the contested drone flights by local officials.

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

It’s still unclear whether the legal yoyoing will end up being ruled in favor of drone dispatching officials or private citizens opposing aerial observation, but it seems likely lawyers will eventually find a way to make a lot of money in a court marathon before it ends.