On March 18, 2021, the Michigan Court of Appeals issued its published opinion in Long Lake Township v. Maxon, Mich App (2021) (Case No. 349230). In that case, Long Lake Township used a drone to take photographs of an outdoor fenced in area of a private residence for possible junk violations. The landowners asserted that they had an expectation of privacy in their fenced yard, and that the drone flight and photographs constituted an unlawful search in violation of the Fourth Amendment to the United States Constitution. The Court of Appeals agreed. The Court held that persons have a reasonable expectation of privacy in their property against aerial drone surveillance, and therefore a governmental entity seeking to conduct drove surveillance must obtain a search warrant or satisfy a traditional exception to the warrant requirement, such as obtain permission for surveillance from the property owner.
In a somewhat confusing fashion, the Court noted that surveillance photographs from piloted airplanes at higher elevations are lawful for surveillance purposes because such airplanes are in the “publicly navigable airspace.” Nevertheless, in the 2-to-1 split decision, the Court held that the lower elevation drone surveillance targeting a particular property is constitutionally prohibited. The Court of Appeals also indicated that in most cases, a municipality would be able to obtain a search warrant for a drone flight if probable cause of a violation is established.
The parties in this case had litigated an alleged violation of the Township’s junk ordinance and arrived at a settlement agreement which prohibited further accumulation of junk on the property. The Court noted that the warrantless surveillance was totally unnecessary because the parties could have, and should have, included an inspection provision in their settlement agreement that would have allowed for the Township’s drone inspections. Such permission from the homeowner for the Township to conduct drone inspections would make a warrant unnecessary, and avoid the unconstitutional search issues.
It is likely that this court decision will not be the last word on the matter. The Michigan Supreme Court and potentially the federal courts may revisit this issue in the future.