Michigan Supreme Court To Decide If Government Can Warrantlessly Spy on You With Drones

The state court of appeals held previously that unconstitutionally collected evidence could still be used for civil enforcement.

Last year, Michigan's Court of Appeals affirmed a township's right to spy on private property without a warrant. Now the state Supreme Court has decided to weigh in.

Todd and Heather Maxon live on a five-acre property in rural Long Lake Township on the northwest corner of Michigan's Lower Peninsula. Todd likes to work on cars, so they keep vehicles on the property but hidden from the road. In 2007, the township sued the Maxons for storing "junk" on their property, a zoning violation. The couple fought back and won: The township agreed to drop the case and reimburse attorney fees, and in exchange the Maxons would not expand their collection.

According to the township, neighbors complained that the Maxons were still acquiring cars. But the cars weren't visible from the road, making enforcement difficult. So the township hired a company to fly drones over the property and take pictures, which it did multiple times in the period from 2010 to 2018. The pictures allegedly showed that the number of vehicles had indeed expanded, so the township sued the Maxons for violating the previous agreement.

The Maxons moved to suppress the drone evidence as a Fourth Amendment violation, since the township never got a warrant. The trial court ruled against them, so they appealed to the Michigan Court of Appeals, which agreed with the Maxons. But on appeal from the township, the state Supreme Court remanded the decision back to the appeals court to determine "whether the exclusionary rule applies to this dispute." (The exclusionary rule prevents evidence from being used at trial if the government violated the Constitution to collect it.)

On its second bite at the apple, the township was successful: In a decision written by Chief Judge Elizabeth Gleicher, the appeals court determined that the "exclusionary rule does not apply in this civil matter." The inclusion of the word civil is important, because the decision hinged on the fact that this was not a criminal case. "The exclusionary rule is an essential tool for enforcing the meaning of the Fourth Amendment and discouraging law enforcement officers from trampling on constitutional rights," Gleicher wrote. But since the township intended "not to penalize the Maxons, but to abate a nuisance," she concluded, the exclusionary rule "serves no valuable function" in this case.

The court did not address whether the township had violated the Maxons' Fourth Amendment rights. In fact, it claimed that this didn't matter, declaring that the decision stood "even if the township violated the Maxons' constitutional rights."

The Institute for Justice (I.J.), which represented the Maxons in their initial litigation, appealed the decision to the Michigan Supreme Court in September 2022. The application noted that "constitutional protections are meaningless without remedies to enforce them" and that the appeals court's decision "would let government officials conduct warrantless drone surveillance with impunity—even though that surveillance violates the Fourth Amendment."

In May, the Michigan Supreme Court agreed to hear the case on appeal.

There are times when it makes sense to have different standards for civil and criminal cases—for example, the burden of proof in a civil trial is a "preponderance of the evidence," while a criminal verdict requires surety "beyond a reasonable doubt." But on an issue as crucial as the Fourth Amendment right to be free from "unreasonable searches and seizures," the motive seems unimportant: No officer of the state should violate your rights.