Michigan Supreme Court Allows Government To Conduct Warrantless Drone Surveillance Of Excess ‘Junk’ Cars On Couple’s Secluded Property

The Michigan Supreme Court has ruled in favor of government officials who used a drone to take aerial surveillance photographs of a couple’s private property without a search warrant in order to cite them for storing excessive, so-called “junk” cars on their secluded five-acre property.

In a unanimous ruling in Long Lake Township v. Maxon, the Michigan Supreme Court refused to exclude evidence which was obtained by government officials in violation of the Fourth Amendment, holding that the rule to exclude evidence obtained in violation of the Constitution does not apply to civil proceedings which only seek to require future compliance with zoning and nuisance ordinances. The Rutherford Institute had filed a joint amicus brief with Cato Institute, warning that a failure to apply the exclusionary rule could create a roadmap for government officials to circumvent Fourth Amendment protections.

“Americans are being swept up into a massive digital data dragnet that does not distinguish between those who are innocent of wrongdoing, suspects, or criminals. Aerial drone surveillance has become a de facto snitch for the police state,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “By subjecting Americans to surveillance without their knowledge or compliance, the government has erected the ultimate suspect society. In such an environment, there is no such thing as ‘innocent until proven guilty.’”

In 2007, Long Lake Township brought a zoning action against Todd Maxon, alleging that he was using his five-acre property as an illegal salvage or junkyard due to having automobiles which he fixed as a hobby. The case settled in Maxon’s favor with a dismissal and the Township agreeing to reimburse a portion of his attorneys’ fees. However, the government did not stop in its pursuit to penalize Maxon and his wife. In 2010, 2016, 2017, and 2018—without obtaining any search warrant—Township officials used a drone to take aerial photographs of the Maxons’ home property, which was not visible from the ground because it is blocked by buildings and trees. The Township then filed another zoning action in 2018, alleging that the Maxons had increased the scope of the junk cars and material on their property. The Maxons argued that the aerial surveillance and photographs by the drones of their property was an unlawful search in violation of the Fourth Amendment and should therefore be excluded from evidence because people do not reasonably expect drones with high powered cameras to surveil their private property at relatively low altitudes.

Noting the maneuverability, speed, and stealth of drones which can fly directly up to an open bathroom window, the Michigan Court of Appeals ruled that people have a reasonable expectation of privacy in their property against drone surveillance and that government officials must therefore obtain a warrant for such surveillance. However, although the Court of Appeals held that government officials had violated the Fourth Amendment, the court further held that the exclusionary rule does not apply in civil cases like this to suppress unconstitutionally obtained evidence. The Michigan Supreme Court affirmed.

Clark M. Neily, III and Laura A. Bondank of the Cato Institute and attorney Jared Harpt helped advance the arguments in the brief.