Township violated Michigan couple's privacy by using drone, court says

Beth LeBlanc
The Detroit News

A Michigan Court of Appeals panel ruled this week a northern Michigan township could not use drone photos it obtained without a search warrant to prove a resident wasn't complying with zoning rules. 

The panel ruled 2-1 that the use of a drone to photograph Todd and Heather Maxon's backyard violated the couple's "reasonable expectation of privacy" and Long Lake Township must obtain a search warrant if it wants to take photos. 

Novel ways to conduct surveillance do not diminish a person's "reasonable expectation of privacy," wrote Court of Appeals Judge Kathleen Jansen, an appointee of Democratic former Gov. Jim Blanchard, in a decision released Thursday. 

A Michigan court ruled that a township couldn't fly a drone over a resident's property and take photos without a search warrant.

"... any reasonable person would have expected a low-altitude drone overflight to be trespassory and exceptional, whether the drone flew as high as a football-field length or flew directly up to an open bathroom window," Jansen wrote. She was joined by Judge Amy Ronayne Krause, an appointee of Democratic former Gov. Jennifer Granholm.

The Maxons filed suit against the township in Grand Traverse County Circuit Court in 2018, arguing photos the township had taken of their property with a drone should be thrown out because they were an invasion of privacy and a violation of the Fourth Amendment, which protects people from "unreasonable searches and seizures."

The couple also argued the drone operator had violated Federal Aviation Administration guidelines when he flew the drone over the Maxons' property. 

The township referred to prior cases ruling photos from a manned aircraft were legal to support its actions. The township had taken the photos to show there was a "significant increase in the amount of junk" being stored at the property, violating the zoning ordinance banning illegal salvage or junk yards. 

The drone operator, the township said, had a constant visual line of sight on the drone and had kept below 400 feet of altitude in compliance with FAA regulations. 

Grand Traverse trial court denied the Maxons' request to suppress the images, "finding that defendants did not have a reasonable expectation to privacy."

But the appeals panel reversed that decision, noting drones were "intrinsically more targeted in nature than airplanes," the use of which to take photos has been upheld by other courts.

The Legislature also has ruled drones shouldn't be used to violate privacy or  "to perform an act that would be illegal if performed by the operator in person," Jansen wrote.

Jansen also noted that the township could have easily obtained a search warrant to take the photos with the evidence it said it already had, such as "unrelated site inspection photographs and complaints from defendants’ neighbors." 

"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 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," Jansen wrote.

In her dissent, Judge Karen Fort Hood said she also was concerned about the "intrusive nature of drones" but felt the court was bound by precedent allowing for the use of manned aircraft to take surveillance photos.

The U.S. Supreme Court has ruled items visible from a "public navigable airspace" are not protected by the Fourth Amendment, wrote Hood, who was elected to the Court of Appeals in 2002. Hood wrote she wasn't confident the distinction Jansen and Krause drew between manned and unmanned aircraft "should carry so much weight."

"... while I too have concerns about the potentially intrusive nature of drones, I would not categorically conclude that the use of drones without a warrant violates the Fourth Amendment where one is used to view what is otherwise plainly visible to the naked eye from airspace navigable by the public," Hood wrote.