Michigan Supreme Court Rules on the Application of Exclusionary Rule to Zoning Ordinance Enforcement Cases

On May 3, 2024, in Long Lake Twp v Maxon, the Michigan Supreme Court concluded that the exclusionary rule does not apply in nuisance and zoning ordinance cases that only seek prospective injunctive relief.  This case involved a municipality’s use of a drone to take aerial photos and videos of a property for ordinance enforcement purposes.  The property owners argued that the drone usage violated the search and seizure provisions of the United States and Michigan constitutions.

The Court did not decide whether drone usage for ordinance enforcement purposes violates the prohibition against unlawful searches and seizures.  In a previous decision in Long Lake Twp v Maxon, it instructed the Michigan Court of Appeals to consider whether the exclusionary rule applied to the case.  Under the exclusionary rule, if a court determines that a search is unlawful, any evidence gathered during that search cannot be used in court.  The exclusionary rule has long been used for criminal cases, but not for ordinance enforcement cases.

On September 15, 2022, the Court of Appeals concluded that the exclusionary rule does not apply to a zoning ordinance enforcement case.  The Court of Appeals’ decision was appealed to the Michigan Supreme Court.  The Michigan Supreme Court determined that the exclusionary rule did not apply to the nuisance and zoning ordinance cases based on the type of relief sought by Long Lake Township.  The Township did not ask for a fine, but asked for an injunction to prevent the property owners from continuing to store junk on their property in the future.  The Court specifically stated that the exclusionary rule does not apply because the Township asked for prospective injunctive relief.  It is not clear whether the exclusionary rule would apply if a municipality does ask for a fine in addition to injunctive relief.  Until this question is answered, municipalities may avoid the risk by only asking for prospective injunctive relief for cases that involve photos or videos gathered by a drone.

Because the  videos and photos taken from the drone would not be excluded from consideration under the exclusionary rule, the Court did not decide whether use of a drone to surveil private property constitutes an unlawful search.

If you have any questions regarding the Michigan Supreme Court’s decision or the use of drones in zoning ordinance enforcement, please contact a lawyer in our firm’s Local Government Law Practice Group.