Local Government Law Bulletin August 4, 2023 Kathryn Z. Stegink

Michigan Supreme Court Will Consider Application of Exclusionary Rule to Zoning Ordinance Enforcement Cases

In 2021, we wrote an article, Municipal Use of Drones: Recent Michigan Court Decision Restricts Governmental Use of Drones for Surveillance, which discusses a Michigan Court of Appeals’ opinion which held that a municipality’s use of a drone to surveil private property for ordinance enforcement purposes violated the Fourth Amendment of the United States Constitution and the Michigan Constitution when surveillance was conducted without a warrant or otherwise satisfied a traditional exception to the warrant requirement. The case was appealed to the Michigan Supreme Court, which remanded the case back to the Michigan Court of Appeals to consider the sole issue of whether or not the “exclusionary rule” applied to the case.

The exclusionary rule is an evidentiary rule which prohibits a government from using evidence gathered in violation of the United States Constitution (or the Michigan Constitution) in a lawsuit. The exclusionary rule applies to criminal cases. For example, if police conduct an unlawful search without a warrant, prosecutors cannot use any evidence the police found during the search. Previously, it has only been applied to civil cases in very limited circumstances. The United States Supreme Court has generally refused to apply the exclusionary rule to civil cases.

On September 15, 2022, the Michigan Court of Appeals concluded that the exclusionary rule does not apply to a zoning ordinance enforcement case. Because the Court determined the exclusionary rule did not apply, even if the drone surveillance was unlawful, evidence gathered by drone surveillance would not be suppressed.

On June 3, 2023, the Michigan Supreme Court agreed to hear an appeal of the Michigan Court of Appeals second opinion in Long Lake Twp v Maxon. It will decide whether the exclusionary rule may be applied in zoning ordinance enforcement cases. Regardless of the decision of the Michigan Supreme Court, an employee or agent of a municipality who conducts an unlawful search may be held liable in a civil action for damages resulting from a constitutional violation even if the evidence is not suppressed. Municipal officials should continue to take care to ensure that evidence for a zoning ordinance enforcement case is obtained in a lawful and constitutional manner.

If you have questions regarding the acquisition or use of evidence for purposes or ordinance enforcement, please contact Mika Meyers to consult with one of our municipal attorneys.

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