Local Government Law Bulletin May 14, 2021 Alexander P. Henderson

Municipal Use of Drones: Recent Michigan Court Decision Restricts Governmental Use of Drones for Surveillance

A recent Michigan Court of Appeals decision issued on March 18, 2021 held that “persons have a reasonable expectation of privacy in their property against drone surveillance.” Accordingly, the Appeals Court decision establishes that governmental entities may not use a drone to conduct surveillance of private property without first obtaining a warrant or otherwise satisfying a traditional exception to the warrant requirement under the Fourth Amendment to the United States Constitution and its counterpart in the Michigan Constitution. As a result of the Court’s decision, the legal standard applicable to a government entity’s use of drones for surveillance purposes is different from (and more restrictive than) the standard applicable to human-piloted aircraft such as airplanes and helicopters.

The Court ruling arises from the case of Long Lake Township v. Maxon. The case involved allegations by Long Lake Township that defendants were storing junk on their property in violation of the Township’s Zoning Ordinance and a prior settlement agreement between the parties related to a previous alleged Zoning Ordinance violation. To support its allegations against the defendants, the Township submitted aerial photographs as evidence showing an increased amount of junk being stored on the defendants’ property. The aerial photographs were captured by a drone that was operated by a person who testified that he kept a clear line of sight on the drone while it took the photographs, and that he kept the drone at an altitude of less than 400 feet in order to comply with FAA regulations.

The Michigan Court of Appeals noted that prior decisions by the United States Supreme Court permitted surveillance of individuals’ private property that was conducted by human-operated aircraft. In the case of California v Ciraolo, the U.S. Supreme Court held that the Fourth Amendment was not violated when police used an airplane to conduct a warrantless, aerial observation of a home’s fenced-in backyard from 1,000 feet above the ground. Additionally, in the case of Florida v Riley, the U.S. Supreme Court held that police observation of a greenhouse, which was located in the curtilage of an individual’s home, from a helicopter flying at an altitude of 400 feet was not an unreasonable search under the Fourth Amendment. In both Ciraolo and Riley, the U.S. Supreme Court found no Fourth Amendment violation because it determined the aerial surveillance methods involved in those cases did not implicate a reasonable expectation of privacy.

However, the Michigan Court of Appeals’ opinion in Maxon distinguishes the drone surveillance at issue in that case as “qualitatively different” from the aerial observation methods involved in Ciraolo and Riley. The Maxon opinion points out that airplanes “routinely fly overhead for purposes unrelated to intentionally-targeted surveillance,” whereas drone flights are less common, more targeted in nature, and much easier and cheaper to use. The Court also noted the “maneuverability, speed, and stealth” of drones.

The altitudes at which drones are permitted to operate are a significant factor that the Maxon opinion considers. FAA regulations require drones to be flown lower than 400 feet above the ground, which is a little more than the length of a football field. Airplanes and helicopters, on the other hand, are generally required to fly at greater heights, in the public or navigable airspace. Although the operation of airplanes and helicopters in public airspace above private property is not considered to be trespassory, the U.S. Supreme Court has acknowledged that an intrusion into the airspace above private property at a sufficiently low altitude may constitute a trespass. Because drones are legally required to fly at altitudes lower than what is usually considered to be public or navigable airspace, the Court in Maxon reasoned that “flying [drones] at legal altitudes over another person’s property without permission or a warrant would reasonably be expected to constitute a trespass,” but the Court did not decide whether such drone flights necessarily are trespassory. Rather than create “a precise altitude test” to determine the heights at which drone surveillance may or may not be conducted, the Court instead concluded that, in general, individuals have a reasonable expectation of privacy against drone surveillance of their property. Therefore, as the Maxon opinion states, “a governmental entity seeking to conduct drone surveillance must obtain a warrant or satisfy a traditional exception to the warrant requirement.” Alluding to the fact that a zoning ordinance violation is a civil infraction, and not a criminal offense, the Court noted that the evidentiary burden to establish probable cause for an administrative inspection to verify compliance with a zoning ordinance is less than what is required to execute a criminal search warrant. The opinion goes on to state, “[i]f 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, . . . [then] the entity will probably be able to persuade a court to grant a warrant or equivalent permission to conduct a search.”

As a result of the Maxon case, municipalities may have questions about the legal implications of using drones for ordinance enforcement purposes, including whether a warrant will be required for a particular use of a drone. Accordingly, we recommend that our municipal clients who wish to use drones for surveillance or law enforcement purposes consult with legal counsel at Mika Meyers for guidance on the applicable legal requirements and implications.

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