Back in 2021, we wrote an article regarding a Michigan Court of Appeals’ opinion in the case of Long Lake Township v Maxon, which held that a municipality’s use of a drone to surveil private property for zoning ordinance enforcement purposes violated the Fourth Amendment to the United States Constitution, and its counterpart in the Michigan Constitution, when such surveillance was conducted without a warrant or otherwise satisfying a traditional exception to the warrant requirement. Following that Court of Appeals’ decision, the case was appealed to the Michigan Supreme Court, which, in turn, remanded the case back to the Court of Appeals to consider the sole issue of whether or not the “exclusionary rule” applies to the case.
Where it is applicable, the exclusionary rule requires suppression of any evidence obtained from an unlawful search. United States Supreme Court decisions pertaining to the exclusionary rule indicate that it serves the dual purposes of deterring police misconduct and providing a remedy to those whose constitutional rights were violated by an unlawful search or seizure where no other remedy is available. Between those two purposes, the United States Supreme Court has emphasized that the deterrence of police misconduct is the more important one.
While the exclusionary rule is applicable in criminal cases, it has only been applied to civil cases in very limited circumstances. On remand, the Court of Appeals in the Long Lake Township case reviewed United States Supreme Court cases regarding the exclusionary rule, and found that the only civil case in which the United States Supreme Court applied the exclusionary rule was a civil forfeiture action in which an automobile that was subject to forfeiture as a result of a criminal prosecution was worth more than the fine that could have been imposed as punishment for the alleged crime. In all other civil cases in which the United States Supreme Court was asked to apply the exclusionary rule, it has refused to do so.
In its (second) opinion in the Long Lake Township case, the Court of Appeals decided that the exclusionary rule does not apply to a zoning ordinance enforcement case. In reaching its conclusion, the Court determined that the purposes of the exclusionary rule would not be served by its application in the case, and there was no compelling reason to expand use of the exclusionary rule to zoning ordinance enforcement actions. However, although the Court of Appeals decision prevents the exclusionary rule from suppressing unlawfully obtained evidence in a zoning ordinance enforcement case, an employee or agent of a municipality who conducts an unlawful search could be held liable in a civil action for damages resulting from a constitutional violation. Therefore, municipal officials should nevertheless take care to ensure that evidence to be used in a zoning ordinance enforcement case is gained in a lawful and constitutional manner.
If you have questions regarding the acquisition or use of evidence for the purpose of ordinance enforcement, please contact Mika Meyers to consult with one of our municipal attorneys.