SEARCH & SEIZURE: Government Use of Drones

[KLAW Blog]

Drone Surveillance and the Fourth Amendment: A New Case

In a recent decision, the Michigan Court of Appeals held that persons have a reasonable expectation of privacy in their property against drone surveillance conducted without a warrant or pursuant to a recognized exception to the warrant requirement. The case, Long Lake Township v Maxon, involved a civil zoning dispute in which the Township used a drone to take aerial images of the Maxon property without consent or any other specific legal authorization.

The Court of Appeals found that drone surveillance of private property is necessarily more intrusive and “qualitatively different” than the use of airplanes and helicopters permitted under California v Ciraolo and Florida v Riley. The Court noted that drones can fly at lower altitudes and hover in place, allowing them to collect more detailed images and information about private property.

The Court also found that the use of low-altitude unmanned drones to conduct targeted surveillance of private property is more like the use of thermal imaging devices found to be a “search” in Kyllo v United States. In Kyllo, the Supreme Court held that the government’s use of a thermal imaging device to monitor the radiation of heat from a home was a Fourth Amendment search. The Court reasoned that the government’s use of the thermal imaging device was a physical intrusion into the home’s curtilage, which is an area around the home that is considered to be part of the home itself.

The Court of Appeals in Long Lake Township v Maxon found that the Township’s use of a drone to take aerial images of the Maxon property without consent was a similar physical intrusion into the Maxon property. The Court also noted that the existing law in Michigan recognizes a reasonable expectation of privacy and other legal protections against drone misuse.

The decision in Long Lake Township v Maxon is significant because it is one of the first cases to address the Fourth Amendment implications of drone surveillance. The Court’s decision provides clear guidance to law enforcement and other government agencies that they cannot use drones to conduct surveillance of private property without a warrant or a recognized exception to the warrant requirement.

Implications for Law Enforcement

The decision in Long Lake Township v Maxon has important implications for law enforcement agencies that use drones for surveillance purposes. Law enforcement agencies should review their policies and procedures to ensure that they are consistent with the Fourth Amendment requirements set forth by the Court of Appeals.

In general, law enforcement agencies should obtain a warrant before using a drone to conduct surveillance of private property. However, there are a few limited exceptions to the warrant requirement, such as when the surveillance is conducted in response to an emergency or when it is conducted in a public area where there is a diminished expectation of privacy.

Law enforcement agencies should also be aware that the Fourth Amendment may apply to the use of drones even if the surveillance is not conducted directly by the agency itself. For example, if a law enforcement agency contracts with a private company to conduct drone surveillance on its behalf, the agency may still be required to comply with the Fourth Amendment.

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The decision in Long Lake Township v Maxon is a significant development in the law of drone surveillance. The Court’s decision provides clear guidance that the Fourth Amendment protects people from warrantless drone surveillance of their private property. Law enforcement agencies and other government agencies should review their policies and procedures to ensure that they are consistent with the Court’s decision.

The Court found the use of low-altitude unmanned
drones to conduct targeted surveillance of private property
to be more like the use of thermal imaging devices found
to be a “search” in Kyllo v United States when used to
monitor the radiation of heat from a home, and further
noted the existing recognition of a reasonable expectation
of privacy and other legal protections against drone misuse
as found in MCL 259.322(3) and MCL 259.320(1) (See Below)

UNMANNED AIRCRAFT SYSTEMS ACT (EXCERPT)
Act 436 of 2016

259.322 Operation of unmanned aircraft system; harassment, violation of order, or invasion of privacy prohibited; definition; individual registered as sex offender.

Sec. 22.

  (1) A person shall not knowingly and intentionally operate an unmanned aircraft system to subject an individual to harassment. As used in this subsection, “harassment” means that term as defined in section 411h or 411i of the Michigan penal code, 1931 PA 328, MCL 750.411h and 750.411i.

  (2) A person shall not knowingly and intentionally operate an unmanned aircraft system within a distance that, if the person were to do so personally rather than through remote operation of an unmanned aircraft, would be a violation of a restraining order or other judicial order.

  (3) A person shall not knowingly and intentionally operate an unmanned aircraft system to violate section 539j of the Michigan penal code, 1931 PA 328, MCL 750.539j, or to otherwise capture photographs, video, or audio recordings of an individual in a manner that would invade the individual’s reasonable expectation of privacy.

  (4) An individual who is required to register as a sex offender under the sex offenders registration act, 1994 PA 295, MCL 28.721 to 28.736, shall not operate an unmanned aircraft system to knowingly and intentionally follow, contact, or capture images of another individual, if the individual’s sentence in a criminal case would prohibit the individual from following, contacting, or capturing the image of the other individual.

UNMANNED AIRCRAFT SYSTEMS ACT (EXCERPT)
Act 436 of 2016

259.320 Criminal liability; offense committed with aid of an unmanned aircraft system; exception.

Sec. 20.

  (1) A person is guilty of an offense committed with the aid of an unmanned aircraft system if the unmanned aircraft system is under the person’s control and the activity performed with the aid of the unmanned aircraft system would have given rise to criminal liability under the penal law of this state if it was performed directly by the person without the aid of an unmanned aircraft system.

  (2) Notwithstanding subsection (1), and except as provided in sections 21 and 22 and section 45a(1) of the Michigan penal code, 1931 PA 328, MCL 750.45a, solely flying an unmanned aircraft system through navigable airspace in accordance with federal law does not give rise to criminal liability under the penal law of this state.

 

Did You Know

Michigan State Police Legal Updates

MSP Legal Update No. 153 (01/2023)

• Search & Seizure: The smell of marihuana, standing alone, no longer constitutes probable cause to search for that substance
• Vehicle Code: Violation for impeding traffic requires evidence the accused’s conduct actually affected the normal flow of traffic.

Legal Update No. 153 (01/2023)

 

MSP Legal Update No. 150 (01/2022)

• Vehicle Code: Persons under the age of 21 may be prosecuted for operating a motor vehicle with the presence of marihuana in their system
• Criminal Law: Ethnic intimidation based on gender includes harassing or intimidating another person because of the actual or perceived gender of that person.

Legal Update No. 150 (01/2022)

 

Legal Update No. 148 (09/2021)

Statutes: Code of Criminal Procedure amended to prohibit issuance of appearance tickets to a person arrested for an “operating while intoxicated” offense; Juvenile Law: Individuals who are 17 years of age to be treated as juveniles in criminal proceedings rather than automatically being treated as adults; Did You Know: The mere presence of an unidentified cocaine metabolite is insufficient to prove operation of a vehicle with the presence of “any amount” of cocaine in the body.

Legal Update No. 148 (09/2021)

 

Legal Update No. 147 (03/2021)

Statutes: The Code of Criminal Procedure amended to require persons arrested for certain misdemeanor and ordinance violations not exceeding 1-year in jail to be released from custody upon issuance and service of an appearance ticket; Vehicle Code: The Michigan Vehicle Code amended to eliminate the requirement to provide an audible signal when overtaking another vehicle.

Legal Update No. 147 (03/2021)

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