A Problematic Precedent Against Privacy

[XLFD]

Your understood rights under the Fourth Amendment significantly changed last week with the Michigan Supreme Court finding unanimously in favor of a local government on Friday in a dispute over sending a drone to take pictures of a rural salvage yard without permission.

The plaintiff/appellee Long Lake Township used an unmanned drone to take aerial photographs of property owned by the defendants/appellants Todd and Heather Maxon without their prior permission.  The township relied on those photos to sue the Maxons, alleging that they violated a zoning ordinance, nuisance law, and a prior settlement agreement between the parties.  The Maxons moved to suppress the evidence and the trial court denied their motion. 

The Maxons (pictured above on their property) filed an interlocutory appeal and the Court of Appeals, in a 2-1 published opinion, reversed the trial court and remanded for an order suppressing the drone photos.  The MI Supreme Court initially ordered oral argument on the application to address whether the township’s actions violated the Fourth Amendment, but then ordered supplemental briefing on the issue of whether the exclusionary rule would apply in a zoning case.  The Supreme Court subsequently entered an order vacating its prior order and, in lieu of granting leave to appeal, vacating the judgment of the Court of Appeals, and remanding the case back to that court to address the issue of whether the exclusionary rule applies to this dispute. 

On remand, the Court of Appeals, in a 2-1 published opinion, affirmed the trial court, holding that the exclusionary rule did not apply and suppression was not supported even if the township violated the Maxons’ constitutional rights.  After hearing oral arguments back in October, the MiSC made a determination Friday that the Maxons' right to privacy was immaterial to the issuer, remanding back to the trial court their opinion that the exclusionary rule would not apply, and ergo the drone photos would be admissible.  

The case would unify politically diverse entities who saw the case as a bellwether to the right of privacy.  The American Civil Liberties Union (ACLU) would submit an amicus brief on behalf of the Maxons, as would the Cato and Rutherford Institutes, as well as The Electronic Frontier Foundation, the Mackinac Center for Public Policy, and the Project for Privacy and Accountability.  Because of the intrusive government surveillance, they also argued that any evidence used by the township should have not been used against them in what amounted to civil infractions.

The danger one sees in opinions like this and the mandate of a unanimous MiSC decision is that it didn't matter to these jurists that the Maxons' rights under the Fourth Amendment to privacy was violated or not, the information that the drones received by flying over their property's curtilage and invading a place where they would have an expectation of privacy was used against them after that privacy was invaded.  This seems to validate the absurd notion in the amicus brief filed on behalf of the township from the Michigan Municipal League and Michigan Townships Association that states the low-flying drones did not violate any 4th Amendment right.

From this point on, local governments of Michigan (and other states emboldened by this opinion) will have the power to go on fishing expeditions under the guise of looking for zoning and nuisance violations by using low flying drones in the places where people expect privacy, and if they find evidence that criminal activity may be afoot or to neutralize that privacy fence the local sorority put up in order to make it so they could tan all over, you're sure to see a big investment in drones by these agencies in the future.  They were just given the green light to do so by a Michigan court that lost sight of the big picture and the rights of individuals stated clearly in the US Constitution and the MIchigan Constitution.

[Willy]

I guess I don't understand. Are you saying the regular court ruled against the Maxons then the appeals court ruled for them, then the Supreme court sent it back to the appeals court who then reversed their decision which was then upheld by the Supreme court? Was this entire fiasco just about the photos taken and whether they could be used as evidence against the Maxons?  What is the end game here. Was it because drones were used to gather evidence or was it because picture were taken without a warrant?  Sorry I didn't read the court papers. Just didn't have time and I probably wouldn't understand them anyway.

Hasn't this already been decided by the U.S. Supreme Court? What's the difference between a low flying drone and a high flying satellite when it involves taking photos? What's the difference between a unmanned drone and a manned drone when taking photos? How about the difference between a drone and someone holding a camera on a pole looking into private property? I think this situation is far from being decided and will no doubt need to be clarified in more detail in order to comply with the U.S. Constitution.

[Freedom Seeker]

Good questions and points, Willy. Amazing X that you can write with such fluidity and analyze so many various political topics. Thanks for bringing this to attention ... hope you answer Willy's questions as I need that clarification too.

[XLFD]

It has been a case with staying power, the LT covered the same case back in 2021 when the MI Court of Appeals ruled that the Maxons' privacy was invaded and that the information gotten from the drone was unable to be used against them in what amounted to zoning issues.  In the interim, it has bounced back and forth between courts, the MiCOA going against it later on and so it is nigh impossible to condense it all without making it perhaps even more complicated.  

This ruling seems to indicate that if a local government intrusively violates your privacy rights under the 4th Amendment in order to show that you are in violation of a civil code, the knowledge gained by that violation of your rights can be used against you in a court deciding that civil issue.  Courts generally exclude such ill-gotten material in criminal cases as a matter of established law. 

The decision seems pretty scary, but what this ruling doesn't address is that you or the Maxons still have the recourse of suing your local government for violating your rights-- and if the local government agency prosecutes the civil infraction and takes it to court, you can establish a pretty good set of facts against them when you file your own case against them.  The Maxons really need to do that here, if they haven't started the ball rolling already.

[Willy]

So this is not about drones or there use. It's about how civil infractions are enforced. The Michigan Supreme Court is declaring that the 4th amendment does not apply when it comes to civil infractions.  Does this mean that the Constitution does not apply to all civil infractions? Obviously this must go to the US Supreme Court because this is far to important to let a state have the final say on this case. If this decision stands all it would take is for a complaint to be initiated regarding a civil infraction and those in authority can go forth and investigate that complaint without the need for a warrant or respecting the protection of the 4th amendment regarding search and seizures. I wonder if the taxpayers in Long Lake township realize they are footing the bill to pay for legal fees to help destroy our Constitutional Rights. Thanks X for alerting us regarding this situation.