by Scott McClallen
The Michigan Supreme Court declined to say whether the government can use drones to spy on people without a warrant.
The unanimous Friday ruling follows a 17-year dispute between residents Todd and Heather Maxon and Long Lake township officials who say the 5-acre residential property is being used as an illegal junkyard.
The 18-page ruling written by Judge Brian Zahra affirmed the Court of Appeals ruling and remanded the case to the trial court for further proceeding.
The verdict hinged on whether the exclusionary rule applied – a court-created concept that evidence acquired illegally should be inadmissible, most often applied to criminal cases involving forfeiture.
The Maxons argued the local government hiring drone operators to find proof of zoning violations was an illegal search because they didn’t have a warrant.
The state’s top court ruled the exclusionary rule doesn’t apply to civil enforcement regarding local zoning and nuisance ordinances that seek only injunctive relief.
“The contemporary understanding of the exclusionary rule is that it is a judge-made rule intended to deter law enforcement misconduct in the context of the Fourth Amendment,” Zahra wrote. “It is not a constitutional right, and it is not intended to vindicate a defendant’s constitutional rights.”
The nonprofit Institute for Justice represented the Maxons. IJ Attorney Mike Greenberg said the state’s top court “blessed warrantless surveillance in the name of code enforcement.”
“Courts ordinarily order evidence from unconstitutional searches excluded, to disincentivize officials from violating our Fourth Amendment rights,” Greenberg said in a statement. “The court’s holding creates a massive hole in that rule, removing that incentive for officials who pursue civil, rather than criminal, violations.”
Todd Maxon said he was “incredibly disappointed” by the ruling.
“Like every American, I have a right to be secure on my property without being watched by a government drone,” Todd said in a statement.
Long Lake Township officials haven’t yet responded to a request for comment. Bill Henn, a lawyer for Long Lake Township, had argued the defendants didn’t exhibit any expectation of privacy by enacting fences, roofs or awnings on their 5 acres of property, sparking complaints from neighbors.
IJ President and Chief Counsel Scott Bullock called on state lawmakers to close a “loophole” he called “warrantless surveillance.”
“This ruling demonstrates why courts must seriously engage with constitutional questions,” Bullock said in a statement. “By not addressing the question at the heart of this case, the court has created a giant loophole putting all Michiganders at risk of warrantless surveillance.”
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Scott McClallen is a staff writer covering Michigan and Minnesota for The Center Square. A graduate of Hillsdale College, his work has appeared on Forbes.com and FEE.org. Previously, he worked as a financial analyst at Pepsi. In 2021, he published a book on technology and privacy. He co-hosts the weekly Michigan in Focus podcast.
