MI: City’s use of drone photos in zoning dispute violated homeowner’s REP

The township’s use of a drone to fly over defendant’s property to take pictures for a zoning dispute violated their reasonable expectation of privacy. The state legislature said that they have one from drone usage. Long Lake Twp. v. Maxon, 2021 Mich. App. LEXIS 1819 (Mar. 18, 2021):

As defendants tacitly concede, Ciraolo and Riley establish that defendants could not have reasonably expected the activities and items on their property to be protected from public or official observation made by a human being from the publicly navigable airspace. Conversely, unrefuted photographic exhibits of defendants’ property taken from the ground seem to establish a reasonable expectation of privacy against at least casual observation from a non-aerial vantage point. We conclude that; much like the infrared imaging device discussed in Kyllo; low-altitude, unmanned, specifically-targeted drone surveillance of a private individual’s property is qualitatively different from the kinds of human-operated aircraft overflights permitted by Ciraolo and Riley. We conclude that drone surveillance of this nature intrudes into persons’ reasonable expectations of privacy, so such surveillance implicates the Fourth Amendment and is illegal without a warrant or a traditional exception to the warrant requirement.

Although noncompliance with FAA regulations does not establish a Fourth Amendment violation, such regulations are relevant to what a person might reasonably expect to occur overhead. Persons may, absent extraordinary circumstances, reasonably expect the law to be followed, even if they know the law is readily capable of being violated. See Camden Fire Ins Co v Kaminski, 352 Mich 507, 511; 90 NW2d 685 (1958); People v Stone, 463 Mich 558, 565-567; 621 NW2d 702 (2001). The FAA regulations, 14 CFR part 107, require drone operators to keep drones within visual observation at all times, fly drones no higher than 400 feet, refrain from flying drones over human beings, and obtain a certification. Such rules reflect the fact that drones are qualitatively different from airplanes and helicopters: they are vastly smaller and operate within little more than a football field’s distance from the ground. A drone is therefore necessarily more intrusive into a person’s private space than would be an airplane overflight. Furthermore, unlike airplanes, which routinely fly overhead for purposes unrelated to intentionally-targeted surveillance, drone overflights are not as commonplace, as inadvertent, or as costly. In other words, drones are intrinsically more targeted in nature than airplanes and intrinsically much easier to deploy. Furthermore, given their maneuverability, speed, and stealth, drones are—like thermal imaging devices—capable of drastically exceeding the kind of human limitations that would have been expected by the Framers not just in degree, but in kind.

Although the United States Supreme Court rejected the ancient understanding that land ownership extended upwards forever, landowners are still entitled to ownership of some airspace above their properties, such that intrusions into that airspace will constitute a trespass no different from an intrusion upon the land itself. United States v Causby, 328 US 256, 260-265; 66 S Ct 1062; 90 L Ed 1206; 106 Ct. Cl. 854 (1946). Drones fly below what is usually considered public or navigable airspace. Consequently, flying them at legal altitudes over another person’s property without permission or a warrant would reasonably be expected to constitute a trespass. We do not decide whether nonpermissive drone overflights necessarily are trespassory, because we need not decide that issue. Although a physical trespass by a governmental entity may constitute a violation of the Fourth Amendment, a trespass into an open field might not implicate the Fourth Amendment. See United States v Jones, 565 US 400, 404-411; 132 S Ct 945; 181 L Ed 2d 911 (2012). Furthermore, we think there is little meaningful distinction for present purposes between “just inside the property line” and “just outside the property line.” We decide this matter based upon defendants’ reasonable expectation of privacy—critical to which is that any reasonable person would have expected a low-altitude drone overflight to be trespassory and exceptional, whether the drone flew as high as a football-field length or flew directly up to an open bathroom window. The Legislature has already stated that drones may not be used to violate a reasonable expectation of privacy, MCL 259.322(3), or to perform an act that would be illegal if performed by the operator in person, MCL 259.320(1).

The Fourth Amendment requires persons both to establish a legitimate expectation of privacy and to establish that society is prepared to recognize that expectation as reasonable. People v Mead, 503 Mich at 212-213. As noted, just because it is well-known that a particular intrusion into privacy is technologically feasible does not cause a person’s reasonable expectation of privacy to evaporate. Stone, 463 Mich at 562-567. The United States Supreme Court has, likewise, held that just because technology develops new and innovative ways in which a person’s privacy can be violated must not dictate whether that person retains a legitimate expectation of privacy and whether society should continue to recognize that expectation as reasonable. Kyllo, 533 US at 33-36. Implicit in both Stone and Kyllo is that there would have historically been an expectation of privacy that becomes called into question solely by a change in the available technology — which is clearly the situation here. See also Carpenter, 585 US at _; 138 S Ct at 2213-2217 (slip op at pp 5-12). We believe it would be unworkable and futile to try to craft a precise altitude test. Rather, we conclude that persons have a reasonable expectation of privacy in their property against drone surveillance, and therefore a governmental entity seeking to conduct drone surveillance must obtain a warrant or satisfy a traditional exception to the warrant requirement.

We also observe that plaintiff’s warrantless surveillance was totally unnecessary. The parties could easily have—and likely should have—included a monitoring or inspection provision in their settlement agreement. Aside from that, as the United States Supreme Court observed, the quantum of evidence necessary to establish probable cause to conduct an administrative inspection is more than “none,” but is less than what might be required to execute a criminal search warrant. Camara, 387 US 528-539. By plaintiff’s own account, it had concrete evidence, in the form of unrelated site inspection photographs and complaints from defendants’ neighbors, that defendants were violating the settlement agreement, violating the zoning ordinance, and creating a nuisance. Our holding today is highly unlikely to preclude any legitimate governmental inspection or enforcement action short of outright “fishing expeditions.” If 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, as did plaintiff here, then we trust the entity will probably be able to persuade a court to grant a warrant or equivalent permission to conduct a search.

See Cato.org: Does the 4th Amendment Prohibit Warrantless Drone Surveillance? by Matthew Feeney; Reason: Government Drone Overflights May Violate Fourth Amendment, Trigger Exclusionary Rule by Eugene Volokh; Techdirt: State Appeals Court Says Flying A Drone Over Someone’s Property Violates The Fourth Amendment by Tim Cushing

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