MI: Even if using a drone to take pictures in zoning dispute violated 4A, exclusionary rule does not apply, and the action below was remedial not punitive

The use of a drone to take pictures by a city contractor in case over a zoning ordinance violation probably did not violate any Fourth Amendment right. But even if it did, the exclusionary rule should not apply in this civil action. Long Lake Twp. v. Maxon, 2022 Mich. App. LEXIS 5544 (Sep. 15, 2022):

This case is before us on remand from our Supreme Court. In the original action, Todd and Heather Maxon appealed a trial court order denying their motion to suppress aerial photographs taken by Long Lake Township using a drone without the Maxons’ permission, a warrant, or any other legal authorization. The township relied on these photos to support a civil action against the Maxons for violating a zoning ordinance, creating a nuisance, and breaching a previous settlement agreement. Long Lake Twp v Maxon, 336 Mich App 521, 524-525; 970 NW2d 893 (2021) (Long Lake I). This Court determined that the use of the drone violated the Fourth Amendment and reversed the trial court order denying the Maxons’ motion to suppress. Id. at 525, 542. The Supreme Court vacated our previous opinion and remanded to this Court “to address the additional issue of whether the exclusionary rule applies to this dispute.” Long Lake Twp v Maxon, ___ Mich ___; 973 NW2d 615 (2022) (Long Lake II).

The exclusionary rule does not apply in this civil matter. Accordingly, even if the township violated the Maxons’ constitutional rights, suppression was not supported. We affirm the lower court’s order.

. . .

This is a civil case. The township seeks a declaratory judgment and to abate a nuisance. There are no police officers involved. Rather, the township enforces its zoning ordinances through the work of inspectors and zoning enforcement officers. The penalty that might be exacted for maintenance of a nuisance is a civil fine, but the township has sought no fine. Even if the township wanted to impose a fine, MCL 117.4q describes the fine as “civil.” “[P]rosecutions for violations of ordinances are in a sense criminal, but … such violations are not criminal cases within the meaning of the statutes and rules for review by [the Supreme] Court.” Huron Twp v City Disposal Sys, Inc, 448 Mich 362, 365; 531 NW2d 153 (1995). The unlikelihood of any penalty being exacted, and the fact that this zoning action is not coupled with a criminal prosecution of any sort, removes it from the realm of “quasi-criminal” matters.

Application of the Janis balancing test further establishes that the exclusionary rule has no place here.

Assuming that the drone search was illegal, it was performed by a private party. True, that person acted at the behest of a township official. But the exclusionary rule is intended to deter police misconduct, not that of lower-level bureaucrats who have little or no training in the Fourth Amendment. There is no likelihood that exclusion of the drone evidence in this zoning infraction matter will discourage the police from engaging in future misconduct, since the police were never involved in the first place. Rather, exclusion of the drone evidence likely will deter a township employee who works in the zoning arena from ever again resorting to a drone to gather evidence of a zoning violation. This is not the purpose of the exclusionary rule.

The cost of excluding this evidence is high. According to the record, the Maxons unsuccessfully attempted to fence in their illegal junkyard, signaling that they knew they were violating zoning rules or the settlement agreement, or both. Even without a fence, trees and vegetation make it difficult to see their property from ground level. Enforcement of the township’s zoning ordinance in this situation may depend on the use of drone evidence. And even assuming some marginal deterrent value impacting township officials, the benefit of suppression of the evidence is vastly outweighed by the public’s interest in enforcement of zoning regulations.

Finally, the Maxons have a powerful remedy for the alleged violation of their Fourth Amendment rights—a civil lawsuit sounding in constitutional tort. See Bauserman v Unemployment Ins Agency, ___ Mich ___; ___ NW2d ___, 2022 Mich. LEXIS 1364 (2022) (Docket No. 160813). In a criminal case, application of the exclusionary rule both punishes and penalizes the police. It also benefits the defendant, often by erasing the evidence needed to prosecute. A civil action for damages resulting from a constitutional violation also punishes and penalizes, achieving deterrence. We therefore respectfully disagree with our dissenting colleague that application of the exclusionary rule in this case is necessary to achieve deterrence. The social cost of excluding evidence in a case such as this would be substantial, however, as a public nuisance would potentially remain unabated and incapable of its own remedy.

The exclusionary rule is an essential tool for enforcing the meaning of the Fourth Amendment and discouraging law enforcement officers from trampling on constitutional rights. The rule has been roundly criticized, but survives as demonstrated in the majority and dissenting opinions in Utah v Strieff, 579 US 232; 136 S Ct 2056; 195 L Ed 2d 400 (2016). Here, the object of the state officials who allegedly violated the Maxons’ rights was not to penalize the Maxons, but to abate a nuisance through the operation of equitable remedies. The proceedings are remedial, not punitive. The exclusionary rule was not intended to operate in this arena, and serves no valuable function.

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