The reasonable expectation of privacy and drone surveillance
The Fourth Amendment to the United States Constitution guarantees the right of persons to be secure against unreasonable searches and seizures.
A search occurs when the government intrudes on an individual’s reasonable or justifiable expectation of privacy.
Whether an expectation of privacy is reasonable depends on the answers to two questions.
First, did the individual exhibit an actual subjective expectation of privacy?
Second, was the actual expectation one that society recognizes as reasonable?
In the past few years, the use of drones has become increasingly popular for a number of reasons including their being able to fly almost anywhere at a low altitude and take aerial photos and videos.
As a result, a number of legal issues have arisen including the applicability of the Fourth Amendment and the reasonable expectation of privacy when a governmental agency causes drone pictures of a person’s property to be taken without a search warrant.
This issue has not yet been decided by the United States Supreme Court.
However, on March 18, 2021 the Michigan Court of Appeals addressed the issue in Long Lake Township v Maxon.
The case involved the defendants allegedly violating township ordinances and a 2008 settlement agreement by having too many junk cars and materials on their property.
A civil suit was filed by the township with the evidence including drone photographs of the defendants’ property.
The defendants claimed that these photographs were a violation of their Fourth Amendment Rights as there was no search warrant and they had a reasonable expectation of privacy as very little of their property was visible from the ground.
After reviewing the facts and United States Supreme Court case law (which allows aerial photographs without a warrant using an airplane or helicopter), the court held in a 2-to-1 decision that low-altitude, unmanned, specifically targeted private property drone surveillance, intrudes into a person’s reasonable expectations of privacy, such surveillance implicates the Fourth Amendment and is illegal without a warrant or a traditional exception to the warrant requirement. There was a strong dissent.
This was the first appellate decision nationally to recognize a landowner’s Fourth Amendment air rights as to drones.
On March 16, 2022, the Michigan Supreme Court ordered oral arguments and supplemental briefing on the township’s application for leave to appeal. We’ll see what happens.