970 N.W.2d 893
Mich. Ct. App.2021Background
- Long Lake Township used an unmanned drone to observe and photograph the Maxons’ property, which had a privacy fence and contained structures the Maxons expected would not be open to public view.
- The Maxons moved to suppress the drone-captured images/evidence on Fourth Amendment grounds; the trial court denied the motion.
- On appeal, the Michigan Court of Appeals majority concluded the drone observation was distinguishable from Supreme Court precedents allowing aerial observation and required a warrant; Judge Fort Hood dissented.
- The dissenting opinion (Fort Hood) argues the drone observed only what was plainly visible from publicly navigable airspace, used commercially-available technology, complied with FAA guidance, and thus did not violate the Fourth Amendment.
- Key legal dispute centers on whether aerial drone surveillance that captures what is visible to the naked eye constitutes a "search" when conducted without a warrant, and whether Kyllo/Stone or Ciraolo/Riley control.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether drone observation of the yard behind a privacy fence is a Fourth Amendment search | Township: No — the images show what was plainly observable from public airspace; no warrant required | Maxon: Yes — drones are smaller, quieter, and more intrusive than manned aircraft; expectation of privacy remains | Majority: Drone use here distinguished from Ciraolo/Riley; warrant required. Dissent: No search; would affirm denial of suppression. |
| Whether FAA compliance or public navigable airspace analysis controls the Fourth Amendment inquiry | Township: FAA/public-use of airspace shows observation was from a vantage point public could use; FAA rules not dispositive but support non-probative intrusion | Maxon: FAA rules don’t resolve privacy expectations; technological capacity can render observation invasive | Majority: Focused on privacy intrusion and technology; FAA compliance not dispositive. Dissent: Emphasizes public availability and FAA guidance to support no search. |
| Applicability of Kyllo (thermal/advanced tech) vs. Ciraolo/Riley (plain-view aerial observation) | Township: Ciraolo/Riley apply because images showed what naked eye could see using publicly available drone tech | Maxon: Kyllo/Stone apply because drone-enabled imaging can reveal details not observable from ground and can be especially intrusive | Majority: Treated drone use as more akin to Kyllo/Stone (warrant required). Dissent: Ciraolo/Riley control if tech is in general public use and views are of the naked-eye type (no search). |
| Whether general public availability of drone technology defeats a reasonable expectation of privacy | Township: Drone technology is widely available, commonly flown at or below 400 feet, and not specialized in this case | Maxon: Public availability alone shouldn’t eliminate reasonable expectation of privacy in the home/curtilage | Majority: Concerned drone discreteness may create new privacy risks; did not accept public-availability argument as dispositive. Dissent: Public availability and similar capability to aircraft supports no reasonable expectation of privacy. |
Key Cases Cited
- Katz v. United States, 389 U.S. 347 (establishes the reasonable-expectation-of-privacy test for Fourth Amendment searches)
- California v. Ciraolo, 476 U.S. 207 (aerial observation from public navigable airspace of what is openly visible is not a search)
- Florida v. Riley, 488 U.S. 445 (reaffirming that observations from aircraft in navigable airspace generally do not constitute a search)
- Kyllo v. United States, 533 U.S. 27 (use of technology not in general public use to obtain details of the home is a search presumptively requiring a warrant)
- People v. Stone, 463 Mich. 558 (discusses expectation of privacy in communications in light of technological eavesdropping)
- People v. Antwine, 293 Mich. App. 192 (articulates two-part test for expectation of privacy: subjective expectation and societal recognition of reasonableness)
- People v. Barbee, 325 Mich. App. 1 (observations open to public view generally do not implicate Fourth Amendment constraints)
- People v. Woodard, 321 Mich. App. 377 (reiterates that reasonableness under the Fourth Amendment is assessed by the totality of circumstances)