997 N.W.2d 250
Mich. Ct. App.2022Background
- Long Lake Township hired a private drone operator to photographally survey Todd and Heather Maxon’s property for alleged zoning violations, including vehicles and junk in the curtilage.
- The Township introduced the drone photographs in a civil zoning enforcement action seeking injunctive relief/abatement under local nuisance and zoning ordinances (which also authorize civil fines for violations).
- Defendants moved to suppress the drone photographs as the product of an unlawful, warrantless search; the trial court denied suppression.
- On appeal and remand, the opinion before us is Judge Jansen’s dissent arguing the evidence should be suppressed under the Michigan Constitution (Const 1963, art 1, § 11).
- Jansen contends the drone surveillance was policing (not supervisory), implicated the curtilage, and therefore required a warrant or recognized exception; she would reverse and remand to suppress the photos.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the exclusionary rule applies to a civil zoning enforcement action using municipal drone-collected photos | The Township says this is a civil remedy (injunctive), and federal precedent limits applying the exclusionary rule in civil proceedings | Maxon says the drone search was a Fourth Amendment/Const art 1 §11 search by the municipality and its agent, so illegally obtained evidence must be suppressed | Jansen: Exclusionary rule should apply; suppress drone photos obtained without a warrant in this quasi-criminal civil enforcement action |
| Whether U.S. Supreme Court precedents prohibiting extension of the exclusionary rule to civil proceedings control here | Township relies on Janis, Calandra, Lopez-Mendoza, Scott and related federal authorities limiting exclusionary-rule extension to civil contexts | Maxon argues those cases don’t address drone surveillance of curtilage by a municipal enforcement actor and that policing conduct is distinguishable from the federal contexts | Jansen: Federal cases are not dispositive here; they don’t involve state constitutional protections or municipal drone policing of curtilage |
| Whether Kivela (and agency-separation principles) preclude suppression when evidence was gathered by a different agency | Township analogizes Kivela (no suppression in civil tax proceeding where different agencies were involved) | Maxon emphasizes no agency separation here—the drone operator acted as Township’s agent—so Kivela is inapposite | Jansen: Kivela is distinguishable because here the same governmental entity (Township) conducted the surveillance; agency-separation rationale does not apply |
| Whether Michigan Constitution (Const 1963, art 1, § 11) supports suppression beyond federal Fourth Amendment rules | Township argues federal standards suffice and Michigan need not impose broader suppression | Maxon argues Michigan Constitution can provide greater protection and that suppression is an appropriate remedy for state-constitutional violations | Jansen: Michigan Constitution can and should furnish broader protection here; suppression under art 1, § 11 is proper for warrantless drone surveillance of curtilage |
Key Cases Cited
- Janis v. United States, 428 U.S. 433 (1976) (federal exclusionary rule historically not extended to civil proceedings)
- United States v. Calandra, 414 U.S. 338 (1974) (exclusionary rule does not apply in grand-jury proceedings)
- Mapp v. Ohio, 367 U.S. 643 (1961) (incorporation of Fourth Amendment against the states)
- One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965) (civil forfeiture proceedings may be criminal in nature for Fourth Amendment purposes)
- Pennsylvania Bd. of Probation & Parole v. Scott, 524 U.S. 357 (1998) (exclusionary rule not applied at parole revocation hearings)
- Kivela v. Dep’t of Treasury, 449 Mich. 220 (1995) (declining to extend exclusionary rule to civil tax proceeding where different agencies were involved)
- Sitz v. Dep’t of State Police, 443 Mich. 744 (1993) (Michigan Constitution can provide broader search-and-seizure protections than federal law)
- In re Jenkins, 437 Mich. 15 (1991) (Michigan has applied the exclusionary rule in some civil contexts)
- Lebel v. Swincicki, 354 Mich. 427 (1958) (evidence from unlawful search inadmissible in civil negligence action under state law)
- McNitt v. Citco Drilling Co., 397 Mich. 384 (1976) (discussing limits on use of unlawfully obtained evidence in civil litigation)
- People v. Goldston, 470 Mich. 523 (2004) (discussing 1961 Constitutional Convention intent and Michigan’s relation to federal exclusionary doctrine)