Township violated Michigan couple's privacy by using drone, court says

[Pappy]

Quick background - Neighbors complained about zoning violations for a residence. Township used a drone to gather evidence. Property owner contested the evidence as a 4th Amendment violation. The court agreed with the Township. Owner appealed the court's decision.

The Michigan Court of Appeal sided with the property owner.

The panel ruled 2-1 that the use of a drone to photograph Todd and Heather Maxon's backyard violated the couple's "reasonable expectation of privacy" and Long Lake Township must obtain a search warrant if it wants to take photos.

Novel ways to conduct surveillance do not diminish a person's "reasonable expectation of privacy," wrote Court of Appeals Judge Kathleen Jansen, an appointee of Democratic former Gov. Jim Blanchard, in a decision released Thursday.

"... 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," Jansen wrote. She was joined by Judge Amy Ronayne Krause, an appointee of Democratic former Gov. Jennifer Granholm.

This opinion is particularly troublesome - "any reasonable person would have expected a low-altitude drone overflight to be trespassory and exceptional". I hope the Township will appeal and not let this stand, otherwise anytime a drone flies over private property the operator could be charged with trespassing.

Sources:

Township violated Michigan couple's privacy by using drone, court says

The judges ruled a Northern Michigan township could not use drone photos it obtained without a search warrant to prove a resident wasn't complying with zoning rules

www.detroitnews.com

The full court opinion from the Appeals Court - http://publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20210318_C349230_47_349230.OPN.PDF

 

[maintenanceguy]

There should be a distinction between a flyover for the purposes of flying over and a flyover for the purposes of looking at things people are trying to keep private. There should also be a distinction between a private citizen observing something and the government searching for something without a warrant.

I think the flight violated a right to privacy - even though no such right is enumerated at the US federal level or in my state. Maybe Michigan recognizes privacy as a right - which it should.

I should be able to fly over your home as the airspace isn't part of your property. If I accidentally observe something, no harm is done. I shouldn't be able to search your backyard with a drone. I agree with the decision.

 

[Blairsville]

Let me give you my experience. Long before we had drone issues, I was a NE Florida LEO. This was back around 1975. While handling a call on the elevated front porch of a residence, I observed what appeared to be several marijuana plants behind a 6’ wooden privacy fence next door. To keep this short, the courts ruled our actions was illegal.

 

[Vic Moss]

This really shouldn't be an issue. LEOs need a warrant to gather evidence. And the FAA agrees with them in the "State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet" (https://www.faa.gov/uas/resources/policy_library/media/UAS_Fact_Sheet_Final.pdf).

This is the key section:

"EXAMPLES OF STATE AND LOCAL LAWS WITHIN STATE AND LOCAL GOVERNMENT POLICE POWER
Laws traditionally related to state and local police power – including land use, zoning, privacy, trespass, and law enforcement operations – generally are not subject to federal regulation. Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109, 1115 (9th Cir. 2002). Examples include:
• Requirement for police to obtain a warrant prior to using a UAS for surveillance.
• Specifying that UAS may not be used for voyeurism.
• Prohibitions on using UAS for hunting or fishing, or to interfere with or harass an individual who is hunting or fishing.
• Prohibitions on attaching firearms or similar weapons to UAS."
​

This should have come as a surprise to no one. LEOs need a warrant. This should not affect what we do for a living. Civilian UAS operations aren't help to the same standards as those done for evidence gathering by Law Enforcment.

 

[bcfd29]

I think your conflating two separate issues: one being the requirement of the state/government (governmental entity) to only submit lawfully obtained evidence in a legal proceeding (civil or criminal) and another regarding the rights of UAV operators. Apples and pineapples, not even close.

Anyone conducting any investigation needs to follow both the letter and intent of the law concerning what is and is not legally able to be obtained without a search warrant.

PLAIN VIEW is a precedent mentioned above re: seeing stuff from an elevated deck/balcony not able to be seen in plain view from the outside at ground level.

A private drone operator enjoys the protections of the federal legislation stated above to NOT be in violation of trespass for an overflight; it is all about intent here.

As this remains an emerging technology/tool for use in collecting this kind of data (photo/video/ other sensors) a lot of interesting court cases will emerge until users test the system and either get away with warrantless evidence being admitted or kicked. I can't help but think these users in MI already knew this and tried a novel approach to solve their problem and got caught taking a short cut (hey, lets play with the drone!).

This is a GREAT lesson for those using this technology for furthering some type of investigation, and NOT AT ALL relevant to recreational or non-investigative users. My friends doing LEO and public safety training need to start a UAV law and court case blog for their customers, so they do not repeat the same errors.

In a truly emergent situation, something termed/deemed exigent circumstances, a warrantless flight can be used to survey and gain situational awareness during the event, which later can be submitted as evidence, but it is always a good idea to go get a warrant while you still have the scene secured, once the emergency stabilizes, and recapture whatever you need for court.

 

[anotherlab]

Anyone conducting any investigation needs to follow both the letter and intent of the law concerning what is and is not legally able to be obtained without a search warrant.

A private drone operator enjoys the protections of the federal legislation stated above to NOT be in violation of trespass for an overflight; it is all about intent here.

Those two sentences sum it up succinctly.

 

[Rhonda&Tom]

Quick background - Neighbors complained about zoning violations for a residence. Township used a drone to gather evidence. Property owner contested the evidence as a 4th Amendment violation. The court agreed with the Township. Owner appealed the court's decision.

The Michigan Court of Appeal sided with the property owner.


This opinion is particularly troublesome - "any reasonable person would have expected a low-altitude drone overflight to be trespassory and exceptional". I hope the Township will appeal and not let this stand, otherwise anytime a drone flies over private property the operator could be charged with trespassing.

Sources:

Township violated Michigan couple's privacy by using drone, court says

The judges ruled a Northern Michigan township could not use drone photos it obtained without a search warrant to prove a resident wasn't complying with zoning rules

www.detroitnews.com

The full court opinion from the Appeals Court - http://publicdocs.courts.mi.gov/OPINIONS/FINAL/COA/20210318_C349230_47_349230.OPN.PDF

I think that the Appellate court was right on, based on my law school education and my following of the caselaw over the past 40 years regarding Fourth Amendment violations.

 

[Rhonda&Tom]

There should be a distinction between a flyover for the purposes of flying over and a flyover for the purposes of looking at things people are trying to keep private. There should also be a distinction between a private citizen observing something and the government searching for something without a warrant.

I think the flight violated a right to privacy - even though no such right is enumerated at the US federal level or in my state. Maybe Michigan recognizes privacy as a right - which it should.

I should be able to fly over your home as the airspace isn't part of your property. If I accidentally observe something, no harm is done. I shouldn't be able to search your backyard with a drone. I agree with the decision.

I agree that if it were a private person doing the flyover, it would not be a 4th Amendment violation.

 

[Tiger64]

So if for instance the neighbour was taking pics of their own property and the property they were complaining about was visible in the background, would that be admissible, if they gave it to leo?

 

[Pappy]

So if for instance the neighbour was taking pics of their own property and the property they were complaining about was visible in the background, would that be admissible, if they gave it to leo?

To expand on this more, suppose there was a public park or public building on a hill overlooking the property. Would it still be illegal for the Township to obtain the same evidence similar to what the drone captured by using a ground based camera?

 

[Ol' Sparky]

Every year the city flies over the whole area taking high definition aerial pictures of every square inch within city limits. They can be accessed by anyone online, including police and bylaw officers, and compare property changes, looking for illegally cut trees or structures built without proper permits, or what-have-you. Does that mean my privacy is being invaded by having a record of how my property has changed over the years? Good luck with that.

 

[Heavydpj]

I agree with Judge Hood's spot-on dissent. I think the court erred and it will be overturned on appeal En Banc.

The crux of the court's argument is here:

"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."

Truth is, visual observation using a stock drone is EXACTLY like Ciraolo and RIley.

First, the court erred in concluding that drones in general are technologically equivalent to the thermal imager used in Kyllo. Unless the drone carried a thermal imager, it is not. The things seen on a stock drone are all visible to the naked eye. No invisible spectra, seeing through walls, laser bouncing off windows, or any alien technology was used. Just good old eyesight. Unless specially modified, stock drones (as in this case) are not "capable of drastically exceeding ... human limitations ..." any more than an observer in a helicopter flying at 400' AGL.

Second, the court erred in saying that drones fly below navigable airspace. This is a fundamental lack of understanding regarding the laws and rules governing airspace in America. Per the FAA, ALL airspace in America is navigable, from the surface to space. The fact that drones are GENERALLY limited to 400' and therefore are not included in "navigable airspace" if just flat wrong. That limitation is also waiverable (14 CFR § 107.205(i)). In all likelihood, the area around the residence in this care was most likely plain old class G airspace - unquestioningly navigable, unquestioningly under FAA jurisdiction, but just uncontrolled.

Third, the court erred by ignorantly mis-stating FAA regulations, while minimizing and mis-characterizes drone operations. The fact that the court acknowledged a drone pilot needs a certification, the FAA regulates commercial use, and that a drone operator must comply with FAA regulations indicate that a drone IS like a plane. For example, An FAA certified drone operator is LITERALLY called a "Remote Pilot In Command" (14 CFR § 107.19). The FAA LITERALLY refers to drones as "Aircraft" (14 CFR § 107.3). An FAA certified drone operator is LITERALLY called a "Remote Pilot In Command" (14 CFR § 107.19). Drones need to be registered with the FAA as an aircraft in order to be operated in the US (14 CFR § 91.203). Soon, drones will be required to squawk a transponder code as part of the National Aerospace System. They're not aircraft? YGBSM!

It doesn't matter that an FAA certified UAS pilot can't fly a helicopter - neither can a fixed wing pilot (and vice versa). In fact, a helicopter or commercial multi-engine pilot can't fly a UAS commercially unless they have the appropriate FAA certification.

As such, the analysis kicks it out of the crazy new technology issue that was present in Kyllo, and back in into the visible with the naked eye issue in Riley, and the cases loses.

http://publicdocs.courts.mi.gov/opinions/final/coa/20210318_c349230_48_349230d.opn.pdf

 

[Chip]

Truth is, visual observation using a stock drone is EXACTLY like Ciraolo and RIley.

Here is one difference. A helicopter hovering over your house at 400 feet is easily seen and heard. A drone is not. That is what makes it a unique surreptitious surveillance tool in hands of law enforcement especially in combination with exemption from broadcast ID.

 

[Heavydpj]

Here is one difference. A helicopter hovering over your house at 400 feet is easily seen and heard. A drone is not. That is what makes it a unique surreptitious surveillance tool in hands of law enforcement especially in combination with exemption from broadcast ID.

I disagree. Drones are not silent. My Mavic 2 Pro (the quietest one I have) is still easily seen and heard, even at 400' AGL. In any case, one could easily extend the standoff distance (vertically or horizontally) in a fixed wing or helicopter to the point where it's no longer heard, but binoculars would be needed, and it's still find under Ciraolo and RIley.

However, that was not the issue in Kyllo. The issue in Kyllo was, "... device(s) ... not in general public use" (i.e. technology assisted visualization of temperature fluctuations on the outside of a house). Drones, using visible spectrum cameras, are widely available to the public.

 

[Chip]

I disagree. Drones are not silent. My Mavic 2 Pro (the quietest one I have) is still easily hear. In any case, one could easily extend the standoff distance (vertically or horizontally) in a fixed wing or helicopter to the point where it's no longer heard, but binoculars would be needed, and it's still find under Ciraolo and RIley.

The Supreme Court noted in Ciraolo case that the law enforcement officer could see the plants from the plane at 1000 feet with "his naked eye." Is it not a stretch to equate observation by naked human eye from airplane with observation by secret, remotely piloted, mechanical/electronic eye in the sky?

 

[Heavydpj]

The Supreme Court noted in Ciraolo case that the law enforcement officer could see the plants from the plane at 1000 feet with "his naked eye." Is it not a stretch to equate observation by naked human eye from airplane with observation by secret, remotely piloted, mechanical/electronic eye in the sky?

Not in this case. The issue is whether or not the technology is widely available to the public. Additionally, a drone is not secret.

 

[Chip]

The issue is whether or not the technology is widely available to the public.

I respect your view but it is directly contrary to Michigan appellate court ruling which included the statement that, in Kyllo (thermal imaging case), the Supreme Court concluded:

that mere existence and availability of technological advancements should not be per se determinative of what privacy expectations society should continue to recognize as reasonable. Although again discussing only privacy within the home, the Court emphasized that the homeowner should not be “at the mercy of advancing technology” that might eventually be able to see directly through walls outright. The development of historically-novel ways to conduct unprecedented levels of surveillance at trivial expense does not per se reduce what society and the law will recognize as a reasonable expectation of privacy.

Additionally, a drone is not secret.

I would say that whether a drone is a secret or being used secretly depends on circumstances. But IMHO, any drone that is specially exempted from broadcasting a signal showing its take-off location and route in real time (as all other drones will be required to do under FAA regs) will by any reasonable definition be flying in secret.

But, more importantly and to the point, as the Michigan appellate court noted:

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.

 

[Heavydpj]

In this case, the drone in question was an off-the shelf version, operated by an FAA certified RPIC, who launched from a public street adjacent to the property. Nothing secret about any of it.

I addressed the "drones aren't aircraft" in my post. I would also posit that airplanes and helicopters (or even balloons, for that matter) were "capable of drastically exceeding the kind of human limitations that would have been expected by the Framers not just in degree, but in kind."

That didn't stop the Court from ruling in Ciraolo and RIley.