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Decision in Michigan case could have big impact on future drone law
By DRONELIFE Feature Editor Jim Magill
An obscure legal case involving a zoning dispute in rural Michigan could have significant national impact on the rights that government regulators must use drones to pursue enforcement actions.
The case, Long Lake Township vs. Maxon, also raises necessary issues regarding property owners’ Fourth Amendment rights to be free from illegal searches, said Brent Skorup, a senior research fellow on the Mercatus Center at George Mason University.
“It’s develop into way more than a drone case. It’s now coping with a reasonably novel query for many courts,” Skorup said in an interview.
At the guts of the case is the query of whether a regulatory agency can use images obtained in drone overflights over private property as evidence because it seeks a civil enforcement motion against the property owner. A second query is: if the courts rule that the drone images were obtained illegally, can the photographs still be utilized in a civil case filed against the property owner?
“This can be a query with national implications, particularly as increasingly more municipalities and police departments use drones. But this goes beyond drones for routine civil investigations, and that would include things like child protective services,” Skorup said.
The case, which works back about one and a half many years, involves an enforcement motion initiated by the Long Lake Township zoning authority against Todd and Heather Maxon, who own a chunk of property in that northern Michigan community.
The municipality had a reason to consider that the Maxons were operating an unpermitted salvage yard, by storing too many junked cars on their property, Skorup said. In 2008 Long Lake Township reached a settlement with the Maxons wherein the property owners agreed not so as to add to the variety of disabled cars on the property.
With a purpose to ensure compliance with the settlement, the town hired a neighborhood drone operator to fly above the Maxons’ property, and collect photographic evidence as to the variety of cars there.
“With these photographs as evidence the town brought one other enforcement motion against the Maxons a few years ago. The Maxons have fought the enforcement and amongst other things have alleged that because the town didn’t seek a warrant before getting the drone photographs this was a constitutional violation,” Skorup said.
Attorneys for the property owners argued that the drone-captured images were obtained illegally, and subsequently must be excluded from use within the case. Illegally obtained evidence is often excluded in criminal cases, but since the enforcement motion involves a civil — fairly than criminal — penalty, the exclusion rule may not apply, Skorup said.
The case has bounced across the Michigan court system for years, until last 12 months it reached the state Supreme Court, which vacated previous rulings and remanded the case back to a lower court. The case is now back before the Supreme Court, which heard oral arguments in October and which is anticipated to issue a final ruling as early as next spring.
Drone Law and Privacy Rights: The Crux of the Case
Skorup, who will not be directly involved within the litigation, said the case raises issues including whether a municipality has the suitable to fly a drone over private property with a view to conduct surveillance and collect evidence, which may then be used against the property owners in civil court. He said the indisputable fact that the township didn’t obtain a search warrant prior to conducting the overflights is critical.
“I do view it as a search,” he said. The U.S. Supreme Court has decided that there are two circumstances where courts will find that an illegal search has been conducted.
“The primary is when surveillance intrudes upon an expectation of privacy by someone, which may very well be relevant here,” Skorup said. The second circumstance occurs where there’s a trespass by the federal government.
In its final decision within the case, the Michigan high court is anticipated to rule on whether flying a drone in low-altitude airspace above private property constitutes such a trespass, he said.
“That is an advanced area of law, and it’s a disputed area of law, but in the event that they find that flying at low altitudes is a trespass, I believe they’ll find that this was a search,” Skorup said. “But again, they may go the opposite way and say that there wasn’t a trespass on this case.”
A friend of the court transient, filed by the American Civil Liberties Union of Michigan and the Mackinac Center for Public Policy, argues against the indiscriminate use of drones by public agencies.
The filing argues that “Repeated and targeted low-altitude aerial surveillance … interferes with the Fourth Amendment right to be secure in our homes against unreasonable searches.”
As well as, the transient states that drones employed by public agencies “supercharge the capabilities and availability of aerial surveillance, and their investigative use by government actors requires courts to interact in a fresh application of Fourth Amendment protections.”
Patrick Wright, an attorney with the Mackinac Center for Public Policy, said the Fourth Amendment’s protections against illegal searches increase the closer one gets to a personal residence, and this is applicable to using drones by regulatory agencies.
“In the event that they are using them to survey the curtilage, which is an area that immediately surrounds the house, then that’s something that violates the Fourth Amendment,” he said.
Wright said rules surrounding using drones by regulatory agencies represents an unsettled area of the law.
“We’re at first of this particular technology, and I do think that the law goes to evolve here in the following couple of many years.”
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