Todd and Heather Maxon live on a five-acre property in rural Long Lake Township, in northern Michigan. Todd spends his free time fixing up and tinkering with cars and other vehicles. He keeps those vehicles away from public view and he doesn’t bother his neighbors.
That doesn’t matter to officials in Long Lake Township’s zoning enforcement office, though. For years, officials have been trying to pin some violation of Long Lake’s zoning code on the Maxons. The government first brought a code enforcement lawsuit against them in 2007, claiming they’d illegally stored “junk” on the property. The Maxons fought the case and they won, with the government agreeing to drop its lawsuit against them.
But the town wasn’t ready to stop. Less than a decade later, Long Lake used a drone to repeatedly surveil their home without a warrant for over two years. It flew all over their property, taking intrusive, high-resolution photographs and videos of their home and backyard—photos and videos it could not have otherwise seen from any public vantage point. Now the government wants to use those photos and videos as evidence in a zoning enforcement lawsuit meant to punish the couple for alleged code violations on their property.
And that, according to the Michigan Court of Appeals, is just fine. According to the court, the Fourth Amendment’s protection against warrantless searches doesn’t really apply to investigators if they are hunting for zoning code violations. In the court’s view, the evidence the government uncovers in violation of your constitutional rights can be used to help make its case against you in civil code-enforcement proceedings.
Todd and Heather Maxon are teaming up with the Institute for Justice to appeal this dangerous ruling to the Michigan Supreme Court. Our constitutional right to be secure from intrusive drone surveillance doesn’t rise or fall based on what uniform surveilling officers wear or what their plans for the evidence happen to be, as the Court of Appeals held. Such judicial slicing and dicing would eviscerate Michiganders’ rights by letting government blatantly violate the Fourth Amendment when looking for zoning code infractions. If Long Lake can violate the Maxons’ Fourth Amendment rights without consequence, anyone can expect to see a drone hovering over their backyard soon.
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The government uses a drone to surveil the Maxons’ home without a warrant
Todd and Heather Maxon live in rural Long Lake Township, in northern Michigan. Recently retired after more than 30 years in the telecommunications industry, Todd is now a hobbyist in his free time: he fixes up and tinkers with cars and other vehicles and uses them for recreation. He keeps those vehicles away from public view and he doesn’t bother his neighbors.
But that doesn’t matter to officials in Long Lake Township’s zoning enforcement office. For years, officials have been out to get the Maxons—to pin some violation of Long Lake’s zoning code on them. It first brought a code enforcement lawsuit against them in 2007, claiming they’d illegally stored “junk” on the property. The Maxons fought the case and they won: The government agreed to not enforce that zoning ordinance against them again and it paid them thousands of dollars in attorneys’ fees for their trouble. That was a big deal, because violations of the zoning code can be penalized by ruinous fines of up to $500 per day.
Todd and Heather thought that favorable settlement was the end of the matter. But the government did not. In 2016, Long Lake amended its zoning code, making it even stricter and allowing the Township to maneuver around its promise not to enforce the old zoning ordinance against the Maxons. And in 2018, it brought a new code enforcement lawsuit against them, arguing again that Todd and Heather’s keeping of vehicles on their property violated a zoning ordinance. It asked the court to order the Maxons to get rid of their alleged “nuisance.”
But how could the government justify its allegations? After all, none of the items Todd and Heather store on the property were visible from the ground level. The answer: It used a drone to fly at low altitudes over the property and take high-quality aerial photographs and videos all over. Drones are quiet and tiny compared to fixed-wing airplanes and helicopters; by federal regulatory definition, they must weigh less than 55 pounds, including any attachments. Because of that small size, they are much stealthier and speedier in flight than larger aircraft, and they must fly at low altitude: By federal regulation, drones may fly no higher than 400 feet above the ground.
So while drones have captured the American imagination for their various recreational and commercial uses—from package delivery to cinematography—they also raise significant concerns as a surveillance tool, whether by neighbors or the government. California police, for instance, used drones to surveil and analyze protests of immigrant detention policies. And a Virginia man was criminally convicted for repeatedly flying a drone over his neighbors’ property, causing the neighbors to worry for their kids’ safety and privacy. A Colorado court held that an investigator’s use of a drone over a suspect’s property to search for marijuana plants the Fourth Amendment, and a federal court in Pennsylvania granted a first-round victory to a homeowner alleging that a defendant’s use of drone surveillance violated their rights under state law.
The government hired a contractor, who flew his drone over the Maxons property multiple times over two years. Not once in these two years did the government even attempt to seek a warrant. The drone reached altitudes as low as 150 feet above the ground. The resulting videos and photographs were so detailed that the government could use them to create maps portraying exactly which items had moved places between surveillance trips and the exact location to which those items had been moved.
The Court of Appeals allows the government to use evidence from its warrantless drone surveillance to punish the Maxons in court
To prove its case in its new lawsuit against Todd and Heather, the government introduced the surveillance photographs it gathered from its drone surveillance. Todd and Heather asked the court to throw out the evidence, arguing that Long Lake’s warrantless drone surveillance intruded on their privacy and property rights and was an unreasonable search in violation of the Fourth Amendment. And for more than a century, the remedy for a Fourth Amendment violation has been suppression of unlawfully obtained evidence. But the trial court disagreed: It breezily held that, based on other cases involving airplanes and helicopters, the government’s use of a drone for surveillance was reasonable under the Fourth Amendment, so it need not be suppressed.
Todd and Heather immediately appealed. And in a two-to-one decision, the Court of Appeals reversed. It recognized that Todd and Heather’s property couldn’t really be seen from ground level. And because people would not expect intrusive, low-flying drones to be surveilling their homes from overhead, the court held that Long Lake’s warrantless snooping was an unreasonable search under the Fourth Amendment.
Yet Todd and Heather’s case took another bizarre turn when it came before the Michigan Supreme Court. The high court was asked whether Long Lake’s warrantless drone surveillance was an unconstitutional search. But instead, it sent the case back down to the Court of Appeals on a related question: Assuming that Long Lake’s drone did violate the Maxons’ Fourth Amendment rights, should Long Lake still be allowed to use the evidence it obtained anyway in its civil code-enforcement proceeding?
“Yes, it should,” the Court of Appeals soon answered. According to two judges, prohibiting the government from using illegally obtained evidence is “intended to deter police misconduct . . . not that of lower-level bureaucrats who have little or no training in the Fourth Amendment.” In other words, the court held, because the zoning officers who ordered surveillance of the Maxons’ home were not badge-and-gun police officers—and because they were pursuing alleged civil infractions (rather than criminal)—Long Lake could use the evidence despite its Fourth Amendment violation.
The court’s decision has dangerous consequences. As the dissenting judge noted, the longstanding rule that government may not use evidence from unconstitutional searches to punish people in court is “designed to safeguard Fourth Amendment rights generally,” regardless of the uniform the government’s officers wear. But the majority’s decision leaves little incentive for officers to refrain from not just warrantless drone surveillance, but all kinds of blatant Fourth Amendment abuses—so long as they are pursuing alleged civil, rather than criminal, violations. Under the court’s decision, code enforcement officers could commit even obvious Fourth Amendment violations—like breaking down doors without a warrant and snooping through homes for alleged code violations—and use what they find to punish the homeowner, consequence-free. That is why, to protect all Michiganders’ right to be secure from unreasonable searches, the Maxons have teamed up with the Institute for Justice in an appeal to the Michigan Supreme Court.
Todd and Heather are asking the Michigan Supreme Court to accept the case and hold both that (1) the government’s warrantless drone surveillance of their home was an unreasonable search, in violation of the Fourth Amendment, and (2) the government should not be able to use the evidence it gathered from its unconstitutional search to punish them in court.
The government’s warrantless drone surveillance of the Maxons was an unreasonable search under either of the U.S. Supreme Court’s leading tests. First, the Supreme Court has held that the government commits a search when it physically occupies or trespasses on private property to obtain information. The government did just that when it repeatedly intruded on the Maxons’ property with a drone at low altitudes to gather information about what the property looked like.
Second, and as the Court of Appeals originally ruled, the government’s surveillance was an unreasonable search because it violated the Maxons’ reasonable expectation of privacy. When the government uses “sense-enhancing technology” to get information about someone’s home “that could not otherwise have been obtained,” it commits a search under the Fourth Amendment. Because the government could not have seen the Maxons’ backyard without the drone’s enhancing technology, its warrantless use of that technology for its surveillance was a search.
And a third, easier, approach makes Long Lake’s surveillance an unreasonable search: one that uses the ordinary understanding of the word “search.” To ease confusion in Fourth Amendment law, many judges and academics have urged a test that defines a search simply as a purposeful, investigative act. Long Lake’s repeated drone surveillance neatly fits that simple definition. Since the government never even bothered to get a warrant and no exception applies, their search was unreasonable.
Nor should the government be allowed to use its unconstitutionally obtained drone evidence against Todd and Heather in court. When the government uses its power to punish people, the need for government to behave constitutionally is at its zenith. To incentivize officials to respect our right to be secure from unreasonable searches and seizures, the ordinary remedy for Fourth Amendment violations is exclusion of the illegally obtained evidence from the government’s case. But the Court of Appeals’ decision would instead incentivize government officials to act with impunity when pursuing civil violations. The Michigan Supreme Court must correct the Court of Appeals’ decision so that the people can be “secure in their persons houses, papers, and effects” from all government investigators’ prying eyes, no matter what uniform they wear or what they’re looking for.
The Litigation Team
Todd and Heather are represented in their appeal to the Michigan Supreme Court by IJ Attorney Mike Greenberg, Litigation Fellow Trace Mitchell, and Senior Attorney Robert Frommer. Senior Attorney Patrick Jaicomo is acting as local counsel.
The Institute for Justice
Founded in 1991, the Institute for Justice—the national law firm for liberty—is a public interest law firm dedicated to protecting fundamental constitutional rights. Through its Project on the Fourth Amendment, IJ is a leading defender of the constitutional guarantee of security against unreasonable searches and seizures. To that end, IJ has challenged unreasonable searches of people’s homes (in Iowa, Pennsylvania, and Washington, among others), their marked private land (in Pennsylvania and Tennessee), their businesses (in Ohio), and their safety-deposit boxes (in California).
 14 C.F.R. § 107.3 (2021).
 14 C.F.R. § 107.51(b) (2016).
 E.g., Weeks v. United States, 232 U.S. 383 (1914).
 Long Lake Township v. Maxon, 2022 WL 4281509, at *6 (Mich. Ct. App. Sept. 15, 2022).
 United States v. Jones, 565 US 400 (2012).
 United States v. Kyllo, 533 U.S. 27 (2001).