IJ Flies to the Michigan Supreme Court to Defend the Fourth Amendment’s Property Rights Protections

Mike Greenberg
Mike Greenberg  ·  February 1, 2023

The Fourth Amendment protects our right to be “secure” in our persons and our property. But how secure would you feel if you knew the government could deploy drones—small, unmanned, remote-controlled aircraft with high-powered cameras—to discreetly surveil you and your house, whenever it wants? IJ clients Todd and Heather Maxon learned their government had been spying on them in exactly that way for months. 

The Maxons live on a rural five-acre property in northern Michigan’s Long Lake Township. Recently retired, Todd spends his free time collecting and tinkering with cars and other vehicles. Because their property has multiple outbuildings and is heavily wooded, Todd can—and does—keep the vehicles away from both the public’s and his neighbors’ view. In other words, Todd’s hobby is a private and harmless use of his homestead. 

But that doesn’t matter to officials in the township’s code enforcement office. For years, they have been trying to pin some violation of the township’s zoning and nuisance code on Todd for keeping vehicles on his property. After previous efforts failed, the office in 2018 brought a new enforcement lawsuit against Todd—again claiming his keeping of vehicles in his backyard was illegal. 

So how did the township gather evidence to support its allegations? At least three times over several months, it remotely flew a drone all around the property, capturing intrusive high-resolution photographs in the process. It never once sought—much less obtained—a warrant for its surveillance. 

Unfortunately, as IJ has documented through our Project on the Fourth Amendment—which we launched in 2021—these sorts of government intrusions on private property are all too common. For decades, courts have undermined Fourth Amendment protections through judicial inventions such as the “open fields doctrine,” which holds that the Fourth Amendment applies to only a property owner’s home and the immediately surrounding area, leaving government officials free to search any other part of the property. Combined with modern technology like drones or even—as IJ has seen in other cases—permanently placed hidden cameras, the open fields doctrine gives government investigators the power to monitor vast swaths of property 24 hours a day, all without a warrant. 

Remarkably, when the Michigan Court of Appeals heard the Maxons’ case, it made this already bad situation worse: A 2-1 majority held that the rule requiring exclusion of unconstitutionally obtained evidence applies only to police officers pursuing criminal violations. In other words, all other government officials—and any government official investigating civil, rather than criminal, violations—can violate the Fourth Amendment consequence-free. 

Our property rights deserve better. Now represented by IJ, the Maxons are appealing to the Michigan Supreme Court. The government’s use of cutting-edge drone technology to trespass on and surveil the Maxons’ property violated the Fourth Amendment. That is true under the law as it exists today, but—even more importantly—it is true under the view of the law set out in our Project on the Fourth Amendment, which will eventually see the pernicious open fields doctrine abolished.

Mike Greenberg is an IJ attorney. 

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