Michigan Supreme Court Creates Giant Loophole for Warrantless Surveillance

ARLINGTON, Va.—On Friday, the Michigan Supreme Court unanimously ruled that even if the government deliberately violates your rights by flying a drone over your property, it can still use its unconstitutionally obtained evidence against you in court. The ruling, which concerns Long Lake Township’s repeated drone surveillance of Todd and Heather Maxon’s property in order to gather evidence against them, sets a devastating precedent that undermines the Fourth Amendment whenever the government goes after you in civil court. The Maxons were represented by the Institute for Justice (IJ).

“The Michigan Supreme Court blessed warrantless surveillance in the name of code enforcement,” said IJ Attorney Mike Greenberg. “Courts ordinarily order evidence from unconstitutional searches excluded, to disincentivize officials from violating our Fourth Amendment rights. The court’s holding creates a massive hole in that rule, removing that incentive for officials who pursue civil, rather than criminal, violations.”

This holding is the latest chapter in Long Lake Township’s vendetta against Todd and Heather. For years, Todd spent his free time fixing up cars on his five-acre property in northern Michigan. He keeps to himself and doesn’t bother his neighbors. But officials have been trying to pin someviolation of Long Lake’s zoning code on the Maxons.

When Long Lake Township first sued Heather and Todd back in 2007, it struck out, with the township agreeing to a favorable settlement that both dropped the lawsuit and paid Todd and Heather’s legal fees. But a decade later, the township amended its zoning code and immediately decided to go after Heather and Todd again. This time, though, the township hired an “eye in the sky,” a drone that on three separate occasions flew all over their property, taking intrusive, high-resolution photographs and videos of their home and backyard. The township never once bothered to try to get a warrant. And now the Michigan Supreme Court has said that even if the township’s warrantless drone snooping violated the Fourth Amendment, it can use those photos and videos as evidence in a zoning enforcement lawsuit.

“Like every American, I have a right to be secure on my property without being watched by a government drone,” said Todd. “I’m incredibly disappointed the court decided to not uphold that right and now all Michiganders are at risk of warrantless drone surveillance.”

“This ruling demonstrates why courts must seriously engage with constitutional questions,” said IJ President and Chief Counsel Scott Bullock. “By not addressing the question at the heart of this case, the court has created a giant loophole putting all Michiganders at risk of warrantless surveillance. IJ will keep fighting to protect every American’s right to be secure, and the Michigan legislature should act to close that loophole so as to protect all Michiganders’ rights.”