Andrew Wimer
Andrew Wimer · May 24, 2023

LANSING, Mich.—Today, the Michigan Supreme Court agreed to decide whether the government can use drones to surveil private property without first acquiring a warrant and then use that evidence in court. For two years, Long Lake Township zoning officials flew a sophisticated drone over Todd and Heather Maxon’s property, taking detailed photographs and videos as part of a zoning dispute. The Maxons, represented by the Institute for Justice (IJ), are asking the court to hold that the government violated their Fourth Amendment rights and can’t use its illegally obtained photos and videos to punish them.

“The government cannot intrude on your home with a drone to surveil you—without a warrant—then use the information it gathered against you in court,” said IJ Attorney Mike Greenberg. “That is precisely the kind of snooping the Fourth Amendment exists to guard against, and we look forward to arguing exactly that to the state supreme court’s justices.”

Todd spends his free time fixing up vehicles on his five-acre property in rural Long Lake Township, located in northern Michigan. 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 trying to pin some violation of the 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 won, with the government agreeing to a favorable settlement in which it agreed to drop the lawsuit against them and reimbursed the Maxons for their attorneys’ fees.

Less than a decade later, Long Lake amended its zoning code and soon afterward used a drone to surveil the Maxons’ home. Multiple times over two years, it flew all over their property, without ever seeking a warrant. Now the government wants to use the collected photos and videos as evidence in a zoning enforcement lawsuit to punish the couple for alleged code violations.

“Like every American, I have a right to be secure on my property without being watched by a government drone,” said Todd. “I’m thrilled the court will be hearing our arguments so that we can vindicate that right for everyone.”

In September 2022, the Michigan Court of Appeals decided that even if the drone flights violated the Maxons’ Fourth Amendment rights, the government could still use the evidence obtained from the unconstitutional search in court. According to the court, the Fourth Amendment’s protection doesn’t apply to investigators hunting for zoning code violations. In the court’s view, any evidence the government uncovers can be used against you in civil code-enforcement proceedings, even if the government deliberately violated your rights when uncovering that evidence.

But the Fourth Amendment applies to all government officials, and our right to be free from unreasonable searches doesn’t turn on what those searches are hoping to discover. If the lower court’s decision stands, the government would have unfettered discretion to spy on whomever it wishes. Such judicial slicing and dicing would eviscerate Michiganders’ rights by giving governments a free pass to blatantly violate the Fourth Amendment when looking for zoning code infractions. It would mean government drones could surveil anyone officials want, at any time, without consequence.

This case is one in IJ’s Project on the Fourth Amendment, which seeks to vindicate the right to be secure from unreasonable searches and seizures. IJ is currently litigating on behalf of property owners in Tennessee who had government cameras installed on their land, a Pennsylvania hunting club subject to warrantless trespassing and surveillance, and security deposit box owners whose boxes were raided by the FBI.