By Nate Gilmore

 

The Fourth Amendment reads in part that “[t]he right of the people to be secure in their persons, houses, and effects, against unreasonable searches and seizures, shall not be violated. . . .”[1] This has been the bedrock of privacy protection since 1791. Nevertheless, as technology advances, debates have broken out over whether drone surveillance will “outflank” this Fourth Amendment right to privacy.[2] Last March, however, the Michigan Court of Appeals ruled in Long Lake Township. v. Maxon that drone footage of private property did constitute a search, and therefore a warrantless application violated the Fourth Amendment.[3]

In the landmark case of Katz v. United States, the Supreme Court held that a reasonable expectation of privacy (both subjective and objective) is required to constitute a search under the fourth amendment.[4] The Supreme Court has subsequently made it clear that, in the world of aerial surveillance, the police need not obtain a warrant when observing what is visible with the naked eye.[5] Faced with yet another decision possibly shrinking privacy rights, the Court took a promising turn in Kyllo v. United States. Law enforcement officers used a heat-sensing device to scan an apartment complex to determine if the heat coming from the building was consistent with the high-temperature lamps used for marijuana growing.[6] Justice Scalia, writing for the majority, held that when the government uses technology not in general public use to “explore details of the home that would previously have been unknowable without physical intrusion. . . .” then it constitutes a search.[7] Justice Scalia voiced his concern with the power of technology shrinking the right to privacy, stating that “[r]eversing this approach would leave the homeowner at the mercy of advancing technology-including imaging technology that could discern all human activity in the home.”[8] These concerns over technology more capable than the naked eye might have just saved the right to privacy in drone surveillance.

In Long Lake Township. v. Maxon, Long Lake Township used a drone to fly over the Maxon family residence after a growing suspicion that the family was violating a zoning ordinance by operating an illegal “junkyard.”[9] The Maxon family moved to suppress the drone footage as part of an illegal “search.”[10] The trial court initially denied the defendant’s motion to suppress, finding that the defendants lacked a reasonable expectation of privacy under Ciraolo and Riley.[11] The Michigan Court of Appeals relied heavily on Kyllo in its reversal, comparing how both heat-sensing technology and “low altitude, specifically targeted drone surveillance” of private property are distinct from the human-operated aircraft in both Ciraolo and Riley.[12] The speed and stealth of a drone makes it “capable of drastically exceeding the kind of human limitations that would have been expected by the framers not just in degree, but in kind.”[13]

The powerful holding presented will hopefully be the catalyst for courts across the country in the fight for privacy against drone use: “[W]e conclude that persons have a reasonable expectation of privacy in their property against drone surveillance, and therefore a government entity seeking to conduct drone surveillance must obtain a warrant. . . .”[14]

 

[1] U.S. Const. amend. IV.

[2] John Villasenor, Will Drones Outflank the Fourth Amendment?, Bookings (Sept. 20, 2012), https://www.brookings.edu/opinions/will-drones-outflank-the-fourth-amendment/.

[3] Long Lake Twp. v. Maxon, No. 349230, 2021 WL 1047366 (Mich. Ct. App. Mar. 18, 2021).

[4] 389 U.S. 347 (1967).

[5] See California v. Ciraolo, 476 U.S. 207 (1986) (finding that police flying in public airspace 1000 feet over the property is not a search under the Fourth Amendment even though privacy fences surrounded the yard from ground level); see also Florida v. Riley, 488 U.S. 455 (1989) (finding that police observation of a partially exposed greenhouse from a helicopter 400 feet in the air did not constitute a “search” under the Fourth Amendment).

[6] Kyllo v. United States, 533 U.S. 27, 29 (2001).

[7] Id. at 40.

[8] Id. at 28.

[9] Long Lake Twp., 2021 WL 1047366 at *1.

[10] Id.

[11] Id. at *2.

[12] Id. at *6.

[13] Id.

[14] Id. at *7.

Image source: https://www.publicradiotulsa.org/local-regional/2019-02-11/measure-aims-to-regulate-drone-use-over-private-property