State Appeals Court Says Flying A Drone Over Someone's Property Violates The Fourth Amendment

from the not-going-to-allow-the-4th-Amendment-to-be-left-behind-by-tech-developments dept

Lots of plain view jurisprudence relies on the fact that if it can be observed by random people -- not just by law enforcement -- then there's no Fourth Amendment issue. If airplanes can pass over someone's land, surely police helicopters can do the same thing without undoing expectations of privacy.

Some of this judicial thought process has been altered by persistent surveillance from law enforcement cameras -- ones that don't just observe, but also record and provide officers with searchable footage of residences investigators are interested in. Then there's the incidental aspect. If a cop enters a home to perform community caretaking functions and spots contraband, this is legal as it's not the point of the cop's entry. If the cop is there solely to look for contraband, a warrant and probable cause is needed.

But a brief overflight generally isn't a Constitutional issue, no matter how high a fence those under investigation have constructed. A flyover isn't persistent or invasive surveillance. But tech advances have altered how flyovers by government agencies are conducted. In this case, via FourthAmendment.com, the Michigan Court of Appeals has found in favor of a defendant who moved to suppress evidence gathered by the city with its drone.

And this is still very much law enforcement activity, even if it wasn't related to the sort of crime we normally associate with constitutional violations. From the decision [PDF]:

In this zoning dispute, defendants appeal by leave granted the order of the trial court denying their motion to suppress evidence. At issue is the legality of the use of a drone by plaintiff Long Lake Township to take aerial images of defendants’ property without defendants’ permission or any other specific legal authorization. Plaintiff relied on those aerial photographs to commence suit against defendants, alleging that defendants were in violation of a zoning ordinance, nuisance law, and a prior settlement agreement between the parties. We reverse the trial court’s May 16, 2019 order denying defendants’ motion to suppress evidence, and we remand for entry of an order suppressing all photographs taken of defendants’ property from a drone and for further proceedings consistent with this opinion.

The township had plenty of options at its disposal if it wanted to settle a zoning dispute. It could have asked for consent to view the property. It could have approached a judge and asked for permission to perform this act, possibly using an administrative warrant. It could have sent city personnel out and made it clear it had authority to act on zoning disputes. Instead, it chose to fly a drone over the disputed property to gather evidence against the alleged violator of zoning laws.

The township claimed the defendant was keeping too much "junk" on their property, a tipping point that apparently could only be determined by circling overland. The defendant claimed the drone flight over their land violated the Fourth Amendment, along with FAA regulations on drone flights.

The township replied that there was no expectation of privacy in anything capable of being viewed from the air and denied it had violated FAA regulations. The trial court sided with the township. It also declared that even if FAA regulations had been violated, they had no bearing on the Fourth Amendment assertions.

The state appeals court disagrees. And it says that even though this wasn't necessarily a criminal investigation since it only involved code enforcement, the Fourth Amendment is still relevant due to the government's involvement in the aerial "search" of the property.

Considering the great historical importance placed on the freedom to use one’s own property, and the fact that the consequences of this action may entail far more than merely the imposition of money damages, we conclude that this is the kind of proceeding to which the Fourth Amendment may apply.

The court cites a couple of Supreme Court cases. One involves the encroachment of law enforcement into the "curtilage" without a warrant or consent (Florida v. Jardines) and the use of possibly invasive tech tools to obtain information law enforcement wouldn't have been able to obtain without it (Kyllo v. United States and its discussion of thermal imaging tech). It also adds the more recent Carpenter decision to the mix -- the one that said warrants are needed for obtaining cell site location info.

Critically for the instant matter, the Court opined that mere existence and availability of technological advancements should not be per se determinative of what privacy expectations society should continue to recognize as reasonable. Kyllo, 533 US at 33-35. Although again discussing only privacy within the home, the Court emphasized that the homeowner should not be “at the mercy of advancing technology” that might eventually be able to see directly through walls outright. Id. at 35-36. The development of historically-novel ways to conduct unprecedented levels of surveillance at trivial expense does not per se reduce what society and the law will recognize as a reasonable expectation of privacy.

And, although the court says FAA rules have no bearing on Fourth Amendment claims, the rules are a solid indicator that courts shouldn't treat drone flights as substantially similar to flights over private property conducted by airplanes or helicopters.

The FAA regulations, 14 CFR part 107,5 require drone operators to keep drones within visual observation at all times, fly drones no higher than 400 feet, refrain from flying drones over human beings, and obtain a certification. Such rules reflect the fact that drones are qualitatively different from airplanes and helicopters: they are vastly smaller and operate within little more than a football field’s distance from the ground. A drone is therefore necessarily more intrusive into a person’s private space than would be an airplane overflight. Furthermore, unlike airplanes, which routinely fly overhead for purposes unrelated to intentionally-targeted surveillance, drone overflights are not as commonplace, as inadvertent, or as costly. In other words, drones are intrinsically more targeted in nature than airplanes and intrinsically much easier to deploy. Furthermore, given their maneuverability, speed, and stealth, drones are—like thermal imaging devices—capable of drastically exceeding the kind of human limitations that would have been expected by the Framers not just in degree, but in kind.

The court goes on to point out the township had better options but chose to ignore these in favor of testing the Fourth Amendment limits of drone surveillance. That it lost on this roll of the judicial dice is its own fault.

We also observe that plaintiff’s warrantless surveillance was totally unnecessary. The parties could easily have—and likely should have—included a monitoring or inspection provision in their settlement agreement. Aside from that, as the United States Supreme Court observed, the quantum of evidence necessary to establish probable cause to conduct an administrative inspection is more than “none,” but is less than what might be required to execute a criminal search warrant. Camara, 387 US 528-539. By plaintiff’s own account, it had concrete evidence, in the form of unrelated site inspection photographs and complaints from defendants’ neighbors, that defendants were violating the settlement agreement, violating the zoning ordinance, and creating a nuisance.

And this decision is unlikely to disrupt legitimate law enforcement activity, no matter what the township may claim will be the result of forbidding these unmanned flights over private property.

Our holding today is highly unlikely to preclude any legitimate governmental inspection or enforcement action short of outright “fishing expeditions.” If a governmental entity has any kind of nontrivial and objective reason to believe there would be value in flying a drone over a person’s property, as did plaintiff here, then we trust the entity will probably be able to persuade a court to grant a warrant or equivalent permission to conduct a search.

That's the risk the government takes when it decides to take its chances on unsettled case law. Sometimes the settling of the law results in a win for the governed. If government agencies want to fly drones over private property in this state, they'll need more judicial input than the Long Lake Township chose to seek in this case.

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Filed Under: 4th amendment, flyovers, michigan, surveillance