by Paul Engel
- Does the Fourth Amendment protect you from government watching you from a drone?
- The Fourth Amendment protect your right to privacy.
- What is a reasonable search?
The proliferation of drones have become another front in the war on privacy. In a case in the Michigan Court of Appeals, we find a question of whether a drone search is reasonable or not.
In 2008, Long Lake Township filed a zoning complaint against Todd and Heather Maxon. An agreement was entered in to settle the complaint. Then, in 2018 the township filed a civil action, claiming that the defendants had “significantly increased the scope of the junk cars and other junk material being kept on their property” which “constitut[ed] an illegal salvage or junk yard”. As proof, the township provided aerial photographs taken by a drone. The Maxon’s moved to suppress the aerial photographs and “all evidence obtained by [p]laintiff from its illegal search of their property.” They argued that the aerial surveillance of their property was an unlawful search in violation of the Fourth Amendment. The township argued that the use of a drone to photograph the Maxon’s property was not a violation of the Fourth Amendment, since the property was visible from above.
The trial court denied the Maxon’s motion to suppress the aerial photographs. They based their decision on the cases Florida v Riley, which found that “the visual observation of the defendant’s premises from a helicopter did not constitute a search under the Fourth Amendment.” This led to the Maxon’s appealing the trial court’s decision, which brings us to the case I’m reviewing today.
In general, courts do not consider something a search if the item observed was in plain view, the idea being that if you expected something to be private, you would not have put it where it was publicly visible. In the case California v Ciraolo, the Supreme Court found that observing someone’s property from an aircraft at 1,000 feet did not violate the Fourth Amendment since the aircraft was operating in publicly accessible airspace. A few years later, the court found in the Florida v Riley mentioned above, that observations from a helicopter flying at 400 feet also did not violate the Fourth Amendment. These cases are the basis by which the Michigan Court of Appeals made its decision.
In a 2-1 decision, the Michigan Court of Appeals found that, because the Maxon’s had taken steps to prevent observation from the ground, they had an expectation of privacy, at least against casual observation. The court found that:
We conclude that; much like the infrared imaging device discussed in Kyllo; low-altitude, unmanned, specifically-targeted drone surveillance of a private individual’s property is qualitatively different from the kinds of human-operated aircraft overflights permitted by Ciraolo and Riley. We conclude that drone surveillance of this nature intrudes into persons’ reasonable expectations of privacy, so such surveillance implicates the Fourth Amendment and is illegal without a warrant or a traditional exception to the warrant requirement.
In the Kyllo case mentioned, police used an infrared imaging device to scan the building for heat which emanates from the high intensity lights used in indoor marijuana grow houses. The Supreme Court held that since these imaging devices were not generally available to the public, using them constituted an illegal search. Apparently, in the eyes of this court, using an unmanned drone to surveil private property is different than using a manned aircraft. The court found that while a hovering helicopter does not violate a person’s privacy, a drone does. Karen M. Fort Hood dissented from the court’s opinion. She claims that the use of a drone is indistinguishable from that of a helicopter when it comes to the Fourth Amendment. So who is right, the majority of the court or the lone dissenter?
While I believe the majority came to the right decision, I also agree with the dissent, that the difference between using a drone or a helicopter may make little difference in a question of privacy. While a helicopter is quite noisy, I doubt anyone would run outside to cover up their back yard should they hear one approach. In this case I believe both the majority and the dissent miss a very important point. The question that did not appear to be considered by the court was the intent of the Fourth Amendment itself.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,
U.S. Constitution, Amendment IV
The Fourth Amendment does not protect us from unreasonable observation, but from unreasonable searches.
To look over or through for the purpose of finding something; to explore; to examine by inspection; as, to search the house for a book; to search the wood for a thief.
Search – Webster’s 1828 Dictionary
Courts have conflated the Constitution’s protection against unreasonable searches into a right to privacy. While there is an element of privacy involved, the intent of the Fourth Amendment is to protect us from snooping government officials, not from any specific method of that snooping. If a law enforcement officer sees something on your porch while driving through the neighborhood, we wouldn’t consider that a search. Similarly, if someone in a police helicopter observes something in your back yard, that is not a search. If, however, an officer parks outside your home or hovers around your property in a helicopter for the purpose of finding something, then they are searching. And unless they have a warrant or a reasonable exigent circumstance, that is a violation of the Fourth Amendment.
If the Long Lake Township had probable cause, supported by oath or affirmation, that the Maxon’s were violating the law, then all they had to do was get a warrant and the drone surveillance would have been reasonable. Whether the township did not get a warrant because they didn’t have probable cause or because they were just too lazy to bother with it, is a discussion for another day.
While I am happy for the Maxon’s, I am concerned by the ongoing abuse of the Fourth Amendment. By focusing on privacy rather than searches, the courts have twisted themselves, and by extension everyone else, into knots with questions of where and when someone has an expectation of privacy. If those on the court would use the language of the Constitution and decide cases based on the reasonableness of the search, rather than the method used, not only would our rights be better protected, but we would have fewer twisted court opinions to deal with.