Sunday, March 21, 2021

Appeals court: No warrant, no drone flyover

March 21—LANSING, Michigan — A state Court of Appeals panel ruled 2-1 that Long Lake Township officials cannot fly a drone over someone's backyard, take photos and use them to cite the homeowner for zoning violations, without first obtaining a warrant.

"It's going to cause a ripple," attorney William Burdette said. "We stood up for the little guy."

Burdette represents Todd and Heather Maxon, sued by Long Lake Township over zoning violations. Evidence presented in 13th Circuit Court in 2019 included drone photos taken without the Maxon's permission.

That drew the ire of Judges Kathleen Jansen and Amy Ronayne Krause, who ruled Thursday that just because a new capability exists, that does not mean a homeowner' privacy rights should be placed at the mercy of advancing technology.

The decision reverses a May 2019 order signed by 13th Circuit Court Judge Thomas Power, which denied Todd and Heather Maxon's request to suppress the photos of their Long Lake Township property.

Court records show Long Lake Township used the photos to show there was a "significant increase in the amount of junk" being stored at the property, violating the township's zoning ordinance prohibiting salvage or junk yards.

The drone operator had a constant visual line of sight on the drone and kept below 400 feet of altitude in compliance with FAA regulations, township officials said in court filings.

That was not enough to sway two judges, who said if there was reason enough for the unmanned flight, there should have been reason enough for a warrant.

"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 the 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," the judges state in their published opinion.

Judge Power declined comment on the COA's opinion.

A third COA panel Judge Karen M. Fort Hood, dissented, pointing out that the U.S. Supreme Court previously ruled property plainly visible from a publicly navigable airspace is generally not subject to Fourth Amendment — the right to be protected against unreasonable searches.

"I am not confident the distinction between manned and unmanned aircraft should carry so much weight," the judge stated in her dissent, adding there was no evidence the drone was flying at a particularly low altitude.

There actually are inherent and legally compelling differences between the two types of aircraft, said drone pilot Greg MacMaster, owner and chief pilot of Eagle Eye Video & Drone Service of Kewadin.

"This is the exact fear that many had when drones first started to come into the workforce — privacy rights," MacMaster said. "If we don't reinforce the legal standing from the courts and the FAA, people think they can do whatever they want. And the law says — or should say — they can't."

The Federal Aviation Administration does control U.S. airspace, but has little or nothing at all to do with privacy rights, FAA documents show.

MacMaster said his company was not contracted by Long Lake Township to fly a drone over the Maxon's property. Court records show that was Zero Gravity Aerial, of Traverse City, and owner Dennis Winard declined comment, referring a Record-Eagle reporter to attorney Todd Millar, who is representing Long Lake Township.

Millar did not return a call seeking comment.

MacMaster said he had worked for Antrim and Otsego counties on hoarding and building permit cases, though in both circumstances either had permission from the homeowner to pilot his drone over their property or piloted over an abutting property and took long-range photos.

"How large is the property, what is it they are trying to get and how are they trying to get it, and then I would ask them if they have a warrant," MacMaster said, of what he asks municipalities interested in hiring him.

"If they do not have a warrant, I cannot cross the property boundary lines," MacMaster, who served on Gov. Rick Snyder and Gov. Gretchen Whitmer's UAS Task Force, said.

UAS is unmanned aircraft systems, the official name for drones.

One government body that doesn't necessarily need a warrant to fly a drone over private property is law enforcement, said Grand Traverse County Sheriff Dept. Capt. Chris Clark, but not for the reason people might think.

There are a few exceptions to the civil rights protections offered by the Fourth Amendment, one of which is the Community Caretaker Exception, Clark said.

Deputies used a drone as recently as Wednesday to fly over the site of a two-vehicle car crash in Green Lake Township to "map" US-31, after the crash sent two adults and two children to the hospital with serious injuries.

"In that case we flew over the roadway, which is public property," Clark said. "We have had drones for three or four years, we have two deputies who are certified pilots and yes, we have used them in other applications."

For example, in December 2019, a drone was piloted over a wooded area along the Boardman River near the intersection of Keystone and Hammond roads, after deputies responding to a domestic violence call heard gunshots.

A man with a gunshot wound emerged from the woods a short time later, as previously reported, a search closed roads and hiking trails in the area and necessitated a CodeRED alert and a drone flight, Clark said.

A person of interest was later interviewed and no charges were filed after sheriff department investigators determined the man had fired in self-defense.

While no warrant was necessary in that case, even though the drone did fly over some parcels of private property, the safety of the community was at stake, Clark said.

"In a criminal investigation, we would always consult with the prosecutor's office before using a drone," Clark said.

Burdette called the COA's decision in the Maxon case groundbreaking and said his clients were elated.

"This is a case of first impression," Burdette said, when arguing the case before the appellate panel. "The Michigan State Supreme Court has never addressed the use of drone surveillance before — and aerial surveillance of a person's private property."

Long Lake Township has 21 days to appeal.

The case has been remanded back to the trial court, though Long Lake Township must proceed without benefit of the now-stricken drone photos.

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