While technology advances, do Fourth Amendment rights keep pace to preserve privacy? Or do they get left behind? Regardless of the answer, it would be helpful to at least know how courts view the matter. Yet since 2005, when the Federal Aviation Administration (FAA) began certifying drones and our skies began to darken if only by the slightest shade,1 courts have remained rather quiet about whether government drone surveillance constitutes an unreasonable search.2 And when squarely confronted with that question, the Michigan Supreme Court ducked. In Long Lake Township v. Maxon,3 Michigan’s high court short-circuited its Fourth Amendment analysis of drone surveillance by concluding that, even if the municipality did conduct an unreasonable search, the exclusionary rule was inapplicable. As Americans grow increasingly concerned with drones,4 so much so that Saturday Night Live’s Bowen Yang took to the Weekend Update desk dressed as a drone himself,5 courts should be offering answers on whether drone surveillance constitutes an unreasonable search. While the answer to that question may be beyond the scope of this comment, it should not have been beyond the scope of the Michigan Supreme Court.
The Maxon family is no stranger to run-ins with their municipality, Long Lake Township. In 2007, the Township sued Todd Maxon for zoning ordinance violations, including operating an unlicensed junkyard by storing salvaged vehicles on the property.6 The parties settled.7 But in 2016, after Todd and Heather Maxon’s neighbors complained that the Maxons were indulging their old junkyard habits, the Township investigated anew.8 This time, it took it a step further: Unable to view their property at ground level due to tree and building obstructions, the Township hired a contractor to take aerial drone shots.9 On three occasions, the drone took bird’s-eye view photographs and videos of the Maxons’ property that confirmed the neighbors’ reports.10 The Township sued the Maxons in Grand Traverse County Circuit Court for violating town ordinances, seeking to enjoin the Maxons’ “salvaging activity.”11 In response, the Maxons filed a pretrial motion to exclude the drone shots under the Fourth Amendment and Michigan constitution.12
The trial court denied the suppression motion.13 Delivering his opinion from the bench, Judge Power narrowed the question presented to whether “it [is] a search under the Fourth Amendment to view the property from above.”14 The court looked to Florida v. Riley,15 observing the fractured nature of the opinion.16 While the plurality in Riley permitted an overhead helicopter search because it complied with FAA regulations, Justice O’Connor’s crucial fifth vote rejected the plurality’s reasoning but nonetheless reached a similar conclusion that the aerial search complied with the Fourth Amendment.17 Judge Power then reflected on the Riley dissent, quoting its insistence that the plurality’s “attempt to analogize surveillance from a helicopter to surveillance by a police officer standing on a public road” was misplaced.18 Judge Power succinctly concluded, however: “[The dissenters] lose on that point.”19 Motion denied.
The Michigan Court of Appeals reversed.20 Writing for the panel, Judge Jansen21 first established that searches of the curtilage are per se unreasonable absent a warrant, swiftly moving on to “whether defendants had an actual and reasonable expectation of privacy.”22 The court analogized to the use of an infrared imaging device at issue in Kyllo v. United States,23 determining that the use of “low-altitude, unmanned, specifically targeted drone surveillance of a private individual’s property is qualitatively different from” past aerial searches held to be reasonable.24 The court offered several points of distinction: FAA regulations differ for drones;25 drones’ smaller size and closer proximity means they are “necessarily more intrusive”; drones are “not as commonplace, as inadvertent, or as costly,” and are thus “intrinsically more targeted”; and drones’ “maneuverability, speed, and stealth” render them beyond the Framers’ expectations “not just in degree, but in kind.”26 The court created a bright-line warrant requirement for drone surveillance.27 Evidence suppressed.
Judge Fort Hood dissented.28 Finding the present case indistinguishable from Supreme Court precedent allowing aerial surveillance via manned aircraft, Judge Fort Hood asserted there was no reasonable expectation of privacy from drones.29 Four considerations drove her conclusion: There was no functional difference between “manned and unmanned aircraft”; the result of the searches — aerial photographs — were identical; drones “occupy airspace that is navigable by the public”; and drones are comparatively “readily available to and utilized by the public.”30 Judge Fort Hood favored a totality test, not met here where the Maxons’ yard was “plainly visible to the naked eye from airspace navigable by the public.”31
The Michigan Supreme Court vacated and remanded.32 In a laconic, six-sentence memorandum opinion, the high court remanded the case for the lower court to “address the additional issue of whether the exclusionary rule applies to this dispute.”33
On remand, the Michigan Court of Appeals affirmed the trial court.34 Writing for the panel, Chief Judge Gleicher35 “assum[ed] that a Fourth Amendment violation occurred” before moving to the question of remedy.36 The court highlighted that the exclusionary rule serves to both “deter police misconduct, and . . . provide a remedy where no other . . . is available.”37 The court then applied Janis38 balancing.39 Because the drone operator “acted at the behest of a township official,” not the police, the exclusionary rule’s animating principle was absent.40 Any benefits of suppression were “vastly outweighed by the public’s interest in enforcement of zoning regulations,” given that the Maxons’ yard was obscured from the street and the Maxons could pursue a civil damages action to achieve deterrence.41 Because the proceedings were “remedial, not punitive,” the exclusionary rule served no purpose.42
Judge Jansen dissented.43 He posited that the Michigan state constitution went further than the Fourth Amendment; a violation of the former via warrantless drone surveillance demanded suppression.44 Judge Jansen discussed Michigan Supreme Court precedent detailing the broad scope of the state constitution relative to its federal counterpart.45 Because the case concerned the curtilage — thus “implicat[ing] . . . respect for households” — and local officials ordered the surveillance, the state constitution required suppression.46
The Michigan Supreme Court affirmed.47 Writing for a unanimous court, Judge Zahra opined that the exclusionary rule does not apply to zoning enforcement proceedings and thus “decline[d] to address whether the use of an aerial drone . . . is an unreasonable search.”48 Because “[t]he exclusionary rule is a jurisprudential creation rather than a constitutional rule of law,” it was inapposite where it “would not deter unconstitutional law enforcement activity.”49 The high court discussed four Supreme Court decisions — Janis,50 Pennsylvania Board of Probation & Parole v. Scott,51 United States v. Calandra,52 and Immigration & Naturalization Service v. Lopez-Mendoza,53 all of which did not apply the exclusionary rule in their respective settings — for the proposition that the civil context is at odds with the exclusionary rule.54 The court noted some exceptions, such as civil asset forfeiture and intrusive blood draws, but resolved that more than “marginal deterrence” for officers is required.55
From there, Judge Zahra applied Janis balancing, reaching the same conclusion as the court below.56 Exclusion’s costs were high, as the Maxons’ yard was obscured from the street, meaning zoning codes would be left unenforced.57 The “‘unique’ social costs in suppressing evidence of ‘continuing violations of the law’” were not justified where they would require the court “to close [its] eyes to ongoing illegal activity.”58 The benefits of exclusion, meanwhile, were low: These were municipal officials, not law enforcement (meaning no law enforcement deterrence was at play), and the Township was seeking only injunctive relief, not a fine.59 This was unlike civil asset forfeiture cases, which are “quasi-criminal” in nature, because the salvage was not linked to any ongoing crime and the case was simply brought “to bring the Maxons in compliance with the property-use restrictions adopted by, and applicable to, all in their community.”60 The Michigan Supreme Court denied the Maxons their desired relief.
The Michigan Supreme Court Justices employed evasive maneuvers to avoid the unreasonable search question. That’s unfortunate for several reasons. It imposes heightened costs on future litigants and courts faced with the issue. It stymies advance planning and slows down legislative solutions. And it’s a missed opportunity to reassert privacy expectations against new surveillance techniques.61 Instead of skipping ahead to the end of the story, the Michigan Supreme Court should have conducted a standard Fourth Amendment analysis that answered whether drone surveillance is an unreasonable search.
The Maxon opinion reflects judicial minimalism, which prescribes “saying no more than necessary to justify an outcome, and leaving as much as possible undecided.”62 Professor Cass Sunstein63 has reflected on when minimalism is best employed: (1) “when any solution seems likely to be confounded by future cases,” (2) “when the need for advance planning does not seem insistent,” (3) “when the preconditions for democratic self-government are not at stake and democratic goals are not likely to be promoted by a rule-bound judgment,” and (4) “when judges are proceeding in the midst of (constitutionally relevant) factual or moral uncertainty and rapidly changing circumstances.”64 Conversely (and mirroring the prior list), Sunstein has noted when maximalism is appropriate: (1) “when the solution can reduce costly uncertainty for future courts and litigants,” (2) “when advance planning is important,” (3) “when a maximalist approach will promote democratic goals either by creating the preconditions for democracy or by imposing good incentives on elected officials,” and (4) “when judges have considerable confidence in the merits of that solution.”65 Applying these prongs to Maxon, judicial maximalism triumphs.66
First, future cases would not be “confounded”67 by deciding the search and reasonableness questions here. Any “error costs” of a general ruling on drones that might impact subsequent, unforeseen cases are remedied by the future ability to refine the doctrine.68 Consider the life cycle of the exclusionary rule itself.69 When the U.S. Supreme Court extended it to the states in Mapp v. Ohio,70 no exceptions were noted.71 But since then, the Court has continued to refine the doctrine.72 So too here, where a clear statement about whether drone surveillance constitutes a reasonable search could be refined by subsequent case law. A maximalist decision would also reduce future costs. It would provide guidance to lower courts to help them better understand the substantive nature of privacy rights, preventing unnecessary future reversals.73 It would help residents understand how to manage their property in a way that preserves privacy. And, given surveillance technology’s status as a multibillion dollar industry,74 it would help law enforcement grasp how that technology interacts with the Fourth Amendment before doling out further funds on the latest innovations.
Second, advance planning is important when it comes to drone surveillance. Waiting for a damages action here is like waiting for Godot — it might never come.75 In the Michigan Court of Appeals’ second bite at the apple, it noted that “[a] civil action for damages resulting from a constitutional violation also punishes and penalizes, achieving deterrence.”76 But is that practically available in the Maxons’ case? Their theory of damages is unclear77 — the decision makes no mention of the Maxons noticing the drone nor of it altering their property. The added expense of legal fees often means that plaintiffs’ costs outweigh possible damages such plaintiffs might recover.78 Moreover, in the qualified immunity context, officers are held liable for their conduct only if they “violate clearly established statutory or constitutional rights of which a reasonable person would have known.”79 Without a court case — or, depending on the jurisdiction, a department policy80 — pointing to such a right, victims are left without recompense.81 Advance planning helps determine legal rights before the next § 198382 suit.83 Deciding the reasonable search question acts as legal prophylaxis, putting parties on notice of legal rights so they may align their future behavior.84
Third, a holding on whether the Township violated the Maxons’ Fourth Amendment rights would “creat[e] the preconditions for democracy.”85 A holding that such surveillance is perfectly constitutional would put the ball in the legislature’s court. If drone surveillance were held to be reasonable, legislators might face pressure to prohibit the practice. But those same legislators may prefer (and adopt) a wait-and-see approach when the constitutionality of the predicate search is still undecided.86 And a contrary holding — that the surveillance is not constitutional — would allow residents to enforce those rights in court and elect leaders who promise to respect those rights in the first place.87
Fourth, maximalism is appropriate here precisely because of the “rapidly changing circumstances.”88 While such a feature typically counsels for restraint, here it counsels in favor of maximalism for a simple reason: The battle over societal privacy expectations needs its renewed day in court because technology will only continue to advance. Right now, law review articles debating the search and reasonability elements of drone surveillance tread on old ground, scrutinizing Kyllo’s 2001 thermal imaging, California v. Ciraolo’s89 1986 fixed-wing aircraft,90 and Riley’s 1989 helicopter surveillance, to name three of the most seminal cases.91 But the rapid pace of technological progression92 means these decisions look more and more antiquated.93 The Supreme Court has tacitly acknowledged that the Fourth Amendment needs reimagining in the modern age: Carpenter v. United States’s94 holding that the third-party doctrine did not apply to cell-site location data boiled down to the fact that cellphones are just different, given their ubiquity and necessity.95 Drones might not be as ubiquitous, but their arguably novel impact on privacy expectations requires reasoned legal analysis addressing how they fit into the Katz96 schema. Judicial failure to grapple with how privacy interests are implicated by these technological advancements threatens to create an ever-more archaic state of Fourth Amendment doctrine.97
Yes, holdings on search and reasonability are not necessary if the court can dispose of a case on exclusionary rule grounds. Yet the juice is still worth the squeeze. Drones are variations on the same technological themes that plagued Carpenter; given the reaffirmation that searches can still be defined by “the Katz reasonable-expectation-of-privacy test,”98 how do drones fit into the picture? Does their frequent private use mean they violate no objective expectation of privacy? Or is their low cost a signal that law enforcement intends to use them so frequently that we need strong medicine to reinforce privacy rights? Do their stealth and agility change the calculus? What about the cameras they use — should courts pay special attention to whether they are equipped with high-powered zoom, infrared technology, or facial identification? While courts hesitate, law enforcement won’t. They will continue to seize upon new technology that aids in enforcement efforts.99 Judicial silence does not take place in a vacuum; it takes place in a broader system that uses judicial hesitation to empower the state at the cost of individual liberties.