Zoning dispute; Whether the use of a drone to take aerial photos of defendants’ property violated their reasonable expectation of privacy; MCL 259.322(3); Florida v Riley; California v Ciraolo; Application of the Fourth Amendment in a civil case; Kivela v Department of Treasury; Whether a search occurred under the Fourth Amendment; People v Brooks; Effect of developing surveillance technology on the Fourth Amendment; Kyllo v United States; Intrusions into certain airspace as a trespass; United States v Causby

The court held that the trial court erred by denying defendants-property owners’ motion to suppress drone photos used by plaintiff-township in this zoning dispute. Plaintiff alleged defendants were operating an illegal salvage or junk yard on their property in violation of a township ordinance. In support it offered aerial photos taken by a drone. Defendants moved to suppress the photos and resulting evidence claiming plaintiff’s actions constituted an unlawful search. The trial court denied their motion, finding they did not have a reasonable expectation of privacy. On appeal, the court first noted that “the trial court correctly determined that noncompliance with FAA regulations does not, per se, establish that a Fourth Amendment violation occurred.” However, it proceeded to find 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.” The court noted that drones are “intrinsically more targeted in nature than airplanes and intrinsically much easier to deploy.” In addition, “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.” Further, drones “fly below what is usually considered public or navigable airspace. Consequently, flying them at legal altitudes over another person’s property without permission or a warrant would reasonably be expected to constitute a trespass.” Finally, the court noted that it would be “unworkable and futile to try to craft a precise altitude test.” However, it concluded that “persons have a reasonable expectation of privacy in their property against drone surveillance, and therefore a governmental entity seeking to conduct drone surveillance must obtain a warrant or satisfy a traditional exception to the warrant requirement.” Reversed and remanded.