Justices with the state's highest court heard oral arguments in a civil case from northwestern Lower Michigan, over whether the law requires township zoning officials to seek a warrant before flying a drone over a resident's property.
The case was argued Wednesday inside Powers Catholic High School, as part of the Michigan's Court Community Connections program, where official proceedings are held around the state, so high school students can easily attend, watch how the court works and ask questions of attorneys.
The bare minimum question came from an unnamed student, during a debriefing session in the school's auditorium, where students discussed the case with attorneys while, behind closed doors, the justices deliberated.
A ruling isn't expected for weeks, possible not until the end of the year, though attorneys did provide insight into the legal arguments in the case.
For example, William Henn, appellate attorney for Long Lake Township, said he didn't believe there was a "right line test" for when a homeowner has an expectation of privacy, while Michael Greenberg, an attorney representing Todd and Heather Maxon, the couple whose property was surveilled, said he disagreed.
"I don't think people should need to tarp off their backyard to maintain their expectation of privacy, at least against aerial surveillance," Greenberg said.
Attorneys for Long Lake Township previously acknowledged in court filings that township officials hired a drone pilot to conduct three flyovers of the Maxons' property — two flights in 2017 and one flight in 2018.
Township zoning officials said they believed Todd Maxon, who spends his free time repairing and maintaining 4-wheel drive vehicles on his five-acre property, had violated the township's zoning regulations.
The township's position is, that since these flights were in public airspace, complied with Federal Aviation Administration rules and took photos similar to those on free internet sites such as Google Earth, they were legal and didn't violate anyone's civil rights.
The Maxons, however, said the drone flights violated their Fourth Amendment's protection against unreasonable searches, that they were never informed of the flights and the township did not have a search warrant.
The Maxons' case attracted the interest of the Institute for Justice, the Arlington, Va.-based nonprofit law firm where Greenberg works.
"Our specific mission is to defend constitutional rights against government encroachment," Greenberg told the students. "That's what made this case so interesting to me and my colleagues."
Students also wanted to know whether technology had outpaced the law's ability to keep up (probably); if photos were available for free on Google Earth, why the township spent thousands in taxpayer money on the drone flights (the free photos weren't as good as the drone photos); and how attorneys prepared to be peppered, on the fly, with questions from the justices (they give up days of sleep).
Oral arguments from the attorneys were less practical than the students' questions, and more lofty.
"This case presents this court a choice," Greenberg said. "It can keep the status quo, under which executive officials in this state have a blank check to use a drone to snoop around our private backyards whenever they want, for whatever reason they want, or it can hold they may do so only when a neutral judicial officer agrees there is good reason."
Just as in a criminal case, Greenberg said, officials could interview witnesses, use publicly available information and anonymous tips to argue probable cause when asking a judge for a warrant.
Henn said the simplest and most direct way for the court to decide the case, was to affirm last year's Court of Appeals decision, stating that protections against evidence obtained from an unlawful search applies to criminal — not civil — investigations.
"The United States Supreme Court has held that visual observation is not a search," Henn said. "Their property, their backyard was not concealed from the neighbors. We have evidence that shows that all of this material that accumulated was visible from adjacent properties."
Several justices asked what the result might be, in the future, of unfettered use of drones by municipal officials.
Greenberg argued this was an appropriate worry, and went to the heart of the case, while Henn said drones might someday pose such a threat, but that this wasn't the case in which to make that argument.
"It's easy with modern-day culture, with modern-day media, to envision terrible circumstances where drones could be used in ways that are incredibly invasive," Henn said. "The township has never taken the position that a drone could not be used in a way that could implicate Fourth Amendment concerns."
While students continued their questions, a court representative, Daniel Brubaker, explained to students how the justices would reach their decision.
"If you're wondering what they're doing while you are in here, the justices are sitting around a table, all talking to each other," Brubaker said. "It will be discussion, it will be attempts at persuasion, it will be deliberation and then ultimately they will vote."
"And I for one, think it's a beautiful thing, to see conflicts decided by discussion, deliberation and voting," Brubaker said.
The justices could take no action at all and let the COA decision stand, they could provide an opinion overturning the COA, or they could ask for additional briefs from attorneys to address a new issue of law, Brubaker said.
A decision is expected sometime before the end of the year.
© 2023 The Record-Eagle (Traverse City, Mich.). Distributed by Tribune Content Agency, LLC.
