In March a state Court of Appeals panel ruled 2-1 that township officials could not fly a drone over someone's backyard, take photos and use them to cite the homeowner for zoning violations, without first obtaining a warrant.
The action, the two judges said, violated the Fourth Amendment — the right to be protected against unreasonable searches.
Attorney William Burdette, who represents Todd and Heather Maxon, the couple sued by the township in 2019, had predicted the precedent-setting decision would "cause a ripple."
"We stood up for the little guy," Burdette previously said.
Neither Burdette, nor attorneys Todd Millar, of Traverse City or William Henn, of Grand Rapids, who have both represented the township in the case, could be reached for comment Wednesday.
Henn is representing the township in the request to the Michigan Supreme Court, records show.
The case began in 2019 when the township presented evidence in 13th Circuit Court against the Maxons that included drone photos of the couple's property taken without their permission.
The strategy to investigate possible code violations drew the ire of Judges Kathleen Jansen and Amy Ronayne Krause.
The two judges ruled in the majority March 18 that just because a new capability exists, that does not mean a homeowner's 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 had denied the Maxon's request to suppress the photos of their Long Lake Township property.
Appeals 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 doesn't matter, the two appeals court judges said — adding, 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 stated in their published opinion.
In a dissent, a third appeals court judge, Karen M. Fort Hood, said the U.S. Supreme Court previously ruled property plainly visible from a publicly navigable airspace is generally not subject to Fourth Amendment.
Attorney Robert Thall, representing the Michigan Townships Association, had filed a 49-page brief in support of Long Lake Township in the appeals case, on behalf of the MTA and the Michigan Municipal League, court records show.
The brief states that drone use by municipalities is increasing, and that government units use drones not just for code enforcement, but also for fire protection, police investigation, tax assessing, GIS mapping and aerial surveys.
"The importance of this case to municipal and constitutional jurisprudence cannot be overstated," Thall wrote.
Recent court filings show should the state's Supreme Court agree to hear the case, the township will argue that aerial surveillance like that which can be accomplished with a drone is not a search.
© 2021 The Record-Eagle (Traverse City, Mich.). Distributed by Tribune Content Agency, LLC.
