In Long Lake Township v Maxon (Docket No 349230), a case remanded from the Michigan Supreme Court back to the Court of Appeals, the Michigan Court of Appeals on September 15, 2022, permitted use of evidence obtained in violation of the Fourth Amendment to the United States Constitution. The opinion is scheduled for publication, meaning it will become precedential for future cases in Michigan.

The case involves the operation of a “junk yard” with old cars on a property owned by the Maxons. The Maxons in a prior case entered into a settlement that prohibited expansion of the junk yard. The township received complaints from neighbors that the junk yard had expanded, but there was no way to see if that was occurring because trees and vegetation completely blocked the view of the five acre property. One could wonder … if I can’t see it and thus don’t know it exists … can it really be a nuisance? Inquiring minds did wonder, however, and the township hired a private drone operator to fly over the property over four different years (2010, 2016, 2017, and 2018) to take pictures from above. The images apparently supported that the junk yard had expanded and so the township began a private nuisance civil suit hoping to enjoin the operation of the junk yard.

In an earlier go at the case in the Court of Appeals, the Court concluded that the use of a drone to surveil the property violated the Maxons rights under the Fourth Amendment of the United States Consitution. This seemed a victory for the right of citizens to be free from illegal search and seizures and the intrusion upon a citizens reasonable expectation of privacy. The township however appealed and wanted the Supreme Court to decide that the evidence obtained – despite it being obtained in violation of the Constitution – should be permissible to use because US and Michigan law have been ruled to not support exclusion of illegally obtained information in civil cases. The exclusion is only applicable to criminal and quasi-criminal proceedings.

The opinion of the Court of Appeals states:

“United States Supreme Court precedent regarding the exclusionary rule’s use in civil cases can be succinctly summarized as follows: it only applies in forfeiture actions when the thing being forfeited as a result of a criminal prosecution is worth more than the criminal fine that might be assessed. That’s it.”

It is with noting that this is a two-judge opinion with the third judge dissenting and laying out some solid arguments for why this evidence should be excluded. One of his best arguments is that usually the evidence is obtained by the police and then used by some other agency and thus exclusion would not deter the conduct by the police in the future. Here, the exclusion would almost certainly have stopped the practice of illegal drone surveillance by townships.

Judges Elizabeth L. Gleicher and Amy Ronayne Krause concluded by saying:

“The exclusionary rule is an essential tool for enforcing the meaning of the Fourth Amendment and discouraging law enforcement officers from trampling on constitutional rights. The rule has been roundly criticized, but survives as demonstrated in the majority and dissenting opinions in Utah v Strieff, 579 US 232; 136 S Ct 2056; 195 L Ed 2d 400 (2016). Here, the object of the state officials who allegedly violated the Maxons’ rights was not to penalize the Maxons, but to abate a nuisance through the operation of equitable remedies. The proceedings are remedial, not punitive. The exclusionary rule was not intended to operate in this arena, and serves no valuable function.”

Does this mean that drone intrusion will now become commonplace in zoning enforcement? Maybe is the answer. The reason it is maybe is that the Court in the majority opinion pointed out that the aggrieved property owner did have recourse to right the wrong. It said:

“Finally, the Maxons have a powerful remedy for the alleged violation of their Fourth Amendment rights—a civil lawsuit sounding in constitutional tort. See Bauserman v Unemployment Ins Agency, ___ Mich ___; ___ NW2d ___ (2022) (Docket No. 160813). In a criminal case, application of the exclusionary rule both punishes and penalizes the police. It also benefits the defendant, often by erasing the evidence needed to prosecute. A civil action for damages resulting from a constitutional violation also punishes and penalizes, achieving deterrence. We therefore respectfully disagree with our dissenting colleague that application of the exclusionary rule in this case is necessary to achieve deterrence. The social cost of excluding evidence in a case such as this would be substantial, however, as a public nuisance would potentially remain unabated and incapable of its own remedy.

The township may have won the day, but they may find themselves on the short end of a civil suit for a constitutional tort. And, they did not even convince the entire panel of the Court of Appeals. Judge Kathleen Jansen said in her dissenting conclusion:

“I would look beyond the Fourth Amendment, and thus the lack of guidance from the United States Supreme Court regarding application of the exclusionary rule in this situation, and declare that suppression is the proper remedy in this case pursuant to Const 1963, art 1, § 11. I would reverse the trial court order denying defendants’ motion to suppress evidence, and remand for entry of an order suppressing all photographs taken of defendants’ property from a drone.”

To me personally, it seems wrong that a government entity can be rewarded for knowingly violating a citizen’s constitutional rights by permitting use of the illegally obtained information against that citizen. The citizen, in my opinion should not have to resort to an expensive and uncertain civil suit in hopes of recovering for the wrong committed. This is especially so when that would be unnecessary if the government would follow the law. How is a violation of the law to stop a violation of the law justified? I align more with the minority than the majority on this one … but the precedent says you can use drone surveillance if you are willing to risk a civil suit for constitutional torts.