September 28, 2021

September 28, 2021

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Spy in the Sky Challenges Our Fourth Amendment

by | Apr 12, 2021 |

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The government use of drones has become another front in the war on privacy. A Michigan Court of Appeals case asks the question of whether a drone search is reasonable or not.

In 2008, Long Lake Township filed a zoning complaint against Todd and Heather Maxon. An agreement was entered in to settle the complaint. Then, in 2018 the township filed a civil action, claiming that the defendants had significantly increased the scope of the junk cars and other junk material being kept on their property,” which constitut[ed] an illegal salvage or junkyard.” As proof, the township provided aerial photographs taken by a drone. The Maxons moved to suppress the aerial photographs and all evidence obtained by [p]laintiff from its illegal search of their property.” They argued that their property’s aerial surveillance was an unlawful search in violation of the Fourth Amendment. The township argued that using a drone to photograph the Maxons property was not a violation of the Fourth Amendment since the property was visible from above.

The trial court denied the Maxons motion to suppress the aerial photographs. They based their decision on the cases Florida v Riley, which found that the visual observation of the defendants premises from a helicopter did not constitute a search under the Fourth Amendment.” This led to the Maxons appealing the trial courts decision, which brings us to the case Im reviewing today.

In general, courts do not consider something a search if the item observed was in plain view, the idea being that if you expected something to be private, you would not have put it where it was publicly visible. In the case California v Ciraolo, the Supreme Court found that observing someones property from an aircraft at 1,000 feet did not violate the Fourth Amendment since the aircraft was operating in publicly accessible airspace. A few years later, the court found in the Florida v Riley mentioned above that observations from a helicopter flying at 400 feet also did not violate the Fourth Amendment. These cases are the basis by which the Michigan Court of Appeals made its decision.

Opinion

In a 2-1 decision, the Michigan Court of Appeals found that, because the Maxons had taken steps to prevent observation from the ground, they expected privacy, at least against casual observation. The court found that:

We conclude that; much like the infrared imaging device discussed in Kyllo; low-altitude, unmanned, specifically-targeted drone surveillance of a private individuals property is qualitatively different from the kinds of human-operated aircraft overflights permitted by Ciraolo and Riley. We conclude that drone surveillance of this nature intrudes into personsreasonable expectations of privacy. Hence, such surveillance implicates the Fourth Amendment and is illegal without a warrant or a traditional exception to the warrant requirement.

Long Lake Township v. Todd Maxon and Heather Maxon

In the Kyllo case mentioned, police used an infrared imaging device to scan the building for heat that emanates from the high-intensity lights used in indoor marijuana grow houses. The Supreme Court held that since these imaging devices were not generally available to the public, using them constituted an illegal search. Apparently, in this court’s eyes, using an unmanned drone to surveil private property is different from using a manned aircraft. The court found that while a hovering helicopter does not violate a persons privacy, a drone does. Karen M. Fort Hood dissented from the courts opinion. She claims that using a drone is indistinguishable from that of a helicopter when it comes to the Fourth Amendment. So who is right, the majority of the court or the lone dissenter?

Conclusion

While I believe the majority came to the right decision, I also agree with the dissent that the difference between using a drone or a helicopter may make little difference in a question of privacy. While a helicopter is quite noisy, I doubt anyone would run outside to cover up their backyard should they hear one approach. In this case, I believe both the majority and the dissent miss a critical point. The question that did not appear to be considered by the court was the Fourth Amendment’s intent.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,

U.S. Constitution, Amendment IV

The Fourth Amendment does not protect us from unreasonable observation but from unreasonable searches.

To look over or through for the purpose of finding something; to explore; to examine by inspection; as, to search the house for a book; to search the wood for a thief.

Search – Websters 1828 Dictionary

Courts have conflated the Constitutions protection against unreasonable searches into a right to privacy. While there is an element of privacy involved, the Fourth Amendment intends to protect us from snooping government officials, not from any specific method of that snooping.

If a law enforcement officer sees something on your porch while driving through the neighborhood, we wouldnt consider that a search. Similarly, if someone in a police helicopter observes something in your back yard, that is not a search. If, however, an officer parks outside your home or hovers around your property in a helicopter for the purpose of finding something, then they are searching. And unless they have a warrant or a reasonable exigent circumstance, that is a violation of the Fourth Amendment.

If the Long Lake Township had probable cause, supported by oath or affirmation, that the Maxons were violating the law, then all they had to do was get a warrant, and the drone surveillance would have been reasonable. Whether the township did not get a warrant because they didnt have probable cause or because they were just too lazy to bother with it is a discussion for another day.

While I am happy for the Maxons, I am concerned by the Fourth Amendment’s ongoing abuse. By focusing on privacy rather than searches, the courts have twisted themselves, and by extension, everyone else, into knots with questions of where and when someone has an expectation of privacy. If those on the court would use the language of the Constitution and decide cases based on the reasonableness of the search, rather than the method used, not only would our rights be better protected, but we would have fewer twisted court opinions to deal with.

Paul Engel

Author and speaker Paul Engel has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. That experience helps Paul explain difficult concepts in a way most people can understand. As one manager described, “Paul can take the most complex idea and explain it in a way my grandmother can understand.” Freely admitting that he “learned more about our Constitution from School House Rock (a Saturday morning cartoon) than in 12 years of school,” he says that anyone can be a constitutional scholar. Since 2014 I have been helping everyday Americans read and study the Constitution of their country and teaching the rising generation to be free. Using news and current events as a springboard, I explain the Constitution and encourage others to stand up and secure the blessings of liberty for themselves, their children, and the nation.

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