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On The Front Lines

No, the Government Should Not Be Allowed to Use Warrantless Drone Surveillance to Snoop on Citizens at Home or Spy on Private Property


Long Lake Township v. Maxon

LANSING, Mich. — The Rutherford Institute is pushing back against efforts by government officials to use warrantless aerial drone surveillance to snoop on citizens at home and spy on their private property.

In filing a joint amicus brief with Cato Institute in Long Lake Township v. Maxon, Institute attorneys are calling on the Michigan Supreme Court to hold government officials accountable for violating the Fourth Amendment by not obtaining a search warrant before using a drone to take aerial photographs of private property, which was not observable from the ground, in order to gather evidence of a civil zoning violation.

“Americans are being swept up into a massive digital data dragnet that does not distinguish between those who are innocent of wrongdoing, suspects, or criminals. Aerial drone surveillance has become a de facto snitch for the police state,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “By subjecting Americans to surveillance without their knowledge or compliance, the government has erected the ultimate suspect society. In such an environment, there is no such thing as ‘innocent until proven guilty.’”

In 2008, Long Lake Township brought a zoning action against Todd Maxon, alleging that he was using his five-acre property where he lives as an illegal salvage or junkyard due to having automobiles which he worked on fixing up as a hobby. The case settled that year in Maxon’s favor with a dismissal and the Township agreeing to reimburse a portion of his attorneys’ fees. However, the government did not stop in its pursuit to penalize Maxon and his wife. In 2010, 2016, 2017, and 2018—without obtaining any search warrant—Township officials used a drone to take aerial photographs of the Maxons’ property, which was not visible from the ground because it is blocked by buildings and trees. The Township then filed another zoning action in 2018, alleging that the Maxons had increased the scope of the junk cars and material on their property. The Maxons argued that the aerial surveillance and photographs by the drones of their property was an unlawful search in violation of the Fourth Amendment and should therefore be excluded from evidence because people do not reasonably expect drones with high powered cameras to surveil their private property at relatively low altitudes. The trial court denied the Maxons’ motion to suppress the images.

Noting the maneuverability, speed, and stealth of drones which could fly directly up to an open bathroom window, the Michigan Court of Appeals ruled that persons do have a reasonable expectation of privacy in their property against drone surveillance and that government officials must therefore obtain a warrant for such surveillance. However, although the Court of Appeals held that government officials had violated the Fourth Amendment, the court further held that the exclusionary rule does not apply in civil cases to suppress unconstitutionally obtained evidence. The Maxons appealed to the Michigan Supreme Court. In weighing in before the Court on behalf of the Maxons’ right to be free from warrantless aerial drone surveillance, The Rutherford Institute and Cato Institute warned that failure to apply the exclusionary rule will create a roadmap for the government to circumvent Fourth Amendment protections by simply classifying its fines as “civil” to punish people for violating its laws and ordinances.

Clark M. Neily, III and Laura A. Bondank of the Cato Institute helped advance the arguments in the Long Lake Township v. Maxon amicus brief.

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.


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