The exclusionary rule does not apply to civil enforcement proceedings that carry out local zoning and nuisance ordinances and seek only prospective, injunctive relief, the Michigan Supreme Court has held.
The justices affirmed a ruling from the the Court of Appeals in this long-running dispute between a township that used an unmanned aerial drone to take photos of a couple's property in a civil nuisance abatement proceeding.
“Michigan aligns with courts across the nation in that, as a general matter, we apply the exclusionary rule in the context of criminal proceedings,” Justice Brian K. Zahra explained. “This Court has rarely applied the rule in civil proceedings. In fact, outside of the criminal context, this Court has only ever applied the rule to searches related to quasi-criminal legal matters or to the warrantless extraction of blood from a person. [W]e decline to extend application of the exclusionary rule to civil enforcement proceedings that effectuate local zoning and nuisance ordinances and seek only prospective, injunctive relief.”
The high court declined to address whether using a drone under the circumstances here is an unreasonable search in violation of the United States or Michigan Constitutions.
The unanimous decision is Long Lake Twp. v. Maxon ( MiLW 06-107987 , 22 pages).
Aerial surveillance
In 2018, Long Lake Township brought a civil action for a zoning ordinance violation against Todd and Heather Maxon.
Aerial photographs taken over the years showed a “significant increase in the amount of junk being stored” on the Maxon’s five-acre parcel in violation of a 10-year-old settlement agreement.
The Maxons launched a flurry of objections. They moved to suppress the photos and all evidence the township acquired “from its illegal search of their property.”
Using a drone to take photos and conduct aerial surveillance of their property constituted an unlawful search in violation of the Fourth Amendment and did not comply with Federal Aviation Administration regulations, they claimed.
Very little, if any, of the Maxon’s property is visible from the ground; but because it was visible from above, the township said there was no subjective reasonable expectation of privacy.
The Grand Traverse County Circuit Court agreed. It denied the Maxons’ motion to suppress, adding that FAA regulations are “safety rules and [did] not define the scope of the Fourth Amendment.”
Original appellate decision
The Maxons’ first appeal was successful.
“Our holding today is highly unlikely to preclude any legitimate governmental inspection or enforcement action short of outright ‘fishing expeditions,’” Judge Kathleen Jansen wrote in 2021. “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 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.”
Ronayne Krause joined Jansen’s decision.
But Judge Karen Fort Hood dissented. While she also was “deeply concerned about the particularly intrusive nature of drones as compared to other aircraft with respect to the Fourth Amendment and the right to be free from unreasonable searches,” those concerns weren’t enough “to sidestep the precedent by which we are bound.”
The high court first weighs in
In April 2022, the Michigan Supreme Court granted leave to appeal, directing Long Lake Township to address whether it violated the Maxons’ Fourth Amendment rights by using an unmanned drone to take aerial photographs of the appellees’ property for use in a zoning and nuisance enforcement.
But in May, the justices reversed course and nixed their earlier order to schedule oral argument. Instead, the high court vacated the appellate judgment and remanded the case. On remand, the appeals court was to tackle the additional issue of whether the exclusionary rule applied.
2023 appeals court decision
Gleicher said the U.S. Supreme Court has “repeatedly rejected” the use of the exclusionary rule in civil cases.
“The United States Supreme Court has explained that the purpose of the exclusionary rule is twofold: to deter police misconduct, and to provide a remedy where no other remedy is available,” she pointed out. “When analyzed under the federal or the Michigan Constitution, suppression of the drone evidence does not serve these goals.”
In fact, Gleicher noted, Supreme Court precedent about the use of the exclusionary rule 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.”
Michigan law is in sync with this limited approach. And the state constitution includes a provision that restricts application of the rule, saying in pertinent part that the “ provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state. [Emphasis added.]”
Using this language and prior caselaw, Gleicher said the question to be answered was if there was a “compelling reason” to expand the exclusionary rule to civil zoning actions.
“[T]he exclusionary rule is intended to deter police misconduct, not that of lower-level bureaucrats who have little or no training in the Fourth Amendment,” Gleicher wrote. “There is no likelihood that exclusion of the drone evidence in this zoning infraction matter will discourage the police from engaging in future misconduct, since the police were never involved in the first place. Rather, exclusion of the drone evidence likely will deter a township employee who works in the zoning arena from ever again resorting to a drone to gather evidence of a zoning violation. This is not the purpose of the exclusionary rule.”
The public’s interest in zoning regulation enforcement vastly outweighed the benefit of suppressing the evidence. Despite its being roundly criticized, 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,” Gleicher said.
Costs and benefits
Zahra said it was clear that applying the exclusionary rule “involves weighing the costs and benefits in each particular case.”
Here, suppressing the drone photos and requiring the township to initiate new surveillance methods would cause a delay in its ability to bring the Maxons into conformity with local zoning and nuisance ordinances, the justice noted.
Excluding the photos might discourage the township or other municipal officials from using drones in an “intrusive and potentially unconstitutional manner,” but that deterrence would be minimal.
“While we do not totally foreclose the possibility that some other government action may be of such an aggressive nature that a court may conclude that it is appropriate to apply the exclusionary rule to a related proceeding, the facts presented in this case fall far short of such behavior,” Zahra said. “Under these facts, it is unreasonable to believe that excluding the photographs and video would deter future misconduct by law enforcement or any other actor in any way.”
The justice agreed with the appeals court that the exclusionary rule “was not intended to operate in this arena,” and applying it here “would serve no valuable function.”
“We hold that the costs of applying the exclusionary rule in this case would outweigh the benefits,” he wrote. “Applying the exclusionary rule would prevent the Township from effectuating its nuisance and zoning ordinances a serious cost. It would do so for little benefit given that exclusion of the photographs and video here would not deter future misconduct by law enforcement officers or their adjuncts, proxies, or agents.”
The matter returns to the Grand Traverse County Circuit Courtfor further proceedings.
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