Does the Fourth Amendment, which protects against “unreasonable searches and seizures,” prohibit warrantless drone surveillance? The Supreme Court has yet to answer that question, but an appeals court in Michigan recently considered the question, and in an opinion written by Judge Kathleen Jansen answered “Yes.” The court’s analysis is particularly noteworthy in that it relied heavily on Fourth Amendment cases besides those dealing specifically with aerial surveillance and may encourage other judges to do likewise when considering the constitutionality of warrantless drone surveillance.
The facts of the case, Long Lake Township v. Todd Maxon, are as follows: officials in Long Lake Township, Michigan alleged that a couple, Todd and Heather Maxon, had violated local zoning ordinances by keeping an excessive number of junk cars and other materials on their property. To support its case against the Maxons, Long Lake Township attached photographs of the Maxon property taken via drone. The Maxons moved to suppress these photos, arguing that Long Lake Township’s warrantless photography of their property from the air constituted a violation of the Fourth Amendment.
Since 1967, the touchstone of Fourth Amendment has been the so‐called Katz test, codified by Justice Harlan in his solo Katz v. United States concurrence. Under the test, a government official is deemed to have conducted a Fourth Amendment search if two conditions are met: 1) the subject of surveillance has exhibited a subjective expectation of privacy, and 2) that subjective expectation is one society as a whole is prepared to accept as reasonable.
The Supreme Court has considered the constitutionality of aerial surveillance in three cases from the 1980s (California v. Ciraolo, Florida v. Riley, Dow Chemical v. United States) and held in all three that that manned warrantless aerial surveillance does not violate the Fourth Amendment.