As Drones have become more advanced, and more affordable, many police agencies have obtained these aerial vehicles. Drones serve many purposes including; search and rescue operations, patrolling large events, and conducting searches during investigations. 

While some states have passed laws regarding police use of drones, Michigan has not. At this time, police agencies do not need a warrant to use drones for search and rescue operations or patrolling large events like sporting events, or fairs. However, some could argue that Police agencies are required to obtain a warrant prior to using a drone when conducting an investigation.

A recent Case and series of Opinions is making its way through the Appeals process in Michigan. This starts with a Michigan Court of Appeals opinion from 2021 addressed the issue of warrantless drone searches in Long Lake Township V Todd Maxon.[1] The court examined whether the warrantless aerial drone search of Maxon'sproperty was a violation of the Fourth Amendment. The Court held the warrantless drone search of Maxon's property was a violation of the Fourth Amendment.

The Court found that “persons have a reasonable expectation of privacy in their property against drone surveillance, and therefore a governmental entity seeking to conduct drone surveillance must obtain a warrant or satisfy a traditional exception to the warrant requirement.”[2]

In addressing Kyllo, the court reasoned “just because technology develops new and innovative ways in which a person's privacy can be violated must not dictate whether that person retains a legitimate expectation of privacy…”[3]

The Court further held that “Drones are qualitatively different from airplanes and helicopters: they are vastly smaller and operate within little more than a football field's distance from the ground, a drone is therefore necessarily more intrusive into a person's private space than would be an airplane overflight.  Unlike airplanes, which routinely fly overhead for purposes unrelated to intentionally-targeted surveillance, drone overflights are not as commonplace, as inadvertent, or as costly. Drones are intrinsically more targeted in nature than airplanes and much easier to deploy.  Furthermore, given their maneuverability, speed, and stealth, drones are—like thermal imaging devices—capable of drastically exceeding the kind of human limitations that would have been expected by the Framers not just in degree, but in kind.”[4]

The Court concluded that “much like the infrared imaging device discussed in Kyllo; low-altitude, unmanned, specifically-targeted drone surveillance of a private individual's property is qualitatively different from the kinds of human-operated aircraft overflights permitted by Ciraolo and Riley.”[5]

This decision was appealed to the Michigan Supreme Court and was vacated and remanded for the Appeals Court to address the applicability of the exclusionary to the images obtained by the warrantless drone search.[6]

The Court of Appeals on remand held the exclusionary rule should not be applied on the grounds the images were obtained for a zoning dispute, and not for a criminal investigation, and therefore excluding the images would not serve the intended purpose of the exclusionary rule.[7] The Court assumed there was a Fourth Amendment violation in their analysis of whether the exclusionary rule should be applied.

This case is currently pending on application to the Michigan Supreme Court on Plaintiff's petition.

It appears the Fourth Amendment standard in the Initial Michigan Court Appeals opinion is the current standard for which government agencies should operate under. However, the Michigan Supreme Court's May 20, 2022, Order vacating and remanding the original Long Lake I Michigan Court of Appeals decision muddies the waters. The Michigan Supreme Court vacated the entire opinion from Long Lake I, leaving us with the most recent Long Lake II Opinion. Since the Court's Long Lake II Opinion assumed there was still a Fourth Amendment violation, I would argue there is currently a requirement for government agencies to obtain a warrant prior to conducting a drone search.

So Where Does Michigan Stand On Whether Police Need A Warrant to Use a Drone?

In conclusion, police do not need a warrant to use a drone for search and Rescue operations, or to patrol large events. However, police arguably do need a warrant to conduct a search with a drone during an investigation. 

This is a very evolving area of the law that we should keep an eye on. If you have questions regarding the Governmental use of aerial vehicles or Constitutional violations of Clients rights, you can contact Joe Pernicano at pernicanolaw.com, (313) 618-5914 or [email protected].

[1] 336 Mich App 521, (2021) (Long Lake I).

[2] Id. at 541.

[3] Id. at 533 citing Kyllo, 533 U.S. at 29 (2001).

[4] Id. at 539.

[5] Id. at 538, citing California v. Ciraolo, 476 U.S. 207 (1986) & Florida v. Riley, 488 U.S. 445 (1989).

[6] Long Lake Township v. Todd Maxon, Order, MSC No. 162946, May 20, 2022.

[7] Long Lake Township v Maxon ___ Mich ___973 NW2d 615 (2022) (Long Lake II).