Michigan Court of Appeal Issues Strong Decision Restricting Government Drone Use

I learned from Greg McNeal's Twitter thread (and related blog post) of an interesting opinion issued by the Michigan Court of Appeals last week in which the court found that the use of a drone by a township to take aerial photographs of private property violated the property owners' reasonable expectations of privacy.

The case is Long Lake Township v. Maxon. A link to the opinion is here, a link to the dissent is here.

Summary of the Case

The township filed a civil action against the property owners, arguing that their property constituted an "illegal salvage or junk yard" in violation of town ordinances. The township relied on aerial photographs of the property taken in 2010, 2016, 2017, and 2018 that purportedly showed an increase in junk stored on the property. The township had used a drone to take the photos.

The property owners moved to suppress the photos, arguing that they had been obtained through an unlawful search in violation of the Fourth Amendment. In response, the township argued that the drone operator it had hired to take the photos had done so in a manner consistent with FAA regulations--noting that they had maintained a consistent line of site with the drone and that it was lower than 400 feet at all times. (A link to the FAA regulations that the township appears to be referencing is here, an FAA summary of the rules is here).

The court recognized that Michigan has a law that restricts individuals from using drones to capture photos, video, or audio recordings of other people in a manner that would invade others' "reasonable expectation of privacy."

The court first noted that in Kyllo v. United States, the United States Supreme Court had found that the use of a thermal imaging device on a home violated the Fourth Amendment. In Kyllo, the Court concluded:

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a "search" and is presumptively unreasonable without a warrant.

The Michigan Court of Appeals took pains to note that Kyllo's holding was not premised on whether the technology used was widely available--noting that other language in Kyllo stated that homeowners should not be "at the mercy of advancing technology" that might be able to see through walls.

The court then considered the cases, California v. Ciraolo (no Fourth Amendment violation where police conducted aerial observation of a defendant's yard from 1,000 feet up) and Florida v. Riley (aerial observation of greenhouse from 400 feet up did not constitute a Fourth Amendment violation). The court emphasized Justice O'Connor's concurrence in Riley, where she recognized that the plurality of the Court relied on FAA regulations governing how high the helicopter could fly, and concluded that compliance with FAA regulations alone does not determine compliance with the Fourth Amendment. Instead she found that "considerable public use of airspace at 400 feet and above" meant that Riley did not have a reasonable expectation that the curtilage of his property was protected from naked-eye aerial observation from 400 feet.

The majority of the Michigan Court of Appeals concluded that the use of the drone by the township was closer to the thermal imaging device used in Kyllo than the aircraft overflights in Ciraolo and Riley. The court noted that FAA regulations were relevant in this case because they demonstrated that drones were "qualitatively different from airplanes and helicopters," as they are smaller, more maneuverable, stealthy, and fly at lower heights. 

The court did not reach the determination of whether a drone overflight was trespassory, finding it unnecessary to do so. Instead, the court found that the determination that the drone use violated reasonable expectations of privacy was enough to establish a Fourth Amendment violation. The court also refused to craft a precise altitude test, instead concluding 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."

In a dissenting opinion, Judge Hood took issue with the majority's blanket distinguishing of Ciraolo and Riley. Recognizing that drones are smaller, Judge Hood noted there was no evidence that the photos captured were different than those that could be taken from a plane or helicopter at that altitude. Judge Hood further noted that the drone was flying in airspace in which the public could use drones, and emphasized that Kyllo involved technology that was not in general public use--not the case with drones which are generally available for people to use.

Analysis

Years ago, I wrote an article surveying state laws restricting law enforcement drone use. One of my main conclusions was that state-level litigation governing how law enforcement agencies could use drones and the evidence obtained from these drones, was necessary. Absent specifically-drafted legislating that put meaningful restrictions in place, the government would likely engage in broad drone use in light of Ciraolo and Riley. Such broad use could be restricted by laws, or by courts who could craft exceptions to the existing Fourth Amendment case law.

I concluded that leaving it in the hands of courts to carve out restrictions for government drone use (either through passing no laws or passing laws that simply reaffirm Fourth Amendment protections) was not the best approach, and that both privacy advocates and law enforcement advocates should support legislation. Legislation would permit evidence-based restrictions on particular types of drone use and leave law enforcement open to use drones in a manner that balanced potential privacy intrusions with the utility of new technology. These restrictions could be amended as technology develops. Courts, however, would not be in a position issue such carefully crafted restrictions, and would likely be faced with the options of broadly permitting government drone use, or stretching Fourth Amendment case law to craft restrictions that could not be amended or addressed by state legislatures.

This case is an example of the latter outcome. As far as I can tell, Michigan law does not restrict its law enforcement agencies' use of drones. Instead, the most the court cited was a law restricting private drone use--a law couched in broad language based on the Fourth Amendment concept of "reasonable expectations of privacy." As I argue in my article, laws like this provide no guidance for courts beyond what is already set forth in the case law, and are therefore have little to no practical impact. 

In the face of this dearth of meaningful restrictions, the court decided to craft a broad restriction of its own--a prohibition on all warrantless drone surveillance of private property. Law enforcement agencies in Michigan must now obtain a warrant before using a drone in this manner, or use a helicopter for such surveillance. This case is based on the Fourth Amendment, so the state legislature cannot write any laws to restrict the scope of the opinion. The only thing the government can do to try to undo this outcome is to appeal to the state supreme court.

Privacy advocates may cite this case as an example of why laws restricting government drone use are unnecessary. That would be a mistake. The dissenting opinion illustrates how courts could just as easily reach the opposite conclusion and permit government drone use. FAA regulations (which have developed since I wrote my article) now permit fairly flexible drone use--including altitude restrictions of below 400 feet--which may permit much closer imaging of private property. I suspect that other courts in similar situations may rely on Ciraolo and Riley to permit similar drone use.

In civil cases, a strong sign that you've reached a fair settlement is that both sides are unhappy with the outcome. The same is the case with drone restrictions. Privacy advocates would likely take a strong view of Fourth Amendment protections and would consider a legislative restriction approach to be a needless compromise. Law enforcement advocates would not want their ability to use new technology to be curtailed by laws or regulations. But using legislation to curtail specific restrictions on government drone use is the only way to balance the nuances of new technology with the blunt instrument of Fourth Amendment decision-making. Long Lake Township illustrates how failing to take this approach can come down against law enforcement interests, but its dissent should be just as much of a warning to those concerned with law enforcement overreach.

Michigan Residents File Pokemon Go Class Action Lawsuit

The attorneys at Pomerantz Law are at it again, and are attorneys of record in a Michigan class action lawsuit against Niantic and Nintendo. The allegations in the Michigan complaint overlap significantly with those in a Massachusetts class action lawsuit that I blogged about at the beginning of August filed by a Massachusetts resident. Both complaints were filed in the District Court for the Northern District of California.

Click On Detroit reports about the new class action -- which also alleges causes of action for nuisance and unjust enrichment -- filed by a Michigan couple living in St. Claire Shores, a suburban town located near Detroit that will be holding a Fence Arbitration meeting today for those who may have forgotten to mark their calendars. Reporting by Bloomberg Markets (on the lawsuit, not the Fence Arbitration meeting) can be found here.

A copy of the Complaint can be found attached to the Click on Detroit article. Its substance significantly overlaps with the Massachusetts Complaint, and it too includes multiple bold, italicized mentions of how "Niantic even placed three Pokéstops within the United States Holocaust Memorial Museum." That part never gets old.

One improvement in the Michigan Complaint is that it has more facts regarding how Pokémon Go affected the plaintiffs' lives. As you may recall, the Massachusetts Plaintiff's allegations were little more than a complaint about several people walking near his house and knocking on his door on a few occasions. The Michigan Complaint is more detailed. The factual allegations are largely copied from letters the Plaintiffs wrote to Niantic, and here is an example of some of that quoted language. Trigger warning: bold italics:

At any given moment there are at least a couple of hundred people in the park play[ing] this game, compared to the average of at least 15-20 in the park. The [Pokéstops and Pokémon gyms] . . . [are] an open invitation for the players to utilize our street, our lawns, looking in our windows . . . and so forth. There are at least 30 homes . . . that are affected by this. These players are loud, make threats, [are] intrusive, and I do not feel safe. My husband and I moved to our home almost two years ago because it was peaceful, quite, and safe. When I see people driving slow, looking into our home, walking on our property, looking into our vehicles, we do not feel safe. Neither do the neighbors. . . .

. . .

With all the traffic it is hard to tell who is playing the game, or casing out our street/park, someone who is looking to rob, rape or any other harm. . . . They park along our street that borders Wahby Park, we ask them to move and get threats and attitudes. I was threatened by a man who refused to leave. He was parked in front of my home. I had hardly any room to back out of my driveway. Mind you, he was also parked the wrong way on the street. . . . I truly hope you will take this into consideration, the news has already been in the park twice, and have interviewed neighbors on this issue.

To paraphrase, the plaintiffs live near Wahby Park which, in addition to being a great place for weddings, allegedly has six PokéStops, where players can collect items and place "lures" that attract Pokémon. This has led to a crisis of numerous people going to the park, and wreaking havoc in the surrounding neighborhood. Plaintiffs allege that players are walking on their yards, blocking driveways, and even include a picture of a potential hipster giving side-eye to the camera.

Yikes.

Plaintiffs seek to establish a class and use the same definition as the Massachusetts Plaintiff, which is:

All persons in the United States who own property (i) the GPS coordinates of which were designated by Defendants, without authorization, as Pokéstops or Pokémon gyms in the Pokémon Go mobile application or (ii) abutting property the GPS coordinates of which were designated by Defendants, without authorization, as Pokéstops or Pokémon gyms in the Pokémon Go mobile application.

For reasons I explain at length in this prior post, I think this class definition is likely to fail.

For a reason specific to this lawsuit, though, I think this Complaint has faces an additional, serious problem because the named plaintiffs do not appear to fall into the class. The plaintiffs include an illustration of the neighborhood as it appears in the app:

From this illustration, it appears that all of the PokéStops and Gyms are in the park, which is public property. The park is separated from all surrounding homes by a road. Accordingly, there appear to be no areas of private property that "abut" PokéStops or Gyms. This is a problem for the Complaint as a whole because the lead plaintiffs need to be members of that class. Plaintiffs might argue that their property falls within the 70-meter radius where people can interact with the stop or the gym, but this does not appear to fit the fairly specific, GPS-coordinate-based class definition.

I will continue to monitor both Pokémon Go class action lawsuits, and I will do my best to post updates as they proceed. I suspect that the plaintiffs in both will face some significant obstacles, but the law firm spearheading this effort doesn't appear to be slowing down at this point.

Is a Parrot's Statement Hearsay?

Fox News reports on this evidence exam hypothetical come to life:

A Michigan man’s wife is now a suspect in his May 2015 murder, newly obtained police reports show, and a winged witness may have heard the dead man’s final plea. 

An African grey parrot might’ve overheard Martin Durham as he pleaded with his shooter before the killer pumped five bullets into Durham’s body. The bird, Bud, was heard saying “Don’t f------ shoot” in a video taken shortly after Durham’s death, WOOD reported. 

“That bird picks up everything and anything, and it’s got the filthiest mouth around,” Duram’s mom, Lillian Duram, told WOOD. 

It’s unclear if police have seen this video, or if the bird’s utterance is even admissible as evidence.

Would the video be admissible as evidence of the victim's last words? Possibly. There are two major evidence law issues I can spot right off the bat. The first is whether this evidence would be unduly prejudicial to a criminal defendant charged with Durham's murder. The defendant may argue that the bird's statement is unreliable or that it could have originated from a source other than the victim. These possibilities, the Defendant may argue, render the bird's statement significantly more prejudicial than probative and warrant exclusion of the evidence.

I'm not sure how a debate over this question would turn out, and I doubt that there is precedent on the issue. The far more interesting (and clear-cut) issue, however, is whether the parrot's statement is hearsay.