# The Drone That Never Leaves: What the Law Actually Permits Over Your Client’s Property **JD Morris** COO & CoFounder LexAxiom | Agentic AI for the Business of Law | Kazeon → EMC | Dell · VMware · Cisco | Texas A&M MLS Law | Columbia MBA | Berkeley MBA | GW MEng | Auburn Physics February 19, 2026 **THE TECHNOLOGY BLIND SPOT** *The Unprotected Sky | Part 1 of 4 | A Blog Series on Drone Surveillance, Privacy Law, and the Fourth Amendment* Todd Maxon was walking his dog with his kid when he saw it. “I walk out of my house, with my dog and kid, and here’s a drone, directly above me,” he recalled. The drone had already been above his five-acre property in Long Lake Township, Michigan on two previous occasions. Each time, it captured high-resolution photographs and video of his backyard. Each time, the Long Lake Township official who hired the drone operator never obtained a warrant. The Maxon property sat behind trees that blocked any view from the road. Township officials concluded that the road-level blind spot was precisely the problem. If they could not see the alleged zoning violations from the street, they needed something that could fly above the fence line. On May 3, 2024, the Michigan Supreme Court handed Long Lake Township exactly what it needed. The court held, unanimously, that government agencies conducting warrantless drone surveillance for civil enforcement purposes face no remedy in court even if the surveillance violated the Fourth Amendment. The exclusionary rule, the unanimous court held, does not apply to zoning and nuisance enforcement proceedings seeking only injunctive relief. The ruling created something without precedent in American constitutional law. A category of government surveillance now exists that faces zero judicial consequence when it violates the Constitution. This is not a story about one eccentric township in northern Michigan. It is a story about structural incentive, and the incentive runs in one direction. Government agencies pursuing civil enforcement now have reason to fly first and justify later, because the cost of violating the Fourth Amendment in that context has been set at zero. The Michigan Supreme Court declined to rule on whether the drone surveillance itself was constitutional, which means the underlying violation remains unaddressed and the remedy has been eliminated. You cannot have a remedy for a violation the court refuses to identify. The Maxons won nothing. Call this the Civil Enforcement Gap. Governments cannot send code enforcement officers onto your property without consent or a warrant. They cannot compel entry into your client’s business to document an alleged nuisance. They cannot station officers at the fence to peer into your client’s backyard. But a drone can fly over that same property, at low altitude, on repeated occasions, capturing high-resolution photographs and video, and face no consequence in court if the search turns out to be unconstitutional. Long Lake Township v. Maxon, 15 N.W.3d 118 (Mich. 2024), is the first state supreme court decision to say so on the record. The Technology Blind Spot series exists because the systematic gap between what technology permits and what attorneys believe it permits costs clients their rights before any motion is ever filed. Every criminal defense attorney in the country already knew about the exclusionary rule. Most did not know the exclusionary rule comes with an exception large enough to fly a drone through. ## What Maxon Actually Held Long Lake Township v. Maxon, 15 N.W.3d 118 (Mich. 2024), held that the exclusionary rule does not apply to civil zoning and nuisance enforcement proceedings seeking only prospective injunctive relief. Government agencies can fly drones over your clients’ properties without warrants, collect photographs and video, and introduce that evidence in civil proceedings regardless of whether the surveillance violated the Fourth Amendment. Your intake process does not currently account for this risk. The ruling rests on three procedural steps. The Michigan Court of Appeals first held in 2021 that the drone surveillance violated the Fourth Amendment. Long Lake Township v. Maxon, 336 Mich. App. 521 (2021) (Long Lake I). The Michigan Supreme Court then remanded not on whether the surveillance was unconstitutional but on whether the exclusionary rule applied to a civil enforcement proceeding. Id., 509 Mich. 871 (2022). On remand, the Court of Appeals held the exclusionary rule inapplicable. The Michigan Supreme Court, in a unanimous opinion by Justice Zahra, affirmed. At no point did the Michigan Supreme Court rule on whether the drone surveillance itself violated the Constitution. That procedural path is the holding’s practical consequence. The court did not say the surveillance was constitutional. It said the remedy for any unconstitutionality does not apply here. For government agencies reading the opinion, the practical effect is identical to a ruling that the surveillance was lawful. ## The Doctrinal Foundation: Three Cases That Built the Box The technical foundation requires three Supreme Court cases. California v. Ciraolo, 476 U.S. 207 (1986), established the baseline: officers observing a fenced backyard from an airplane at 1,000 feet conducted no Fourth Amendment search, because the observation came from publicly navigable airspace that any member of the public could legally occupy. Florida v. Riley, 488 U.S. 445 (1989), extended the logic to a helicopter flying at 400 feet. The court, in a fractured plurality opinion, held that no reasonable expectation of privacy exists against aerial observation from airspace open to public use. Both cases involved manned aircraft making single passes over targeted property. Neither involved aircraft hovering at low altitude on repeated occasions, taking high-resolution photographs and video of a specific residential property. The Michigan Court of Appeals recognized the distinction in Long Lake I, holding that persons have “a reasonable expectation of privacy in their property against drone surveillance” and that government entities seeking to conduct such surveillance must obtain a warrant. The Michigan Supreme Court in the 2024 decision did not disturb that holding. It declined to address it. The FAA controls airspace from the surface to 400 feet above ground level. Any drone operator holding a Part 107 Remote Pilot Certificate may fly within that corridor. The FAA has no mandate to regulate privacy. As of July 2025, 822,039 drones had registered with the FAA, with 433,407 carrying commercial registrations. The equipment is affordable, legal to operate, and widely available. What remains unresolved is what government agencies must do before they point it at your client’s property. The third case is Kyllo v. United States, 533 U.S. 27 (2001), which held that technology-enhanced surveillance revealing “intimate details” of the home—in that case, thermal imaging—constitutes a search when the technology is “not in general public use.” Kyllo creates the doctrinal pressure point for enhanced drone sensors, a question Part 4 of this series addresses directly. For purposes of the civil enforcement gap, Kyllo matters because it establishes that the “navigable airspace” doctrine from Ciraolo and Riley is not unlimited. Technology can cross a constitutional line even when the physical position of the observer does not. ## The Case for the Township The government’s position is stronger than the Maxons’ advocates acknowledge, and it deserves a direct statement before any response. Zoning enforcement exists to protect property values and community standards through mechanisms of democratic accountability. Long Lake Township did not surveil an innocent homeowner without predicate. The Maxons had already entered a 2008 settlement agreement resolving a prior zoning enforcement action. The township’s 2018 drone flights were an attempt to verify compliance with a legal obligation the Maxons had already accepted. This is not a case about suspicionless surveillance of a person the government had no basis to investigate. The Michigan Supreme Court did not improvise its method. Writing for a unanimous court, Justice Zahra held: “the costs of excluding the drone evidence outweighed the benefits of suppressing it.” 15 N.W.3d at 126. That cost-benefit framework tracks Supreme Court doctrine precisely. The Supreme Court has repeatedly declined to extend the exclusionary rule beyond its core deterrence purpose. Hudson v. Michigan, 547 U.S. 586 (2006), declined to apply the rule to knock-and-announce violations. Utah v. Strieff, 579 U.S. 232 (2016), declined to apply the rule where an unlawful stop led to discovery of an outstanding arrest warrant. The exclusionary rule is not a general-purpose remedy for constitutional violations. It is a deterrence mechanism applied where deterrence is likely to produce results. When a unanimous court applies that framework to zoning officials who ordered one drone flight, the framework fits. The Court of Appeals below explained the limiting principle with precision: prohibiting the government from using illegally obtained evidence is “intended to deter police misconduct…not that of lower-level bureaucrats who have little or no training in the Fourth Amendment.” Zoning inspectors are not sworn law enforcement officers. They do not operate within the training, supervision, and accountability structures that justify strong deterrence. The argument that exclusion deters a code enforcement official who ordered one drone flight is structurally weak. The Michigan Supreme Court’s opinion, read in isolation, is internally consistent with existing federal exclusionary rule doctrine. Opponents who dismiss it as lawless misread the case. ## Where This Argument Is Weakest The case for attorney action rests on Maxon, and Maxon is one state court decision applying Michigan constitutional doctrine. The holding does not bind courts in the other 49 states. It is also explicitly narrow: the Michigan Supreme Court limited its holding to civil proceedings seeking only prospective injunctive relief. Whether the exclusionary rule would apply if a municipality also sought a monetary fine, rather than only an injunction, remains unresolved even in Michigan. The Harvard Law Review’s 2025 comment on the decision noted that the court’s refusal to address the underlying Fourth Amendment question “create[d] a perverse incentive structure” but acknowledged that the exclusionary rule analysis was doctrinal consistent with federal precedent. Stuart Massa’s Northwestern University Law Review comment (119 Nw. U. L. Rev. 1103 (2025)) argued the Michigan Supreme Court erred in both its exclusionary rule analysis and its refusal to decide the search question, but those arguments do not change the current state of the law. The structural incentive I describe operates as a practical matter even without adoption by other courts. Government agencies in every jurisdiction now know that at least one state supreme court has held the exclusionary rule inapplicable to drone evidence in civil enforcement proceedings. That knowledge shapes enforcement behavior before any case is filed. ## The Levels of Consequence At the first level, a retired telecom worker in rural Michigan fights to keep his hobby vehicles out of sight of the road. He loses. At the second level, consider what civil enforcement actions your clients face. Zoning enforcement. Environmental compliance. Health code inspections. Occupational licensing reviews. Agricultural regulations. Business premises inspections under regulatory authority. Every one of these proceedings shares the structural feature that made Maxon possible: they are civil, not criminal, and the exclusionary rule has always applied weakly in civil proceedings. Your property clients, your regulatory clients, and your environmental clients all operate on property that government agencies can now surveil from the air with reduced legal exposure. At the third level, consider the legislative gap. Eighteen states have enacted statutes requiring law enforcement agencies to obtain warrants before using drones for surveillance: Alaska, Florida, Idaho, Illinois, Indiana, Iowa, Maine, Montana, Nevada, North Carolina, North Dakota, Oregon, Tennessee, Texas, Utah, Vermont, Virginia, and Wisconsin. Not one of those statutes covers civil enforcement agencies. Zoning officials and code enforcement inspectors fall outside every state drone warrant law currently in force, because the statutes were written in the language of law enforcement, not government surveillance broadly. A code enforcement inspector is not a law enforcement officer. The warrant requirement does not reach where the statute does not run. At the fourth level, consider the economic structure of the decision. A Part 107 certified commercial drone operator charges between $150 and $500 per hour for commercial surveillance flights. The cost of warrantless drone surveillance for zoning enforcement is now lower than the cost of filing for a warrant. The warrant application requires attorney time, judicial review, and a factual showing of probable cause. The drone flight requires a phone call and a credit card. Maxon did not create this cost differential. It guaranteed that the evidence produced by the cheaper option remains usable in court. Local governments operating under budget pressure now have a structural incentive to choose surveillance over procedure. The technology made this incentive possible. The court made it permanent. ## Practice-Specific Implications Property and real estate attorneys should treat aerial surveillance as a standard intake question for every regulatory matter. If your client faces zoning, nuisance, or code enforcement action, ask whether government drones have flown over the property and when. If the answer is yes, determine whether your jurisdiction’s drone warrant statutes apply to the relevant enforcement agency and whether your state’s courts have addressed the exclusionary rule in civil enforcement proceedings. Michigan’s answer does not bind your state. It tells you what the question looks like when a court decides it. Environmental and administrative law practitioners should apply the same analysis to regulatory compliance inspections and agency enforcement proceedings. The Maxon reasoning extends, in principle, to any civil enforcement proceeding where the government seeks prospective injunctive relief rather than criminal conviction. Environmental agencies, occupational licensing boards, and agricultural regulators all operate within that description. Criminal defense attorneys carry a distinct obligation. Maxon held the exclusionary rule inapplicable to civil enforcement proceedings. Criminal prosecutions remain subject to the exclusionary rule in full. If drone evidence collected without a warrant in a civil enforcement context later informs a criminal investigation or prosecution, suppression becomes a viable argument. The chain of custody between civil surveillance and criminal use matters. Establish it now, before the criminal referral happens. ## Three Steps for This Week First, add a standard aerial surveillance question to your intake forms for property and regulatory clients. Second, if your client is a government entity conducting civil enforcement, audit your jurisdiction’s drone surveillance protocol now. Eighteen states impose warrant requirements on law enforcement drone use, and some of those requirements may extend to agencies your client operates. One case resolved the exclusionary rule question in your favor in Michigan. Every other state is still open, and a challenge that fails in court can still cost your client years of litigation. Third, if your client faces civil enforcement based on drone evidence and your state has not yet ruled on the exclusionary rule question in this context, challenge admissibility on Fourth Amendment grounds. You may not prevail. The challenge establishes the record for the court that will eventually decide. That court’s decision will shape the law in your jurisdiction the way Maxon now shapes it in Michigan. ## Appendix: Verbatim Holdings The following language comes directly from the primary sources. No characterization substitutes for the text. Michigan Supreme Court, Long Lake Township v. Maxon, 15 N.W.3d 118, 126 (Mich. 2024): Unlike civil asset-forfeiture cases, proceedings to enforce nuisance and zoning ordinances are not quasi-criminal in nature, and the exclusionary rule may not be applied in those enforcement actions when only prospective relief is sought. Michigan Supreme Court, declining to rule on the underlying Fourth Amendment question, 15 N.W.3d at 119: We decline to address whether the use of an aerial drone…is an unreasonable search. Michigan Court of Appeals majority, on remand, Long Lake Township v. Maxon, No. 349230, 2022 WL 4281509 (Mich. Ct. App. Sept. 15, 2022): [Prohibiting the government from using illegally obtained evidence] is intended to deter police misconduct . . . not that of lower-level bureaucrats who have little or no training in the Fourth Amendment. Institute for Justice attorney Robert Frommer, representing the Maxons: The Fourth Amendment is not about the police; it’s about the government. ## The Sky Over Your Client’s Property Todd Maxon walked outside, looked up, and saw something hovering above his property. He knew it was from the government. He knew it had no warrant. He knew the same drone had been there twice before. He also knew that fighting it would take years. It took six. The Michigan Supreme Court handed down its ruling on May 3, 2024, and remanded the case to the trial court for further proceedings. The drone evidence remains admissible. The underlying question of whether the surveillance itself was constitutional has still never been decided by any court that reviewed this case. Your clients’ properties are not Todd Maxon’s property. The agency pursuing your client is not Long Lake Township. The case law in your jurisdiction may point a different direction. But the gap that Maxon identified does not belong to one eccentric township in northern Michigan. It belongs to every government agency that has just been told the sky is cheaper than a warrant. This blog provides general information for educational purposes only and does not constitute legal advice. Consult qualified counsel for advice on specific situations. ## About the Author JD Morris is Co-Founder and COO of LexAxiom. With over 20 years of enterprise technology experience and credentials including an MLS from Texas A&M, MEng from George Washington University, and dual MBAs from Columbia Business School and Berkeley Haas, JD focuses on the intersection of legal technology, cybersecurity, and professional responsibility. Connect: LinkedIn | X | Bluesky ## References ### Primary Legal Authority * Long Lake Township v. Maxon, 15 N.W.3d 118 (Mich. 2024) (Opinion by Justice Zahra, unanimous, decided May 3, 2024). https://law.justia.com/cases/michigan/supreme-court/2024/164948-0.html * Long Lake Township v. Maxon, 336 Mich. App. 521 (2021) (Long Lake I, holding drone surveillance violated Fourth Amendment). * Long Lake Township v. Maxon, No. 349230, 2022 WL 4281509 (Mich. Ct. App. Sept. 15, 2022) (exclusionary rule inapplicable on remand). * California v. Ciraolo, 476 U.S. 207 (1986). * Florida v. Riley, 488 U.S. 445 (1989) (plurality opinion). * Kyllo v. United States, 533 U.S. 27 (2001). * Weeks v. United States, 232 U.S. 383 (1914). * Hudson v. Michigan, 547 U.S. 586 (2006). * Utah v. Strieff, 579 U.S. 232 (2016). * U.S. Const. amend. IV. ### Academic Commentary * Stuart Massa, “Peeping Town: Drone Surveillance and the Exclusionary Rule in Long Lake Township v. Maxon,” 119 Nw. U. L. Rev. 1103 (2025). https://scholarlycommons.law.northwestern.edu/nulr/vol119/iss4/6/ * “Long Lake Township v. Maxon,” 138 Harv. L. Rev. (2025). https://harvardlawreview.org/print/vol-138/long-lake-township-v-maxon/ * “Aerial Trespass and the Fourth Amendment,” Michigan Law Review (2025). https://michiganlawreview.org/journal/aerial-trespass-and-the-fourth-amendment/ ### Regulatory and Industry Data * FAA UAS Registration Data: 822,039 registered drones (July 2025), including 433,407 commercial registrations. Federal Aviation Administration, https://www.faa.gov/uas/resources/by_the_numbers * Airsight, “Drone Laws | Drone Rules and Regulations” (cataloguing 18 states with law enforcement drone warrant requirements). https://www.airsight.com/learn/airspace-security/drone-laws-rules-and-regulations ### Advocacy and Press * Institute for Justice, “Michigan Supreme Court Creates Giant Loophole for Warrantless Surveillance” (May 6, 2024). https://ij.org/press-release/michigan-supreme-court-creates-giant-loophole-for-warrantless-surveillance/ * Institute for Justice, Michigan Drone Surveillance Case page. https://ij.org/case/michigan-drone-surveillance/ * Christian Science Monitor, “Drone surveillance case in Michigan Supreme Court tests privacy rights” (Feb. 12, 2024). https://www.csmonitor.com/USA/Justice/2024/0212/ * Reason, “Michigan Supreme Court Allows Evidence Collected by Drone, Without a Warrant” (May 8, 2024). https://reason.com/2024/05/08/michigan-supreme-court-allows-evidence-collected-by-drone-without-a-warrant/ * Mika Meyers, “Michigan Supreme Court Rules on Application of Exclusionary Rule to Zoning Ordinance Enforcement Cases” (May 10, 2024). https://www.mikameyers.com/michigan-supreme-court-rules-on-the-application-of-exclusionary-rule-to-zoning-ordinance-enforcement-cases/

Originally published on LinkedIn Newsletter: The Technology Blind Spot