In some states (Alaska, Florida, Idaho, Illinois, Indiana, Iowa, Maine, Montana, North Carolina, Oregon, Tennessee, Texas, Utah, Vermont, Virginia and Wisconsin) a warrant is required for drone surveillance, for example Florida's law. Long Lake Township v. Maxon moves Michigan in that direction. The crucial reasoning of this decision rests on the "reasonable expectation of privacy", and follows the reasoning in Kyllo v United States, 533 US 27 that there is a search when
“the individual manifested a subjective expectation of privacy in the
object of the challenged search,” and “society [is] willing to
recognize that expectation as reasonable.”
(citing California v. Ciraollo, 476 US 207). The opinion observes that in some cases there is a "reasonable expectation of privacy", and in some cases there is not – relevant parameters include whether the location is a home, whether or not the observation was from an airplane or helicopter, the altitude of the observation etc, and in ordinary aircraft suveillance cases, "defendants could not have reasonably expected the activities and items on their property to be protected from public or official observation made by a human being from the publicly navigable airspace". In this case, though, photographs "taken from the ground seem to establish a reasonable
expectation of privacy against at least casual observation from a non-aerial vantage point". The final conclusion is 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. We conclude that drone surveillance of this nature intrudes
into persons’ reasonable expectations of privacy, so such surveillance
implicates the Fourth Amendment and is illegal without a warrant or a
traditional exception to the warrant requirement
(it should be noted that the drone operated below the FAA regulated minimum altitude, which crucially bears on whether there is a reasonable expectation of privacy – "Persons may, absent extraordinary circumstances, reasonably expect the law to be
followed, even if they know the law is readily capable of being violated"). It is not that violating an FAA safety regulation violates the 4th Amendment, it is that such a violation bears on what constitutes a reasonable expectation of privacy.
There is a dissenting opinion in Long Lake, which does a reasonable job at picking at the majority opinion. As far as Michigan is concerned, the majority opinion is what counts, but we cannot conclude that the next time this issue comes up, another state will follow suit. On the third hand, many states have encoded this "reasonable expectation of privacy" when it comes to drone surveillance.
