What Long Lake Township v. Maxon Could Mean for the Future of the “Reasonable Expectation of Privacy” from Drone Operations Conversation in Mississippi
Nestor K. Delgado Jr., University of Mississippi School of Law, Class of 2021
Over the course of the past twelve months, the drone industry has made tremendous strides forward nationwide. The COVID-19 pandemic provided a great opportunity for drone operators to embrace the emerging technology in the healthcare industry by delivering vaccines to impoverished areas, blood samples to rural areas, and medication to the elderly. In addition, the Federal Aviation Administration released the final rules on remote identification, which serves as a mechanism for “a drone in flight to provide identification and location information that can be received by other parties.”
Despite the advances made in the past year, as drones are gearing up to be integrated into the national airspace as modes of package delivery, the rapid integration of drone technology into national airspace has sparked fears of a potential breach of a property owner’s reasonable expectation of privacy against warrantless aerial surveillance.
Concerns from American communities will likely give rise to conversations among local governmental bodies. Community members may attempt to lobby aldermen for ordinances that ban drones during certain hours or for certain uses; although, ordinances regulating drone operation are unlikely to remain enforceable. Given that local ordinances addressing drone operations are unlikely to solve the issue and the state legislature has yet to act on the matter, this leaves the judicial system of Mississippi to answer the question of whether drone operations above personal property invade a landowner’s reasonable expectation of privacy in Mississippi.
Courts in Mississippi have yet to engage in a reasonable expectation of privacy inquiry in the context of drone operation near a real property owner’s land; however, the Michigan Court of Appeals recently addressed the topic head-on in Long Lake Township v. Maxon, holding that “persons have a reasonable expectation of privacy in their property against drone surveillance.” Looking to United States v. Causby, California v. Ciraolo, Florida v. Riley, and Kyllo v. United States for guidance, the Court ultimately came to this conclusion based on the finding that “drone surveillance of this nature intrudes into persons’ reasonable expectations of privacy.” As one commentator has already pointed out, ultimately the “heart of [the] Court of Appeals’ ruling is that [drones] are different from other aircraft, and [this] difference directly impacts a landowner’s reasonable expectation of privacy.”
The Fifth Circuit held in United States v. Turner that a reasonable expectation of privacy inquiry first requires “that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable.” The key in applying this inquiry to drone operations is determining the relationship between the operation itself in relation to the “curtilage” of the landowner’s property. In Dow Chemical Co. v. United States, the Supreme Court noted that “an area immediately adjacent to a private home [is] where privacy expectations are most heightened.” It is therefore reasonable to assume that a court would find that a drone operated by a government entity, absent a warrant or outside the warrant exception, would violate the property owner’s Fourth Amendment reasonable expectation of privacy. The reason being that, based upon the holding in Dow Chemical Co., the private home is where privacy expectations are most heightened and “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.”
As the Maxon majority highlighted, “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.” While Maxon is not binding authority in Mississippi, the holding from the Michigan Court of Appeals should serve as a “heads-up” for legal practitioners across the state that legal issues arising from drone operations are inevitable and cases of this nature will enter Mississippi courtrooms sooner than later.
 Editorial Team, Commentary, Drone Utilization in a Pandemic and Beyond: Finding the Balance Between Public Safety and Privacy, 1 J. of Drone Law and Pol’y 50, 53-55 (2020).
 Remote Identification of Unmanned Aircraft, 86 Fed. Reg. 4390 (Jan. 15, 2021).
 UAS Remote Identification Overview, Fed. Aviation Admin. (Mar. 9, 2021) https://www.faa.gov/uas/getting_started/remote_id/.
 See Why Amazon, UPS and even Domino’s is investing in drone delivery services, Bus. Insider (Feb. 12, 2020) https://www.businessinsider.com/drone-delivery-services; Annie Palmer, Amazon wins FAA approval for Prime Air drone delivery fleet, Bus.Insider (Aug. 31, 2020) https://www.cnbc.com/2020/08/31/amazon-prime-now-drone-delivery-fleet-gets-faa-approval.html.
 Editorial Team, supra note 1, at 58-59.
 See Singer v. City of Newton, 284 F. Supp. 3d 125 (D. Mass. 2017) (holding that an ordinance banning drone operations below a certain altitude over personal property was subject to conflict preemption).
 Long Lake Township v. Maxon, No. 349230, 2021 WL 1047366, at *7 (Mich. Ct. App. Mar. 18, 2021).
 328 U.S. 256 (1946).
 476 U.S. 207 (1986).
 488 U.S. 445 (1989).
 533 U.S. 27 (2001).
 Maxon, 2021 WL 1047366, at *6.
 Mark McKinnon, Drone Operators Beware…Michigan Appellate Court Opines on Privacy, JD Supra (Mar. 29, 2021) https://www.jdsupra.com/legalnews/drone-operators-beware-michigan-5807177/.
 839 F.3d 429, 434 (5th Cir. 2016) (internal citations omitted) (quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)).
 Florida v. Jardines, 569 U.S. 1, 6 (2013).
 476 U.S. 227, 237 n.4 (1986).
 Maxon, 2021 WL 1047366, at *6 (citations omitted).
Nestor K. Delgado Jr. is originally from Pascagoula, Mississippi and currently resides in Jacksonville, Illinois. A graduate of the University of Mississippi School of Law Class of 2021, Nestor also graduated with a Bachelors in Public Policy Leadership from the University of Mississippi in 2018. In the summer of 2019, he served as a legal fellow for the U.S. Senate Committee on Commerce, Science and Transportation. During his third year, Nestor served as the Editor-in-Chief of the inaugural issue of the Journal of Drone Law and Policy, housed in the Center for Air and Space Law at the University of Mississippi School of Law.