Path: ...!feeds.phibee-telecom.net!3.eu.feeder.erje.net!feeder.erje.net!eternal-september.org!feeder3.eternal-september.org!news.eternal-september.org!.POSTED!not-for-mail From: "Adam H. Kerman" Newsgroups: rec.arts.tv Subject: Drone sent over property as part of municipal code enforcement; no exclusionary rule violation Date: Mon, 6 May 2024 15:59:43 -0000 (UTC) Organization: A noiseless patient Spider Lines: 85 Message-ID: Injection-Date: Mon, 06 May 2024 17:59:44 +0200 (CEST) Injection-Info: dont-email.me; posting-host="545622967c631d88f79fa21cf97c4e8f"; logging-data="2796444"; mail-complaints-to="abuse@eternal-september.org"; posting-account="U2FsdGVkX19S6ijv/YoHm50ia+DlzAW4rYBvb16ETmU=" Cancel-Lock: sha1:btureubh91fyi+P3apQ4Ba1BVsU= X-Newsreader: trn 4.0-test77 (Sep 1, 2010) Bytes: 5608 I've never read extensively about the history of the exclusionary rule, but it's a much stronger right in the US than in the UK. Usually we think of "fruit of the poisonous tree", that evidence is excluded at CRIMINAL trial if obtained by the police while violating the search and seizure clause of the Fourth Amendment, self-incrimination clause of the Fifth Amendment, or the right to counsel clause of the Sixth Amendment. What if it's administrative code enforcement by government, a civil law matter? This isn't clear to me because certain aspects of the history of the rule are that the rule developed from a criminal case shortly before the founding of the nation, but then Boyd v. United States (1886) was about warrantless seizure of business records and therefore self incrimination in a case about unpaid import duties. This case incorporated common law in Entick v Carrington (1765), which involved trespass to land and search and seizure of papers looking for evidence of seditious writings under an unlawful warrant issued by a government minister. Again, this was civil. Obviously the rule doesn't apply in a civil case properly applying rules of discovery. Around here, I am aware of the municipal code of Evanston Illinois that requires annual inspection of rental apartment buildings. The municipal inspector can choose to inspect the interior of an occupied apartment in a particular building subject to inspection to verify that the building isn't being maintained as a slum, compelling the landlord to open the apartment's locked doors without notice to the tenant. I've never heard of anybody challenging this in court, but I think it's an outrageous violation of rights against search and self incrimination. So it appears that there's a centuries-long history of developing this rule and it applies in some civil and all criminal cases. Lehto mentions examples of civil application of the rule, in both federal and Michigan rulings, in civil asset forfeiture cases. This is from another Steve Lehto video. Lehto said he attended oral arguments on appeal to the Michigan Supreme Court. It was an Institute for Justice case. In rural Michigan, neighbors complained of junk storage on a large lot in 2016 and that it was used as a "salvage yard" in violation of a 2008 lawsuit settlement that was largely favorable to the property owner. The township gathered evidence of the code violation with drone overflights on three separate occassions. The property owner lost at appeal; no warrant was required for the drone overflight. The unanimous opinion, however, said it declined to address whether the drone was used in violation of the right against unreasonable search under both the United States and Michigan constitutions (Fourth Amendment and Article I Section 11 respectively). The municipality couldn't have determined that there was a code violation if it were prevented from gathering this evidence because nothing could be seen without entering onto the property. This begs the question of what exactly neighbors had complained about. One could see junk being brought in and out but not that it was being stored on site. The court concluded that the cost of applying the exclusionary rule to code enforcement would outweigh the benefit. Exclusion of the evidence gathered would not deter future violations of rights. Application of the rule would serve "no valuable function". Um, unreasonable search isn't a police power. The right against unreasonable search is a liberty enjoyed by the people. One thing that's not clear to me is if, in settling the earlier lawsuit, the property owner had agreed to ongoing code enforcement inspections. Later in the video, Lehto said he was suspicious that the settlement agreement did not have such a provision in it. The code enforcement was against both land use restrictions and the nuisance ordinance, but Lehto points out that the nuisance ordinance does not apply as the junk couldn't be seen without trespass. In oral argument, Lehto said that one of the judges asked the Institute for Justice attorney if they don't extend the exclusionary rule that municipalities will buy drones and commence overflights. The IJ attorney said of course they will given how cheap drones have become. Lehto made the prediction that in the course of using evidence from drone overflights for code enforcement that evidence obtained of criminal violations will be turned over to police. As long as police didn't request that this evidence be obtained, the municipal inspector isn't acting as a police agent. https://www.youtube.com/watch?v=KniqGq6gTs0