Re: Drone sent over property as part of municipal code enforcement; no exclusionary rule violation

On Mon, 06 May 2024 12:57:30 -0700, BTR1701 <atropos@mac.com> wrote:

In article <v1aupf$2lass$1@dont-email.me>,
"Adam H. Kerman" <ahk@chinet.com> wrote:
>

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.

>
Sounds like if I lived in Evanston, I'd have single-side deadbolt locks
installed on the doors so that I could prevent that, at least when I'm
home. Fuck the code inspector. He can arrange an appointment to inspect
at my convenience. I'm not a parolee subject to surprise drop-ins from
the government.

Is that any different from landlords having maintenance crews stop by
to do inspections. My apartment complex does yearly inspections for
the smoke detectors. They usually send out notices the week before
they will be coming by some time during the next week to do the
inspection. They also did an inspection a few years back for some
county code inspection that resulted in them sending out a number of
notices about various code violations like people have those small bbq
grills on their decks with threats of fines. (Fines that I've never
seen them follow through on.)

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.

>
Sounds like if I'm a Michigan junk collector, I need to go invest in
some tarps now.

Camouflage netting would be more effective. Protects from the nosey
sky drones and lets the rain through.