Steve Palmer [00:00:00]:

Alright. Here we are. Lawyer Talk. They Don't Teach You That in Law School, but we talk about it right here at the table. What does that mean? That means we are talking about legal issues. We've got our resident law students here. We've got Troy. We've got Bella.

Steve Palmer [00:00:10]:

And, we do we talk about all thing these These guys bring us questions or bring me questions or bring me issues to talk about, and it's like I have to dust off the cobwebs of my head to to remember some of this stuff because we don't always deal with this day in and day out. But a lot of times, we do. And and a lot of times, I have a practical sort of connection from where you guys are to where I've been in the last thirty years, twenty nine and a half years, doing this stuff. So, we're gonna jump right to it. We're gonna talk about drones. I mean, this is awesome, because there's this there's a lot of stuff going on with drones right now. I remember when drones first emerged, and there was this big issue about whether you had to go get FFA and FFA? FAA.

Troy Hendrickson [00:00:49]:

FAA. FAA. Yeah.

Steve Palmer [00:00:52]:

Permission, and there was licensing issues and all sorts of stuff. Now it seems and and they were really expensive, so not everybody had them. Now I can just go into any Radio Shack. You guys don't even know Radio Shack. You can go to any electronics store and buy one and, and fly it around and go spy on people. But the real question is what happens when the police spy on people? Because we kicked what what we we kicked around the fourth amendment quite a bit last week Yes. In the

Troy Hendrickson [00:01:14]:

In the Coburg case. In the

Steve Palmer [00:01:15]:

Coburg case, talking about the DNA and everything. Mhmm. And this is sort of an extension of that of the fourth amendment issues. And, really, the issue is under the fourth amendment, can the police spy on us using drones? Yes.

Bella Mata [00:01:26]:

Mhmm.

Steve Palmer [00:01:26]:

Yep. So let's let's have it. What what so first of all, what was the and I I know some of these answers. But what was the first? Where did it start in law school? Because you guys are taking criminal procedure. And by the way, criminal procedure and law school and criminal procedure in the real world or or, like, the terminology doesn't always mesh because we have in the real world something called the Ohio rules of criminal procedure or the federal rules of criminal procedure. And that really is a set of rules that tells you, like, time deadlines, when you have to file motions Mhmm. What the rules of some of the discovery are. But criminal procedure in your world is the constitutional stuff.

Steve Palmer [00:02:02]:

And as as my old buddy used to say, that's the stuff that the bastards can't do to you. That's what the police can't do to you. So they have to follow the the you know, it's Fourth Amendment stuff and Sixth Amendment stuff and, general, constitutional stuff. So anyway, where'd they start on this in law school?

Troy Hendrickson [00:02:18]:

CrimPro, love it way more than CivPro just because it is not it's not the rules. Like, you had it 100% right. They started with this California v. Coelho, I think it was. Cirillo. Cirillo. So they Cirillo. Cirillo.

Troy Hendrickson [00:02:30]:

So we talked

Steve Palmer [00:02:31]:

c I r a o l o. None of us apparently are No. Have good Spanish.

Troy Hendrickson [00:02:36]:

So the it started there. They talk about, can they spy on you with a helicopter or a plane over top of you? And I think this was popping a marijuana farm, which now

Steve Palmer [00:02:46]:

So this is back in 1986. And the feds were flying choppers or or the state cops were flying choppers over weed farms and taking pictures a thousand feet high. Yep. And, you know, it's funny how we get these issues that emerged years and years and years ago, sometimes hundreds of years ago, and we're applying them to today's technological standards. So I remember having these discussions in law school, sort of everybody's throwing comments around with telephoto lenses. And what if the what if you've got, like, the Hubble taking pictures, you know, because you can it's like it's not the same as it used to be. Yeah. So

Bella Mata [00:03:23]:

I was thinking about that with, like, GPS trackers and stuff. Like, I'm sure they've had this conversation time after time.

Steve Palmer [00:03:30]:

Yeah. That's a whole other yeah. And, you know, that's a whole other discussion. But, yeah, same kind of thing. I mean, the founders never would have contemplated helicopters, let alone drones. Yeah. And did they have eyeglasses? I guess. So and they had spy glasses, you know, but they didn't probably have binoculars yet.

Steve Palmer [00:03:47]:

So, you know, spying on somebody from afar in their home, I don't know. What would they have said about that? They would probably say, that's a bunch of BS, man. We don't want the cops doing that. We don't want the British doing that to us. Yeah.

Troy Hendrickson [00:03:58]:

Yeah. They would've been like, how are they flying over us for starters? I know in the first question.

Steve Palmer [00:04:03]:

So they wrote something called the fourth amendment that says no search and seizures without a warrant. And now, we're applying it to a helicopter a thousand feet high. Pretty cool stuff.

Troy Hendrickson [00:04:10]:

Mhmm. And so they they basically decided in this one that airspace is free game. Like, and anybody can fly over and see your space. And then after that case Well,

Steve Palmer [00:04:21]:

hold on. Let's break this down a little bit. So they being the the US Supreme Court gets this case in 1986. For those who care, it's four seventy six US two zero seven. And I remember this case and and or reading it, and I've I've dealt with it a few times. Basically, the US Supreme Court is talking about what we talked about last week, which is our reasonable expectation of privacy. In other words, in our house, do we have a reasonable expectation of privacy? And does, does the state cops flying a helicopter a thousand feet above my house violate that reasonable expectation of privacy? And the US Supreme Court, after some lengthy discussions, says no. Thousand feet up, you don't have any expectation of privacy there.

Steve Palmer [00:05:02]:

That's public airspace after all. So we can you can you can be observed from public airspace. Now, look, I would love to say all these decisions are altruistically based only on legal reasoning, but, you know, the the the this constitution has to sort of fit in modern times and, you know, how do you do that? You know, we want the police. What they're really saying behind the scenes is do we want the police be able to fly over your house with a chopper and take pictures of what you got going on to help solve crime? And I guess the court said yes.

Troy Hendrickson [00:05:32]:

Yeah. To to I don't know if I totally agree with it or anything. I mean but also, I guess, if I'm in a commercial airliner and I look down out the window and I look at your property, I guess there's no expectation of privacy. I don't know if I'd fly right now. There's a lot of kind of flight issues going on.

Steve Palmer [00:05:47]:

But Yeah. Right. Right now is not the time to be on the but, no, the the point is is that they said, no. It's too far. You you don't really have a reasonable expectation of privacy for protection from public airspace because after all, the airspace is public. Yeah. Alright. So now we get to the next case.

Steve Palmer [00:06:05]:

Next one is Riley. So Florida versus Riley, four eighty eight US four four five in 1989, so three years later. And you're gonna see this as as you guys study the constitutional development of constitutional law. The the court will sort of take on topics. And this happened, for instance, in mid early two thousands, I think, with the confrontation clause in Crawford v Washington, and we're dealing with an issue like that right now. Yeah. And they took a string of cases sort of analyzing it. They're doing it with the second amendment right now, and they're they're nailing down the precedential treatment of these issues.

Steve Palmer [00:06:41]:

And that's what they're doing here because technology had emerged. These cases were starting to, show up more and more, and they figured we need to do something to explain what's going on. So anyway, go ahead.

Troy Hendrickson [00:06:51]:

That's kinda cool. I wish I could just pick a topic, and we'll just focus on that for the next ten years or something. I'm kinda jealous of them.

Steve Palmer [00:06:56]:

It's a lifetime appointment, man. All you gotta do is try hard. Try hard. Maybe you too can be appointed to be a US Supreme Court Justice.

Troy Hendrickson [00:07:05]:

First capital law grad.

Steve Palmer [00:07:06]:

I I

Troy Hendrickson [00:07:07]:

like that.

Steve Palmer [00:07:07]:

That would be a first.

Troy Hendrickson [00:07:09]:

So so Riley then brings in the question, how low is public airspace? So this helicopter was 400 feet above the house, which I'm I feel like that's a decent question. Is that really public airspace? That's Yeah. That's like 40 feet.

Steve Palmer [00:07:22]:

So 400 feet. We're talking like a football field and and some change. Right?

Troy Hendrickson [00:07:27]:

Yeah. And that's all that's above them. And Riley, the Supreme Court decides, yep, that's still fair game. That's public airspace. And that was, like, kind of the line as of right now, federally, like, 400 feet is where we're at.

Steve Palmer [00:07:38]:

The court stresses that the chopper helicopter was within navigable airspace, and there was no evidence that such flights were uncommon or illegal in the area. Therefore, the police officer did not violate Riley Riley's privacy. By observing his greenhouse from a helicopter at 400 feet, no warrant was needed for that.

Troy Hendrickson [00:07:56]:

So the big problem with all these cases is these were marijuana farms and marijuana is legal now. So if we're gonna get new case law on drones, we need people to start growing something like poppy or something like that. You know, sir, new farms.

Steve Palmer [00:08:08]:

Well, you're gonna see this and these these sort of curtilage because really what we're talking about is a curtilage issue. So and and by curtilage, I mean this. We have a reasonable expectation of privacy in our homes. And the the court has said is this going back to, like, Katz, I'm guessing? Yeah. There's a case called Katz versus Ohio, I think. Might be. I think you Or Illinois. Anyway, Katz, k a t z.

Steve Palmer [00:08:32]:

The we it's you have a reasonable expectation of privacy not only in your house, what's in the behind your closed doors, but also your backyard and your side yard and your front yard and maybe your barn and your car that's parked in the driveway. And then the curtilage doctrine sorta gets wishy washy when you get to things like, who are the Wisconsin boys? They made the Netflix series out of it.

Troy Hendrickson [00:08:57]:

Wisconsin boys? I mean, Netflix series?

Steve Palmer [00:08:59]:

They killed that girl or, Making a Murderer. So Making a Murderer. These guys had a junkyard in their back. You know, they lived on a junkyard. So does the curtilage include their entire business in their junkyard? Well, maybe. Maybe not. Who knows? But a lot of it has to do with what you're what the homeowner is doing to protect it. So if I erect a 20 foot fence, I'm sort of saying, I have an expectation of privacy behind what's going on in this fence, or what's going on behind this fence.

Steve Palmer [00:09:26]:

And that might give me more of a reasonable expectation of privacy. And, Troy, if you just have, you draw a, you get out the landscape Yeah. Spray paint, and you draw a line in your yard and say, neighbor, you cross this line, You you know, you're getting it. So that's a little bit different. So it's it's not an obvious bright line test. But, anyway, curtilage we're talking about curtilage in your yard. Now we're talking about it up above. So that that's and now 400 feet, apparently.

Steve Palmer [00:09:56]:

It's not they're cool with that. Yeah. I'm not so cool with that.

Troy Hendrickson [00:09:59]:

No. I'm not I'm not either. But also, if somebody's flying a helicopter 400 feet above us right now, like, we would hear it and, like, we would know they're there.

Steve Palmer [00:10:07]:

It's a lot. Right.

Troy Hendrickson [00:10:07]:

Yeah.

Bella Mata [00:10:08]:

That's why I feel like you can't really even compare a drone to a helicopter. No. Like, I don't really love how they're using these prior cases. I feel like it's just not the same at all. A helicopter requires someone to be in it to be driving it. You would obviously know it's there. It's very loud. Drones could be very sneaky and quiet, and the cameras on these things now are, like, insane.

Bella Mata [00:10:27]:

So I don't know.

Troy Hendrickson [00:10:29]:

Yeah. It's I mean, some there could be a drone on your roof right now of this building, and, like, we would not

Steve Palmer [00:10:34]:

Right.

Troy Hendrickson [00:10:35]:

If there was a helicopter on the roof, like, we would we would know.

Bella Mata [00:10:38]:

Yeah.

Steve Palmer [00:10:38]:

And there was, the Supreme Court at the time was talking about the FAA regulatory guidelines, and 400 feet above a house was within their the regulation. So they didn't they didn't come up with 400 feet out of nowhere. There was some FAA regulation. And I think there was some dissents or there was some debate about whether that's a good standard. Should the Fourth Amendment hinge on an administrative regulation? And I bring that up because by today's standard, we have a president who's basically dismantling a lot of the administrative state, and that shows you an administrative regulation is a fungible thing. It's it's hard to create a bright line, Fourth Amendment constitutional rule based on that. But 400 feet until now has been good enough. And, the plot thickens, though.

Steve Palmer [00:11:23]:

Right?

Bella Mata [00:11:23]:

I also kinda feel like they wouldn't use a helicopter in a lot of situations because they're just I don't know. It's like Well, yeah. I think a lot more work, but drones are so easy. Yeah.

Steve Palmer [00:11:34]:

You can

Troy Hendrickson [00:11:35]:

you can just pull it out of your trunk and

Bella Mata [00:11:36]:

it's Yeah. Like the Michigan case, that guy had trash on his yard or something like that. Yeah. And that's why they wanted to crack down on him, so they got a drone. But they would have never got a helicopter in that situation.

Steve Palmer [00:11:48]:

Well, it is easier to conduct a search with a drone. It's cheaper. Right. It's it doesn't take any it doesn't take much planning. You just got some cop who's probably, like you know, there was a time that having a drug sniffing dog was a rare bird dog. But, anyway, but and and now they're pretty common. Almost every police force has one. Hey.

Steve Palmer [00:12:13]:

Bring Bob over here with the dog, please, and he's there in fifteen minutes. Where when the dog's drug sniffing sort of became popular, it took an hour. And sort of drones are the same way. I have a we have a private investigator we use all the time, and he was out at a client's place with his drone the other day. He's like, oh, just take my drone out there, and we'll get some footage of it. Alright. So the cops have one in their trunk just like they probably have a camera. I mean, you know what? Digital cameras were like this too back in the nineties when everybody was getting digital cameras before they were on our phones.

Steve Palmer [00:12:42]:

Cops had digital cameras, and I remember having cross examinations for the first time with cops saying, you didn't take a damn picture of this whole thing. He goes, well, I said, hold on a second. You have a digital camera in your trunk. You can just take as many pictures as you want. You don't need to take them to the photo mat to get them developed. You can just take pictures. It was a big deal. And but now we think of it like no big deal.

Steve Palmer [00:13:04]:

They got a phone. They can just take as many pictures as they want, and they should. Mhmm.

Troy Hendrickson [00:13:08]:

Drones are the same way now. You you just get your drone out and conduct a search. Yeah. And, unfortunately, in Ohio, we have there's there's been some case law on it. When I was doing the green book, I first got this issue a couple weeks ago where I think it was his name was Bray Bradley. Let me pull it up here. So Bradley here. Bradley decides he wants to steal somebody's car.

Troy Hendrickson [00:13:34]:

Not the greatest idea, but he does it. And he takes it to his property, decent sized property, and the cops wanna know if it's on there. So what they do is they go to the the cops go to the neighbor's house, and they say, hey, neighbor. Do you mind if we fly a drone above your house real quick? And we just wanna see what the neighbor's got. Look over. They see a red car. So then they immediately go over there and search the house. He appeals.

Troy Hendrickson [00:14:00]:

And on the appeals court, what Ohio has said now is drones are kind of like Riley. As long as they're 400 feet, they're fine. We're gonna treat them as helicopters. And that is what has recently come out of Ohio. And I don't think the court of appeals is hold on, though.

Bella Mata [00:14:18]:

But don't drones have to be below 400 feet?

Troy Hendrickson [00:14:21]:

Well, I don't I don't think you can go as high as

Steve Palmer [00:14:23]:

I I don't No. There's some regulatory stuff on drones and how high you can fly them.

Troy Hendrickson [00:14:27]:

Because they

Steve Palmer [00:14:27]:

don't want they don't want drones in the airspace where they're gonna get whacked by other aircraft.

Bella Mata [00:14:31]:

I thought they had to be below. That's why I was like, I don't even know why they're comparing it to a helicopter.

Steve Palmer [00:14:36]:

Well, because it's overhead surveillance with cameras, and it just technologically, it's increased. And that's why I think it was O'Connor. We looked I looked it up. Sandra Day O'Connor back in the day said, look. I I don't think we should tie Fourth Amendment case law to a regulation because the regulations change. And and what you're bringing up is that, you know. There's a time where we wouldn't have thought anything could fairly fly below 400 feet anyway. You know, what we're gonna do? Float helium balloons with cameras on them? I mean, maybe.

Steve Palmer [00:15:03]:

Yeah. But the the interesting part about the Bradley case in Ohio, we should get back to this. The cops didn't actually fly the drone over the property.

Troy Hendrickson [00:15:11]:

No. No. No. They they went

Steve Palmer [00:15:12]:

straight up Mhmm. On a neighbor's property. So the neighbor gives consent and says, alright. Hey, neighbor. Or, the cops go, hey, neighbor. Can we fly a drone? Can we come in, fly a drone? The guy's probably like, yeah. Sure. I don't like this son of a bitch anyway.

Steve Palmer [00:15:24]:

And, brew some coffee while we're waiting and, give you some some donuts. So the the police fly the drone straight up and look over. Now there's some case law, I think, back in the day where cops would put, their cameras on sticks and sort of, like, peek over. You

Troy Hendrickson [00:15:41]:

know? Yeah.

Steve Palmer [00:15:42]:

And, that wasn't a search, or maybe it was a search, but there were big curtilage arguments about that. I think that's really where drones are going. Now the Bradley case, there's some interesting real world application to this because the Bradley goes into this whole thing about we're gonna treat it like Riley and the free airspace above, but they really weren't in the free airspace above. They were sort of operating in the what if world. And so Bradley doesn't really give us much precedent other than they're sort of signaling off. We got that issue. We would do it this way. But it doesn't mean that the highest Supreme Court will agree.

Steve Palmer [00:16:16]:

And I'm not sure where this all shakes out

Troy Hendrickson [00:16:18]:

No. Yet. No. Yeah. There's there's not a lot of case law on this. This is, like, gonna be an exciting issue. Like, we're gonna see in the I imagine the next ten years, like, oh, at least the Ohio Supreme Court, probably United Supreme Court. But they they did say it was more like a camera on a telephone pole.

Troy Hendrickson [00:16:33]:

They just wanted to amuse the argument. Yep. And I I thought it was interesting that they would even do that. Because usually the court of appeals is like, well, they don't have to talk about it. I feel like they just don't want to. They're like, no. I'm not

Steve Palmer [00:16:43]:

Well, let's let's let's put our legal hats on for a second. And if we had the issue, what would we do with it? And let's create a fact pattern. And the best way to do this is to create fact patterns that you you would think are the most egregious or worst form of surveillance searching that you can imagine. You're in your house, and you look out your kitchen window, and there's a drone staring right at you right through your window five feet away, watching you package your marijuana and, count your money. Hate when they do that. Right. And it turns out the cops are sitting over in your buddy's property, and he's pissed because you didn't give him free dope. And he says, yeah.

Steve Palmer [00:17:25]:

Go get that guy. Or maybe he's a he's a drug dealer himself, and he's like, that's my competition. Take his ass down. So now we've got that. So they don't the police do let's assume a couple of things. They don't have a search warrant. They have a drone. They're they have permission to be where they started the drone flight.

Steve Palmer [00:17:43]:

They fly the drone right over your fence, five feet high, right around your house to your back window or your kitchen window, and they're videotaping you or or they're they're it's not even videotaping anymore. They're they're filming you Mhmm. Recording you, count money, and package dope. Is it

Bella Mata [00:18:05]:

I feel like that's just a trespass issue because they police are

Steve Palmer [00:18:09]:

doing it. Every every time the police enter your property, it's a trespass unless they have permission. So they can do that with a warrant sometimes and without a warrant sometimes.

Bella Mata [00:18:15]:

Because they have permission to be on the neighbor's property, but they don't have permission to be on your back porch looking at you. So I don't know. I just feel like I know technology is constantly changing and it gets better with time, but I feel like we can't just keep bending the rules because of it. But then I also think, like, technology is changing and getting better. Why wouldn't the police use it? You know, like, imagine if we said the police can't GPS track us or they can't use cameras when that first came out. I just feel like Well, I mean it would be maybe a disadvantage.

Steve Palmer [00:18:47]:

I mean,

Troy Hendrickson [00:18:48]:

we talked about Riley how as long as in the regulations, that's good. I mean, if drones are allowed over 400 feet, but they're in your backyard, I mean, according to regulation, there may be the regulations.

Steve Palmer [00:18:57]:

Maybe there's gonna be some federal regulations about where you can fly, where normal people, not cops, could fly drones, and you could use that to peg the standard. But that can change too. So the question I mean, let's start with a question. Did you have a reasonable expectation of privacy in your kitchen, five say and let's add another fact. You got five acres, and you're in the middle of five acres, and they and the police flew this drone from your neighbor's property across your acreage to your back kitchen window, and that's how they got shot.

Troy Hendrickson [00:19:28]:

I would say you have a reasonable expectation of privacy because you've placed your house so far away from the edge of your property. Like, you you put it that far. It there's it all depends, of course.

Steve Palmer [00:19:37]:

Of course. It all depends. Right. How how many

Bella Mata [00:19:39]:

more feel like in your house, you would expect that you're in private and no one's watching you.

Troy Hendrickson [00:19:45]:

Yeah. I I think one of the, like, case laws is, though, like, somebody put stuff over their windows, like, film over their windows so you couldn't look in, which I know that's strange.

Steve Palmer [00:19:53]:

All the time.

Troy Hendrickson [00:19:53]:

Yeah. But, like, they they were like, this person took extra steps.

Steve Palmer [00:19:56]:

Almost almost everybody does that. We call them curtains. Oh, yeah. And blinds. I mean I mean that. I'm not joking.

Troy Hendrickson [00:20:02]:

Yes. Yes.

Steve Palmer [00:20:03]:

We all do that. And but That is true. I bring that up. You it's a good point, and it's worth discussing because we don't we don't put look. Sometimes people use curtains because of the r value. You get some insulating value. Your house stays warmer and cooler, warmer in the winter and cooler in the summer. But most of the time, we do it because we don't want the creeps looking at you.

Bella Mata [00:20:19]:

Mhmm.

Steve Palmer [00:20:19]:

So when you get out and you're taking your shower and you got you're getting dressed, you close your bedroom curtains because you don't want people watching. But our guy, our hero here, he didn't have blinds on his kitchen window. No. Dummy. But the the police were able to look in. So now the question is, where do you draw a line? Can we all agree that that's probably a search for purposes of the Fourth Amendment, and you and our hero probably had a reasonable expectation of privacy to be free from searches and seizures in in that scenario.

Troy Hendrickson [00:20:49]:

Absolutely. Yes.

Steve Palmer [00:20:51]:

I mean,

Troy Hendrickson [00:20:51]:

at that point, what what difference between having the drone sitting there at window high and then the cop just hopping the fence and looking. There's there's like

Bella Mata [00:20:57]:

There you go.

Steve Palmer [00:20:58]:

What I was saying. This is where I think the courts are gonna go. If if the drone and I'm making this up, folks. So this is me just spitballing here. But I think that police are gonna or the courts are gonna start treating drones like an extension of what a police can what the cops can see. And were they would they be permitted to go there on foot? And if the answer is no, then I think there's gonna be a problem. And so I think I think they're gonna maintain the 400 foot nonsense, whether I agree with that or not. I think they'll maintain that.

Steve Palmer [00:21:25]:

But anything below that, they're gonna start treating it like an courts, I believe, will start treating it like an extension of the cops.

Troy Hendrickson [00:21:31]:

So you you think that if the drone is just 50 feet above the house

Steve Palmer [00:21:35]:

Those are those are gonna be the harder questions. Right? Could could a cop be 50 feet above your house in a helicopter staring down even if it didn't violate FAA regulations? The Supreme Court said no.

Troy Hendrickson [00:21:46]:

Mhmm.

Steve Palmer [00:21:47]:

So I I think that's how it's gonna I think that's how it's gonna shake out.

Troy Hendrickson [00:21:51]:

Yeah. I I hope that's how it

Steve Palmer [00:21:53]:

I hope gonna get more difficult. Let's let's make it harder. They didn't the police didn't fly the drone to your back kitchen window. They flew it to your back 40 where you're grown where you have a field of poppies, and they're taking pictures there.

Troy Hendrickson [00:22:09]:

Maybe. Maybe. Yeah. Maybe. Maybe not.

Steve Palmer [00:22:12]:

Now what if they get a search warrant? So now now and this is what I would tell the police to do. If I'm a prosecutor and the police come to me and say, hey. I'm detective, O'Flanagan here. I want to, I wanna go fly my drone on Troy's house. If I'm a prosecutor, I'd say, wait a minute. I how how pretell do you plan on doing that? And if they if they pitch to me the scenario that we just made up, I would say, go get a search warrant. And if the cops said, well, we don't have probable cause to get a search warrant, I would say, then don't do the search. Mhmm.

Steve Palmer [00:22:45]:

Or if you do the search, you're likely to lose all the evidence that you find. Yeah. Under the exclusionary rule, the court's gonna throw it out. And I I think what's what's all of this here here's what here's what's I've found over the years. Almost always, the police could have done it. All they had to do was go get a search warrant. That's all you had to do.

Troy Hendrickson [00:23:07]:

You're asking to do a lot, though.

Steve Palmer [00:23:08]:

My my my my dad was a for a while, he was an assistant United States attorney, and he was consulted on something. He tells the story. He was consulting he was consulted by the police. The police asked him, what should we do? We're at this guy's house. Should we go in? Or should we search his car? Should we do whatever? And my dad he might be making it up. I don't know. But my dad says, well, I told him to go get a search warrant, and the police sort of pushed back and said, wait a minute. You know, we've got this in plain view.

Steve Palmer [00:23:36]:

We've got this. We got you know, we're we're allowed to do it. And, my dad says, nope. Go get a search warrant. Well, it turns out whatever reason they thought they had to be on the property or they were permitted to be on the property without a warrant didn't exist. They were wrong. And because they took the extra step to go get a search warrant that maybe took twenty minutes or whatever an hour, they they were able to salvage the case and preserve the evidence. And and this is a this is a a telling, example.

Steve Palmer [00:24:06]:

Most of the time, the plea it's not hard to get a search warrant. It's not hard to because what we're really talking we should back up. What we're really talking about is whether the police can go search someplace without a search warrant or whether they should get a search warrant. Fourth amendment says well, the fourth amendment doesn't talk about any exceptions, but the Supreme Court, as we talked about last time, has created a bunch of exceptions. One of them would be if the police see something in plain view, they can go seize it. Another would be if there's exit in circumstances. So if they're chasing Troy, you just robbed a bank into somebody's house, they can go follow him in there. The automobile exception we talked about where your car's out on your road.

Steve Palmer [00:24:41]:

All those things are still there. But if you're a cop, you don't have to do it that way. You don't have to do it the easy way. You can still go get a search warrant if you have time. And if you don't, you do so at your peril. You you you know, that's when sharp lawyers like us come in and say, guess what? You screwed up. This was a search. You should have had a warrant.

Steve Palmer [00:24:57]:

My client had a reasonable expectation of privacy, and you're gonna lose the evidence. So I guess all of this could be avoided by just the cops going to get a search warrant. But here, they took the shortcut and they didn't.

Troy Hendrickson [00:25:08]:

Yeah. And the actual the actual appeal for Bradley is the main issue was they saw the car. And instead of going to get a search warrant, they just immediately did the search.

Steve Palmer [00:25:22]:

That's another problem. Yeah. So that's what the court

Troy Hendrickson [00:25:24]:

of appeals actually focused on. They're like, why did you guys not just wait and get a warrant? They they end up, like, not excluding it, but they're like, you guys, this was as close as you guys could get to getting it as excluded.

Steve Palmer [00:25:35]:

I I have I have not read the Bradley case careful enough to know why that wouldn't have been thrown out. But look. I mean so that's a good question. So the police, the the Bradley court holds that the the drone was where it should it was okay. The drone search was fine for whatever reason. Mhmm. They see the red car, and they think, well, that's the car that was stolen. Let's just go get it.

Steve Palmer [00:25:54]:

Mhmm. What are the exigent circumstances there? Like, why and by exigent circumstances, let's say that, the car is on fire or the defendant is in the process of destroying it or chopping it up. You can rush in.

Troy Hendrickson [00:26:10]:

Yeah. You can rush in

Steve Palmer [00:26:11]:

the The that is something called effervant evidence, meaning evidence that is likely to be destroyed if you don't go get it now. That would create an emergency that you should go you like, there's not enough time. And then the other flip side is, well, couldn't you have just posted a couple cops right there and say, you hang tight, make sure nothing happens to this evidence. We're gonna call judge Wilson and get us a warrant.

Troy Hendrickson [00:26:34]:

Yeah. The judge said, why don't

Steve Palmer [00:26:35]:

you just block the driveway with a cop car? Yes. Yeah. Yeah.

Troy Hendrickson [00:26:38]:

I mean, which made sense to me. I was like, yeah. That's

Steve Palmer [00:26:40]:

right. The car is not going anywhere. It's not going anywhere.

Bella Mata [00:26:42]:

I feel like at that point, it's like, what's the point of the Fourth Amendment? If you could just fly a drone wherever you want, and then that gives you enough to be able to just search

Troy Hendrickson [00:26:52]:

And you see property. Yeah. And and the judge says, so you see a red car, so you know that's the car?

Steve Palmer [00:26:57]:

Yeah. You're first making the assumption it's the red car, and you're second making the assumption that you have to go get it now or there's some peril if you go get a search warrant. Yeah. That's a little dicey. But, you you know, you brought up a good point, Bella. And this is this is where people say is why do you need logic or the LS logic is important in law because you you've got a rule that says you have to go get a search warrant under the Fourth Amendment. Then you have exceptions that say, except when these things happen. But if you have too many exceptions, they succumb the rule, and the rule goes away.

Troy Hendrickson [00:27:29]:

Right.

Steve Palmer [00:27:30]:

And then you have exceptions to exceptions. Now you're back to the rule. So it's like you you have to understand how all that stuff fits together. And if if if you water it down so much, you get to the point where what's the what's the what's the meaning of it anyway? I would have suppressed. I I don't I have to read the case to see why they let him let the police go on Bradley's property to seize the red car even after they flew the drone. But that would without a search warrant that is.

Troy Hendrickson [00:27:55]:

Yeah. I think we wanna you wanna talk about if the drone comes on your property, whether or not you can shoot it?

Steve Palmer [00:28:01]:

So here's the question. We're gonna take a poll. We're gonna take a poll because I I I do not let's just say let's take the cops out of this. This is good stuff. So let's take the cops out of this. Instead, what we're gonna do is, we're gonna do some skeet shooting, some drone shooting. And my net my neighbor or some guy ten ten miles away or five miles away decides to fly a drone. And this happened at my in law's house.

Steve Palmer [00:28:23]:

One of their cousins or somebody flew a drone all the way to their house from heaven I don't know how far it was, but far away. You know, they're on GPS, so they go right home. And there's next thing you know, there's a drone staring at you. Like, well, look. I like to go shoot sporting clays. That seems like an easy shot.

Troy Hendrickson [00:28:42]:

They look so similar to you.

Steve Palmer [00:28:43]:

I'm sorry. It's like shooting ducks. So I shoot it out of the air, and I destroy the drone. What say you guys?

Troy Hendrickson [00:28:54]:

I think it depends on the circumstances, like, how big the property is, how low they're flying. Like, I mean, it's I I think if it's, like, just flying down low on your property, you have, like, a five acre plot, I would say shoot it. I I know there was there was a little video yesterday, the Drake one. Mhmm. And he's up on top of this like skyscraper for instance. And the drone literally is flying on his patio and he like throws a shoe at it. Like, it was got that close to him. And He missed by a lot.

Troy Hendrickson [00:29:25]:

Yeah. I mean, that's that's what he's he's had a rough year. Yeah. That's what I promised, though.

Steve Palmer [00:29:30]:

Not bad news. Think about the paparazzi. Right. Yeah. Using drones. I mean, you're they're gonna be in your backyard. So look. I mean, you two things are gonna be true.

Steve Palmer [00:29:39]:

The first thing that's gonna be true is the law is probably not gonna permit a private citizen from trespassing on your property with a drone.

Troy Hendrickson [00:29:46]:

Yeah.

Steve Palmer [00:29:47]:

Right. Fair enough. The second thing is probably also gonna be true. Just because they're trespassing with a drone, you're probably not allowed to blow it out of the sky with a shotgun without some consequence. That's gonna be criminal damaging or some destruction of property. I'm not gonna say what I would do, so let's take a poll of our let's take a poll of all the lawyer talk followers out there. What would you do? You got a drone in your backyard. You blow it out of the sky or not.

Steve Palmer [00:30:12]:

We'll we'll just sort of leave it open.

Troy Hendrickson [00:30:14]:

There there was the Florida man one we're looking at and where he did shoot a Walmart drone dropping off a package. I guess it was at 200 feet, dropped down to 75. And then, you know, he shoots it. He say he only shot once and he hit it. So he's a great shot. You should go ski shoot with him. It's 75 feet? Yeah. I mean, that's that's not bad.

Troy Hendrickson [00:30:30]:

And, he got charged. They end up dismissing it. He took, like, a plea deal for, what's it called? Like,

Steve Palmer [00:30:36]:

Diversion or something?

Troy Hendrickson [00:30:37]:

Diversion. Yeah. Diversion. They they sent to a school where they teach you not to shoot a drone. So it's

Steve Palmer [00:30:41]:

like Yeah.

Troy Hendrickson [00:30:41]:

Now now he's like

Steve Palmer [00:30:42]:

You've learned your lesson.

Troy Hendrickson [00:30:43]:

Yeah. I know drones are okay. He's like, just tweak it. Yeah.

Bella Mata [00:30:47]:

I'm just thinking, like, older people would like, who aren't familiar with it would be like, what is this on my property?

Steve Palmer [00:30:54]:

Getting invaded, man. I mean, it's like there's a drone. Like, the kitchen the kitchen window one Mhmm. It'd be hard for me not to take some sort of immediate action if some son of a bitch is spying on me through my kitchen window.

Troy Hendrickson [00:31:05]:

Yeah. It's weird.

Steve Palmer [00:31:06]:

I mean, how's that not a home invasion? Or, you know, look. I mean, think of all the nefarious things that people could be doing. They could be just peeping toms. Mhmm. They could be, casing your property to see if anybody's home so they can break in. They could be delivering a some some completely innocent thing like dropping a package. So these are these are issues that we're gonna have to iron out as a society. I was up at Bowling Green, and they got these little robots that deliver food to people.

Steve Palmer [00:31:31]:

And I'm like, well, that just seems like it's wrought with peril here. So I hate that. Or fraught, rot, whatever. That that seems troubling, because you you at some point, some bike is gonna hit one or something's gonna happen. Like, who's responsible?

Troy Hendrickson [00:31:44]:

We were stretching one time, and the robot's delivering somebody to Starbucks in the morning. Like this and just ran over my arm. And I was like, oh my god.

Steve Palmer [00:31:51]:

I was like Right. Tell me tell me that's not a little bit disturbing. Yeah.

Bella Mata [00:31:55]:

I heard the police use them now or they want to use them. If someone calls in an emergency, the drone could get there in, like, ninety seconds and check it out

Steve Palmer [00:32:05]:

All sorts

Bella Mata [00:32:06]:

of information

Steve Palmer [00:32:06]:

that. Yep.

Bella Mata [00:32:07]:

Which is good. But then I also feel like we're getting to a point where, like, we leave the house and we feel like we're already being watched if it's like we're there's drones all over catching your every move. It's kinda like the police don't even have to be there to see it.

Steve Palmer [00:32:20]:

Well, we're this and this is where and case law is starting to do this to bring this back to some reality. Case law is starting to do this where where courts are equating these issues with cell phone issues and whether the police are able to have access to the contents of your phone, your location services, this idea of geofencing where they're getting your location, and everybody else's location based on your phone pinging a tower or whatever it would be. And that's a whole another episode, and there's a bunch of case law that's emerged on that with Joy and I have done some suppression issues on it. But, yeah, I mean, these are these are technological things that were that, you know, until recently, it was all science fiction. Like, who would have thought you call the cops and then get there fast with a 911 call with a drone? And I've had cases. You know, I had a murder case down in Hocking County where that would have been most helpful because there's no cell service and the cops couldn't get there or it not there was no cell service. There's too far away for the cops to get there.

Troy Hendrickson [00:33:16]:

Imagine getting chased by a murder and the drone flies up and just yelling stop stop.

Steve Palmer [00:33:21]:

So like What if it's equipped what if it's equipped with, Like a gun? Tasers.

Troy Hendrickson [00:33:25]:

Oh, tasers.

Bella Mata [00:33:26]:

Yeah. Pepper spray.

Troy Hendrickson [00:33:27]:

Yeah. Or pepper spray.

Steve Palmer [00:33:28]:

Pepper spray. Right? I mean, there's some there's some good things that would come from that.

Bella Mata [00:33:31]:

I think so too. I think it could be very helpful, but I feel like

Steve Palmer [00:33:35]:

Big brother.

Bella Mata [00:33:36]:

They gotta draw the line somewhere. I don't know. I feel like it could maybe go too far.

Steve Palmer [00:33:41]:

And this is this is where we, meaning our country, we have a whole different view on this historically. We don't like people bugging us. Mhmm. We don't like people watching us. We don't live in a collective world of of communal happiness. You know? It's like we're private people, and that's just the American way. It always has been the American way. Like it or not, you know, people people think, well, it should be like you're no.

Steve Palmer [00:34:05]:

It's not. We left. Right? We left, and we wrote our own rules, and we created our own country. And we said, we don't want no king telling us what we can do. We don't wanna participate in this authoritarian nonsense. I I have said for years, the easiest way to eliminate crime is to put, stormtroopers with jack boots on every corner carrying guns. Anybody who's been to, Mexico on a vacation, that's what you see. You see these guys cruising around in jeeps with their armor and guns and and they have their, I don't know what they are, AKs or or ARs, and nobody else does.

Steve Palmer [00:34:39]:

Well, there's no street crime, but the cartels are in the damn country. Right? There's there's bigger problems. And the the problem with that is you can eliminate all of that kind of crime except you can't eliminate the crime that those people are committing. And, you know, the freedom comes at the price of safety. Always does. So, anyway, go read John Locke. Go read Thomas Hobbes, and then find your middle ground.

Bella Mata [00:35:03]:

I think the drones with AI is gonna be interesting because AI now you could ask it, pull up a man who's five or six foot with a mustache, and it'll, like, pull you up. You know?

Steve Palmer [00:35:16]:

Well So That's right. Well, five zero six?

Troy Hendrickson [00:35:17]:

What do you mean five? Six or six too?

Bella Mata [00:35:19]:

Okay. Didn't didn't

Troy Hendrickson [00:35:20]:

I say six foot? Foot?

Bella Mata [00:35:21]:

Oh, yeah.

Troy Hendrickson [00:35:22]:

Maybe. I was

Steve Palmer [00:35:23]:

I thought I said five six. Come on. Face recognition software, like casinos, and, you know, you hear about this stuff. And it's like, it's scary stuff. Scary stuff. Because we like our we like our privacy. We like our freedom. And the fourth amendment is designed to protect both those things.

Steve Palmer [00:35:37]:

So, anyway, they didn't teach you any of this. They didn't have these conversations or maybe you did. This is this sound a little bit like a law school discussion.

Troy Hendrickson [00:35:42]:

Little bit. Little bit. They just dabbled with the drone. The thing is there's I mean, there's no federal case law. Right. Yeah. It's gonna be exciting to see how it rolls out. It's gonna be awesome.

Steve Palmer [00:35:50]:

You've just, you have just solidified yourself as a legal geek. It's gonna be exciting to see how this this plays out. And it is. I agree. I mean, I I this this is what makes our job sort of interesting and fun, just to watch this stuff unfold. We're living it, folks. So alright, they don't teach you that in law school. Lawyer talk off the record on the air, at least until now.