Steve Palmer [00:00:00]:

Steve Palmer here back with a q and a, or we'll call this, like, response to comments segment, but it's really a q and a. And, you know, it's time for your foil hats because this has to do with, our episode. We talked about police and drones and spying or or searching, people's property and what are the constitutional ramifications that do they need search warrants, can they do without a search warrant. And I think the episode we called it, can police use drones to spy on you without a warrant? Well, Active Man is Here had a great comment and question. I'm gonna read it. Deep question for you here. So the courts established it depends on what you do with your property, and you gave the example of building a 20 foot fence. But most cities have restricted the height of a fence you can build, so we rely on something that is restricted by the same people that would violate our rights.

Steve Palmer [00:00:51]:

Chew on that. I did chew on that for a while. It's a good question, and I think it's worthy of, some further discussion. I'm not disagreeing with you here, in fact. I think, what you're saying is is true. You're sort of pointing out, like, this this idea that the people were that the fourth amendment is designed to protect us from, that is the government, is creating rules and laws that prevent us from exercising or from doing things that would establish our right to be protected from the government. I I get it. I didn't say it.

Steve Palmer [00:01:19]:

I didn't even say it as well as you did, but you understand what I'm saying. If they say I can't build a 20 foot fence and I can't build a 20 foot fence, and then they're gonna say because you didn't build a 20 foot fence, then we can fly a drone over your property and look at it. But it's not that simple. I I think there's more to this. First, I'll give you the other side. People I think, the other side would be this. Alright. I've chosen, for instance, to go build a house in a residential community, say one with an HOA association.

Steve Palmer [00:01:49]:

And I get it. This isn't government zoning necessarily. But what what actually, let's let's use this example. So I I build a house within city limits where there is a zoning restriction that says I'm only allowed to build a white picket fence four feet high. I can't build a 20 foot privacy wall, for various zoning reasons. Now there might be there might be a good reason for the zoning laws. You know, know, we maybe a lot of zoning has to do with aesthetics. It has to do with, the functionality of a neighborhood.

Steve Palmer [00:02:16]:

And, you know, there there are decent reasons for zoning. I'm not saying all the zoning restrictions are good. In fact, I've lived in neighborhoods where they're horrible, and it doesn't make any sense because they they regulate you down to what kind of mortar you use on your bricks. But, you know, building a wall and and not being able to build a 20 foot wall in a community is not necessarily an unreasonable restriction. But what they're gonna say is, look. That doesn't mean you don't have a right or a reasonable expectation of privacy, but you it's it's not gonna be the expectation of privacy that you would get by building a 20 foot wall. But you chose to move there. You know? You chose that area, and you chose, to buy the house there.

Steve Palmer [00:02:53]:

And fortunately, knock on wood, we still have freedom to make those choices. They can't force us to go they're not yet backfilling us all into cities and high rises, so the government can force us to live the way they want us to live. You know, we still have some freedom. I get it. It's not we don't all have the means to go live wherever we want. But in theory, there is some freedom there to make our choice. And if I can't build a 20 foot wall, I might be able to do other things. Maybe I want to establish an expectation of privacy, for stuff I store in my backyard.

Steve Palmer [00:03:22]:

So instead of a 20 foot wall, I put it in a locked, landscape box. Or, better yet, I'm not gonna do anything inside or what the the people could see over my fence. I'm gonna and I'm not talking about how to commit a crime, people. That's not what I'm talking about. I'm talking about living a private life. If I know that people can see my backyard, I'm not gonna do things that I want privacy, within my backyard. You know, I'm not gonna sunbathe nude. I'm not gonna engage in behaviors I don't want other people to see because I know that they can see me.

Steve Palmer [00:03:52]:

That's the theory behind it. So we gotta reverse it a little bit. We're doing things, with an expectation that I won't be seen. I'm not gonna do the things, with that expectation if it's not feasibly or rationally or logically possible not to be seen. So doesn't mean you don't have an expectation of privacy. It just is a sort of a sliding scale. Now I get what you're saying, and and here's the other side the other side of the other side of the coin is that if the if the if the government begins enacting laws that would make it impossible for you to have any reasonable expectation of privacy within your curtilage, in your backyard, or anywhere else. And no matter what you do, they have one up on you.

Steve Palmer [00:04:37]:

Now we're sort of getting into a different realm. Now we're getting into a realm where the government action itself, the regulatory scheme itself is gonna have to be analyzed in the context of the fourth amendment. So for instance, let me talk about freedom of speech for a second. We all have the freedom of speech, and in fact, I'm allowed you you know, there's there's famous cases where the KKK is allowed to march down Broad Street here in Columbus, Ohio and and establish a rally on the Capitol Lawn. And Black Lives Matter is allowed to do the same thing. But they wouldn't be allowed to do it without a permit. In other words, they're the the government's not gonna let them let any of these groups on either side of the equation shut down a city, in the middle of the rush hour traffic. The police could come in in that situation and disband the riot, or disband the the protest.

Steve Palmer [00:05:30]:

What they can't do, though, is be discriminatory in how they issue the permits. The KKK is allowed to the same permitting process as Black Lives Matter, as any other special interest group. I can go apply for a permit to have a rally. The government gets to put reasonable restrictions on when I can do it and how I can do it, but those restrictions have to be equally disseminated. So it's sort of an analogy to say if the government starts creating regulatory schemes that are intentionally designed to curtail our Fourth Amendment rights and don't have any other rational basis or any other even, even if you looked at it more strictly, any basis at all, there's gonna be a fourth amendment problem. Now I've gotten to some I did a deeper dive like you asked, and there's even a deeper dive you could do about constitutional review and how we actually look at these kind of regulatory schemes, but maybe we'll save that for another day. I hope that I hope that was at least an interesting discussion for you based on your comment because I do like your comment. I love the way you're thinking.

Steve Palmer [00:06:29]:

If you folks, anybody else has a question, a comment, leave it to us right here in the socials on YouTube or Facebook, wherever else you're catching, the show, or go to lawyertalkpodcast.com, and I'll do my best to answer it or discuss it right here. Until then, off the record, and I'm on the air.