Seizure | When has a Suspect or Defendant been Seized?

A seizure occurs when a reasonable person in the defendant’s position would not feel free to terminate the encounter.

Detention Arrest Seizure Florida

When has a Seizure of a Suspect or Defendant Occurred?

Recently I reviewed a case where the cop told a suspect that if he moved, he would be shot. He was not handcuffed or arrested at that point. Was this a seizure? YES The term “seizure” is an important concept in criminal defense. A person can be “seized” before he is actually restrained by physical force at the moment when, given all the circumstances, a reasonable person would believe he is not free to leave. Michigan v. Chesternut, 486 U.S. 567, 573 (1988). As the Supreme Court reaffirmed in Florida v. Bostick,, the test for determining whether a Terry stop has taken place “is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” 501 U.S. at 436.

Under Florida law the question of a seizure turns on “whether, taking into account all of the circumstances surrounding the encounter, the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'” Bostick at 437. The court stressed in Chesternut that there is a need for a seizure test which “calls for consistent application from one police encounter to the next” and permits police “to determine in advance whether the conduct contemplated will implicate the Fourth Amendment.” Chesternut at 574.

“Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.” Florida v. Royer, 460 U.S. 491, 497; 523, n. 3 (REHNQUIST, J., dissenting).

Tampa Drug Lawyer on Marijuana Drones | Your Legal Defense Options | Video

Law Enforcement Drones - Tampa Drug Lawyer on Marijuana, Drones & Your Legal Defense Options

Marijuana Drones Drugs and Defenses – Tampa Drug Lawyer on Marijuana, Drones & Your Legal Defense Options

In 1989, a soon-to-be former drug crimes prosecutor and now a Tampa Drug Lawyer  published an article in prominent law review. Almost 25 years ago, Florida and the Feds were in the middle of the war on drugs and marijuana. That was before the rise of the machines – the drones. Recently, the Feds are issuing rules for use of drones ( unmanned aircraft systems or UAS ) by the public. Conspicuously absent from the new proposed are rules for the cops. The Supreme Court has not addressed the rise of the drones. As noted over 20 years ago before I was a prosecutor and now a Tampa Drug Lawyer:

“The United States Supreme Court must apprise itself of the emergent and contemporary technologies that have rendered its prior holdings lethal weapons to the provisions of a Constitution originally drafted to prevent invasions into the private lives of citizens.”

No Search Warrants Needed for Residential Property by Drones

 

Because of recent Federal regulations regarding the use of unmanned aerial drones, we can no longer assume  the right to privacy in our own yards, homes, property, or businesses is intact. Since the United States Supreme Court decided that a helicopter with a high-powered camera aimed at a Florida Marijuana grow house did not constitute a search. If anything is visible from any vantage point that a an aerial drone may take, this information can be used against us in a court of law without requiring a Search Warrant.

“With digital cameras, 2,000 mm digital lenses with magnification of over 40x, placement of a drone with highly capable optics outside of homes and businesses is frightening.” 

Police Use of Drones

Florida Statute 934.50 Limits Use of Drones by Police

Florida Limits Use of Drones by Law Enforcement

 

Florida Statute 934.50 limits Searches and seizure using a drone. The Florida law on drone searches is called the “Freedom from Unwarranted Surveillance Act.” The law may limit use of these aircraft in a way that the new federal proposed regulations has missed. Under this law, a law enforcement agency may not use a drone to gather evidence or other information, unless “the law enforcement agency first obtains a search warrant signed by a judge authorizing the use of a drone.” One of the exceptions may be used by cops to avoid suppression of evidence. “If the law enforcement agency possesses reasonable suspicion that, under particular circumstances, swift action is needed to prevent imminent danger to life or serious damage to property, to forestall the imminent escape of a suspect or the destruction of evidence, or to achieve purposes including, but not limited to, facilitating the search for a missing person.” The penalties for failure to comply with the law are, “a civil action against a law enforcement agency to obtain all appropriate relief in order to prevent or remedy a violation of this act . . . [and evidence] obtained or collected in violation of this act is not admissible as evidence in a criminal prosecution in any court of law in this state.”

Summary of DOT and FAA Proposed New Rules for Small Unmanned Aircraft Systems from a Tampa Drug Lawyer

 

The feds have said, “Generally speaking, the new rules would not apply to government aircraft operations, because we expect that these government operations will typically continue to actively operate under the Certificate of Waiver or Authorization (COA) process unless the operator opts to comply with and fly under the new small UAS regulations.” In practice the police may not even have to abide by the new rules.

The FAA has previously announced, “Common public uses today include law enforcement, firefighting, border patrol, disaster relief, search and rescue, military training, and other government operational missions.” The FAA knows about these uses and they appear to be authorized.

See http://www.faa.gov/uas/public_operations/

 Video – Unmanned Aircraft Drone Usage Rules

 

 

Here are the key provisions. A small unmanned aircraft system or UAS  is under 55 pounds; flights limited to daylight and visual-line-of-sight operations; there are height restrictions; operator certification; use of another visual observer; registration and marking of the drone; and operational limits. Drone flights are limited to 500 feet altitude and no faster than 100 mph.

Seven More Things to Know about Drone Usage

 

The new rule also proposes operating limitations designed to minimize risks to other aircraft and people and property on the ground: 1) A small UAS operator must always see and avoid manned aircraft. 2) If there is a risk of collision, the UAS operator must be the first to maneuver away. 3) The operator must discontinue the flight when continuing would pose a hazard to other aircraft, people or property. 4) A small UAS operator must assess weather conditions, airspace restrictions and the location of people to lessen risks if he or she loses control of the UAS. 5) A small UAS may not fly over people, except those directly involved with the flight. 6) Flights should be limited to 500 feet altitude and no faster than 100 mph. 7) Operators must stay out of airport flight paths and restricted airspace areas, and obey any FAA Temporary Flight Restrictions (TFRs).

Here is a link to the Proposed New Rules for Small Unmanned Aircraft Systems

Here is a link to the FAA Press Release on the Drone Rules

Here is link to the Tech Crunch Story on Small Unmanned Aircraft Systems

Excerpts From 1989 Law Review Article on Marijuana Grow House Surveillance

 

Before I was a drug lawyer in Tampa, while a member of the Stetson Law Review in 1989-90, I became concerned with the use of technology against citizens. At the time, helicopters and aircraft were equipped with film cameras and 500 mm lenses. This allowed a magnification of about 10x. With digital cameras, 2,000 mm digital lenses with magnification of over 40x, placement of a drone with highly capable optics outside of homes and businesses is frightening.

Fourth Amendment Aerial Privacy: Expect the Unexpected
By W.F. “Casey” Ebsary, Jr. 19 Stetson Law Review 273 (1990)

Michael Riley was growing marijuana in a greenhouse behind his home in rural Pasco County, Florida. A fenced yard surrounded both the greenhouse and Riley’s home. The greenhouse was enclosed on two sides, and the view into one of the remaining sides was obscured by shrubbery within the fenced perimeter. The other open side was shielded from view by the home. The contents of the greenhouse were not visible from the ground.
. . .

The Riley case is significant because it is now questionable whether there are reasonable expectations to be free from the probing eye of the government above. Even those activities within the close confines of the home are now subject to aerial scrutiny. Therefore, activity which one wishes to remain private must now be confined to areas strictly within the walls of the home, with the curtains securely drawn. The Court’s rejection of Riley’s privacy claim signals the continued erosion of personal privacy rights under the fourth amendment.
. . .

Emergent technologies may sculpt the fourth amendment’s protections of privacy rights. Katz indirectly addressed the issue of technological advances and their impact upon fourth amendment privacy rights. Justice Harlan stated that the “legitimate needs of law enforcement may demand specific exceptions” to the warrant requirement; however, the Justice deferred consideration of these circumstances to such time as they were presented to the Court. Such circumstances arose in 1986 when the Court again visited both the curtilage and open field doctrines.
. . .

The Supreme Court has nearly eliminated any right which a citizen has to aerial privacy. Such privacy, if it ever existed, is all but gone as we have reached a point where further erosion of citizens’ fourth amendment rights to aerial privacy is not easy to envision. After the recent line of aerial privacy decisions in Ciraolo, Dow, and now Riley, the public can be reasonably certain that the government will be able to aerially observe ground activities, free from the restraint of the fourth amendment. Even with the curtains drawn, it is conceivable that from an aerial perch an officer could peer into the home through a crack in the curtains and be free to report his observations and use such information to the government’s advantage.
. . .

CONCLUSION

The United States Supreme Court must apprise itself of the emergent and contemporary technologies that have rendered its prior holdings lethal weapons to the provisions of a Constitution originally drafted to prevent invasions into the private lives of citizens. The Court must reconsider its application of the Katz  standard in approaching aerial privacy claims. Otherwise, we will all be expected to expect the unexpected.

Complete Article is here:

http://www.stetson.edu/law/lawreview/media/19StetsonLRev1.pdf

Complete Text of Florida Drone Law:

934.50 Searches and seizure using a drone.—
(1) SHORT TITLE.—This act may be cited as the “Freedom from Unwarranted Surveillance Act.”

(2) DEFINITIONS.—As used in this act, the term:
(a) “Drone” means a powered, aerial vehicle that:
1. Does not carry a human operator;
2. Uses aerodynamic forces to provide vehicle lift;
3. Can fly autonomously or be piloted remotely;
4. Can be expendable or recoverable; and
5. Can carry a lethal or nonlethal payload.
(b) “Law enforcement agency” means a lawfully established state or local public agency that is responsible for the prevention and detection of crime, local government code enforcement, and the enforcement of penal, traffic, regulatory, game, or controlled substance laws.

(3) PROHIBITED USE OF DRONES.—A law enforcement agency may not use a drone to gather evidence or other information.

(4) EXCEPTIONS.—This act does not prohibit the use of a drone:
(a) To counter a high risk of a terrorist attack by a specific individual or organization if the United States Secretary of Homeland Security determines that credible intelligence indicates that there is such a risk.
(b) If the law enforcement agency first obtains a search warrant signed by a judge authorizing the use of a drone.
(c) If the law enforcement agency possesses reasonable suspicion that, under particular circumstances, swift action is needed to prevent imminent danger to life or serious damage to property, to forestall the imminent escape of a suspect or the destruction of evidence, or to achieve purposes including, but not limited to, facilitating the search for a missing person.

(5) REMEDIES FOR VIOLATION.—An aggrieved party may initiate a civil action against a law enforcement agency to obtain all appropriate relief in order to prevent or remedy a violation of this act.

(6) PROHIBITION ON USE OF EVIDENCE.—Evidence obtained or collected in violation of this act is not admissible as evidence in a criminal prosecution in any court of law in this state.

History.—s. 1, ch. 2013-33.

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