Can you please help me pull this Appellate Brief together? I am not sure how to tie all of the cases together and if I need all that I have listed. What I have is written below.

IN THE

COURT OF APPEALS OF THE STATE OF FLORIDA

_____________________________________________________________________________________

No. 11 - 11111

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KIMBERLY HALL,

Petitioner,

v.

STATE OF FLORIDA,

Respondent,

_____________________________________________________________________________________

ON APPEAL TO THE COURT OF APPEALS OF

THE STATE OF FLORIDA FROM

THE FLORIDA TRIAL COURT

_____________________________________________________________________________________

BRIEF OF PETITIONER

_____________________________________________________________________________________

Fancy Lawyer

Attorney for Petitioner

0000 Beach Road

Sunshine, Florida 90210

TABLE OF CONTENTS

Index of Authorities..........................................................................................1

Statement of Jurisdiction....................................................................................2

Statement of Issues..........................................................................................3

Statement of Facts...........................................................................................3

Argument......................................................................................................4

Conclusion....................................................................................................6

Relief...........................................................................................................6

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INDEX OF AUTHORITIES

CASES

Florida v. Michael A. Reilly, 488 U.S. 445, 109 S. Ct. 693, 102 L. Ed. 2d 835, 57 USLW 4126 (January 3, 1989)

Kyllo v. United States, 533 U.S. 27

STATUTES

U.C.A. 1953, Const. Art 1, 14 [Unreasonable searches forbidden - Issuance of Warrant]

934.50Searches and Seizure Using a Drone

CS/CS/SB 766: Surveillance by a drone.

California Civil Code Section 1708.8

Arkansas Act 293

STATEMENT OF JURISDICTION

This Honorable Court has jurisdiction pursuant to Florida Code Annotated 78A-5-102

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QUESTIONS PRESENTED

DOES Florida State Const. art. I, 14 PROVIDE FOR A REVERSAL BASED ON UNLAWFUL SEARCH AND SEIZURE?

STATEMENT OF FACTS

Kimberly Hall runs a small salvage yard on a private piece of property of 2.5 acres surrounded by fences, trees etc. She was convicted under Florida State law for charges of theft, trafficking in stolen property, fraud, and alteration of vehicle identification numbers.

On the day of Hall's arrest, the state and local authorities set up drone surveillance from about 100 feet in the air to investigate Hall after they received anonymous phone calls that he was operating several automotive chop shops. The drone cameras captured evidence of dismantled vehicles, automotive parts, and license plates. Hall was immediately taken into police custody and charged based on the footage.

At trial, residents in the community said the drones created unnecessary panic which caused multiple phone calls to the police, property damage, and at least one assault. The trial court considered all testimonies, exhibits, and arguments and found Kimberly Hall guilty.

ARGUMENT

A SEARCH AND SEIZURE CANNOT BE PREFOMED WITHOUT A VALID SERACH WARRANT AND MUST BE ISSUED UPON PROBABLE CAUSE.

934.50Searches 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)"Image" means a record of thermal, infrared, ultraviolet, visible light, or other electromagnetic waves; sound waves; odors; or other physical phenomena which captures conditions existing on or about real property or an individual located on that property.

(c)"Imaging device" means a mechanical, digital, or electronic viewing device; still camera; camcorder; motion picture camera; or any other instrument, equipment, or format capable of recording, storing, or transmitting an image.

(d)"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.

(e)"Surveillance" means:

1.With respect to an owner, tenant, occupant, invitee, or licensee of privately owned real property, the observation of such persons with sufficient visual clarity to be able to obtain information about their identity, habits, conduct, movements, or whereabouts; or

2.With respect to privately owned real property, the observation of such property's physical improvements with sufficient visual clarity to be able to determine unique identifying features or its occupancy by one or more persons.

(3)PROHIBITED USE OF DRONES.

(a)A law enforcement agency may not use a drone to gather evidence or other information, except as provided in subsection (4).

(b)A person, a state agency, or a political subdivision as defined in s.11.45may not use a drone equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image in violation of such person's reasonable expectation of privacy without his or her written consent. For purposes of this section, a person is presumed to have a reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be, regardless of whether he or she is observable from the air with the use of a drone.

(4)EXCEPTIONS.This section 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.

(d)To provide a law enforcement agency with an aerial perspective of a crowd of 50 people or more, provided that:

1.The law enforcement agency that uses the drone to provide an aerial perspective of a crowd of 50 people or more must have policies and procedures that include guidelines:

a.For the agency's use of a drone.

b.For the proper storage, retention, and release of any images or video captured by the drone.

c.That address the personal safety and constitutional protections of the people being observed.

2.The head of the law enforcement agency using the drone for this purpose must provide written authorization for such use and must maintain a copy on file at the agency.

(e)To assist a law enforcement agency with traffic management; however, a law enforcement agency acting under this paragraph may not issue a traffic infraction citation based on images or video captured by a drone.

(f)To facilitate a law enforcement agency's collection of evidence at a crime scene or traffic crash scene.

(g)By a state agency or political subdivision for:

1.The assessment of damage due to a flood, a wildfire, or any other natural disaster that is the subject of a state of emergency declared by the state or by a political subdivision, before the expiration of the emergency declaration.

2.Vegetation or wildlife management on publicly owned land or water.

(h)By certified fire department personnel to perform tasks within the scope and practice authorized under their certifications.

(i)By a person or an entity engaged in a business or profession licensed by the state, or by an agent, employee, or contractor thereof, if the drone is used only to perform reasonable tasks within the scope of practice or activities permitted under such person's or entity's license. However, this exception does not apply to a profession in which the licensee's authorized scope of practice includes obtaining information about the identity, habits, conduct, movements, whereabouts, affiliations, associations, transactions, reputation, or character of any society, person, or group of persons.

(j)By an employee or a contractor of a property appraiser who uses a drone solely for the purpose of assessing property for ad valorem taxation.

(k)To capture images by or for an electric, water, or natural gas utility:

1.For operations and maintenance of utility facilities, including facilities used in the generation, transmission, or distribution of electricity, gas, or water, for the purpose of maintaining utility system reliability and integrity;

2.For inspecting utility facilities, including pipelines, to determine construction, repair, maintenance, or replacement needs before, during, and after construction of such facilities;

3.For assessing vegetation growth for the purpose of maintaining clearances on utility rights-of-way;

4.For utility routing, siting, and permitting for the purpose of constructing utility facilities or providing utility service; or

5.For conducting environmental monitoring, as provided by federal, state, or local law, rule, or permit.

(l)For aerial mapping, if the person or entity using a drone for this purpose is operating in compliance with Federal Aviation Administration regulations.

(m)To deliver cargo, if the person or entity using a drone for this purpose is operating in compliance with Federal Aviation Administration regulations.

(n)To capture images necessary for the safe operation or navigation of a drone that is being used for a purpose allowed under federal or Florida law.

(o)By a communications service provider or a contractor for a communications service provider for routing, siting, installation, maintenance, or inspection of facilities used to provide communications services.

(p)By a non-law enforcement employee of the Fish and Wildlife Conservation Commission or of the Florida Forest Service for the purposes of managing and eradicating invasive exotic plants or animals on public lands and suppressing and mitigating wildfire threats.

(5)REMEDIES FOR VIOLATION.

(a)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 section.

(b)The owner, tenant, occupant, invitee, or licensee of privately owned real property may initiate a civil action for compensatory damages for violations of this section and may seek injunctive relief to prevent future violations of this section against a person, state agency, or political subdivision that violates paragraph (3)(b). In such action, the prevailing party is entitled to recover reasonable attorney fees from the non-prevailing party based on the actual and reasonable time expended by his or her attorney billed at an appropriate hourly rate and, in cases in which the payment of such a fee is contingent on the outcome, without a multiplier, unless the action is tried to verdict, in which case a multiplier of up to twice the actual value of the time expended may be awarded in the discretion of the trial court.

(c)Punitive damages for a violation of paragraph (3)(b) may be sought against a person subject to other requirements and limitations of law, including, but not limited to, part II of chapter 768 and case law.

(d)The remedies provided for a violation of paragraph (3)(b) are cumulative to other existing remedies.

(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.

(7)SECURITY STANDARDS FOR GOVERNMENTAL AGENCY DRONE USE.

(a)As used in this subsection, the term:

1."Department" means the Department of Management Services.

2."Governmental agency" means any state, county, local, or municipal governmental entity or any unit of government created or established by law that uses a drone for any purpose.

(b)By January 1, 2022, the department, in consultation with the state chief information officer, shall publish on the department's website a list of approved manufacturers whose drones may be purchased or otherwise acquired and used by a governmental agency under this section. An approved manufacturer must provide appropriate safeguards to protect the confidentiality, integrity, and availability of data collected, transmitted, or stored by a drone. The department may consult state and federal agencies and any relevant federal guidance in developing the list of approved manufacturers required under this paragraph.

(c)Beginning on the date the department publishes the list of approved drone manufacturers under paragraph (b), a governmental agency may only purchase or otherwise acquire a drone from an approved manufacturer.

(d)By July 1, 2022, a governmental agency that uses any drone not produced by an approved manufacturer shall submit to the department a comprehensive plan for discontinuing the use of such a drone. The department shall adopt rules identifying the requirements of the comprehensive plan required under this paragraph.

(e)By January 1, 2023, all governmental agencies must discontinue the use of drones not produced by an approved manufacturer. The department shall establish by rule, consistent with any federal guidance on drone security, minimum security requirements for governmental agency drone use to protect the confidentiality, integrity, and availability of data collected, transmitted, or stored by a drone. The department may consult federal agencies in establishing the minimum-security requirements required under this paragraph.

In Florida Criminal Code Section 934.50 which states drones may not be used or surveillance in violation of another party's reasonable expectation of privacy; this includes law enforcement. Cause and a valid search warrant when a government entity conducts surveillance videoing in search for evidence. It states that when the government is using the surveillance videoing for testing or training, a warrant is not required. However, when a government entity is conducting an investigation or for law enforcement purposes, a valid search warrant must be issued. Permission must be obtained by all those who will be imaged including the owner of the property that is imaged. Several of the resident in the area complained that the drones caused a disturbance and panic. Apparently, none of the people or Ms. Hall were aware that they were being imaged, which shows the surveillance sweep was illegally preformed. There was no immediate condition or pressing matter for the government to execute the search. They were simply reacting to anonymous phone calls that mentioned suspicious activity at Ms. Hall's residence. The circumstances were not exigent, and no felony activity was suspected. Violators may be ordered to pay legal fees and compensatory damages; victims may seek injunctive relief.

U.C.A. 1953, Const. Art. 1, 14 - People's right to be secure in own home against unlawful searches; must issue valid search warrant for search and seizure; condition contains the following:

The right of the people to be sure in their persons, house, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, particularly describing the place to be searched, and the person or thing to be seized. Pursuant to the above U.C.A. 1953, Const. Art. 1 14, Ms. Hall had the right to privacy in his place of residence. He was secure in his ow home and his personal privacy was violated by the unlawful search. The police had no right to spy on Ms. Hall without his permission and did not have a valid search warrant issued upon probable cause when the seized him and whatever items at the time of the illegal search.

In Florida v. Michael A. Reilly, 488 U.S. 445 (1989) Mr. Reilly was charged with possession of marijuana under Florida Law. Respondent's objective was to convince the court that law enforcement violated search & seizure laws and violation of curtilage laws, to obtain the evidence against him by flowing 400 feet above Mr. Reilly's greenhouse to spot the marijuana growing.

Also, in Kyllo v. United States, the Supreme Court rule that the warrantless use of a thermal imaging device to monitor the radiation of the heat from a person's home on a suspected marijuana grower's home violated the Fourth Amendment which protects against "unreasonable searches and seizures."

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CONCLUSION

The trial court erred in convicting Ms. Hall since there was neither permission by her to enter her property not a valid search warrant. The search that was made was, in fact an unreasonable search and seizure.

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RELIEF

WHEREFORE, Petitioner respectfully requests that this Honorable Court reverse the decision of the Trial Court.elow.