Gathering Information for Probable Cause Against Your Neighbor

[sheclown]

Code enforcement cannot enter a private property without a search warrant or permission.  In order to get a search warrant, the officers will need "probable cause."

At the meeting on Thursday night, we learned that SPARs current "rooming house plan" is to get information documented, gathered and collected for the city to use as probable cause against the property owners.

Do we have SPAR's list of 7 ways to gather this information yet? Just curious.  Some of the ways discussed were:  affidavits, photos of people on porches, tape recordings of casual conversations, asking people where they live and the living arrangements.

What do we know about the Fourth Amendment?  I was sleeping that day in Government class.

[strider]

Personally, I think the first thing that should be done is to find out if that entire concept is true or not.  Can the code enforcement officers get a "search" warrant at all whether they show probably cause or not? We all know that the police can if probably cause is shown regarding illegal activity, but this is zoning codes and rather minor ones at that...in other words, it is not setting up to make steel in the center of a residential area, but renting rooms out within a house you own.

Once that is determned and if it is possible, then the "probably cause" needed should be pretty well spelled out all ready.

[sheclown]

How about:   Camara v. Municipal Court (1967),

[ChriswUfGator]

Tape recording people without their knowledge and consent is wholly illegal in Florida. Taking photos of people for later publication to 3rd parties without their knowledge and consent is borderline. So there goes two of the suggestions right off the bat.

Of course, this is hardly the first time SPAR has shown a total disregard for the rules, e.g. abusing the CARE system with bogus complaints, encouraging a councilman to break sunshine laws, breaking its own bylaws by refusing to hold elections, bogus petitions, yada, yada, yada. So I guess it's really not that surprising.

[cindi]

if someone is out in a public area there is no expectation of privacy - photo's are allowed.

[Springfielder]

If the person is out in public view, taking photos is legal as there's little to no right to privacy. However, just because someone takes photos of people on a porch, etc does not constitute any confirmation that they reside there. Recording (ie: conversations) isn't permissible in court, not without their (the persons being recorded) consent.

I don't see where the police would become involved as far as probable cause to obtain a search warrant for code enforcement to enter the property. I don't believe a violation of a city ordinance would fall under a criminal act...which to my understanding are not the same at all. However, I'm uncertain if perhaps the fire marshal could enter with/without cause or permission.

Edit, I see Cindi also addressed the non violation of privacy

[chris farley]

When HSCC was in place every month there was a walk and information gathered against neighbors regarding what HSCC regarded as violations, I know because I got stuck with the record taking a couple of times - sometimes the police walked with us.  Also the police wish for photos of drug dealing  and PLEASE do not twist that into someone saying there is drug dealing in your rooming houses

[ChriswUfGator]

if someone is out in a public area there is no expectation of privacy - photo's are allowed.

When someone is on public property, e.g. a sidewalk, a commercial business open to the public, a public beach, a public street, a public park, a public restaurant, you name it, whatever, then you've got a point. But this isn't public, the person being photographed is on private property.

So this is a private person (not a public figure) sitting on or in their own property and being photographed by a 3rd party who intends to publish those photos without their knowledge or consent. That most certainly will be a problem, and the photographs should not be published (by published, the law means distributed to third parties) without their knowledge and consent.

[Springfielder]

It doesn't matter if they're on private property, sitting in their personal car, etc...if they're out in public view, there's no expectation of privacy

[ChriswUfGator]

It doesn't matter if they're on private property, sitting in their personal car, etc...if they're out in public view, there's no expectation of privacy

I believe you're a bit confused, in that the public view exception for gathering evidence that establishes probable cause only applies to law enforcement officers. It has nothing to do with whether I can sneak around taking pictures of you in your own property and then re-distribute them.

It seems you believe that, if you can see someone at any time, then you're allowed to photograph them regardless of the circumstances. That is simply not correct.

[Springfielder]

I'm not confused, and I'll state this again....if the person is outside, in public view, there is no expectation of privacy. There is nothing illegal (not saying it's not tacky or otherwise) for someone to stand outside someones house and photograph the people outside.

State the case law that says you cannot be photographed while in public view

[sheclown]

I hadn't thought of stalking laws.

[Springfielder]

The only problem with that, is it's pretty hard to prove...but it certainly could be an option

[buckethead]

Clearly SPAR is only seeking to track any disinformation so they can respond appropriately.

Just like when the White House sought to have "fishy" emails forwarded. No need to call the ACLU.

*These aren't the civil liberties violaters you are looking for... These civil liberites violaters are free to move on*

[ChriswUfGator]

There is nothing illegal (not saying it's not tacky or otherwise) for someone to stand outside someones house and photograph the people outside.

State the case law that says you cannot be photographed while in public view

I still believe it may be improper to photograph a private person and publish the photos to third parties without their consent, in connection with an implication that a law is being broken. As to case law on publishing an private individual's information or likeness;

Article I Section 23 of the Florida Constitution,

Rivers v. Dillards Dept. Store, Inc., 698 So.2d 1328 (Fla.App. 1 Dist., 1997)

Agency for Health Care Admin. v. Assoc. Indus. Of Florida, Inc., 678 So.2d 1239, 1252 (Fla. 1996)

Cason v. Baskin, 155 Fla. 198, 20 So.2d 243 (Fla. 1945)

and multiple others concerning publishing the private information and/or likeness of a private individual without permission.

But in this case, the "evidence gatherers" aren't acting on their own behalf, or for any commercial purpose. Rather, they're acting in order to gather probable cause for COJ's property enforcement operations, and because this is the scope of their actions, they're going to be held to the same standard as COJ would be under the same circumstances.

And to answer that question;

State v. Parker, 399 So.2d 24 (Fla.App., 1981)

State v. Butler, 1 So.3d 242 (Fla.App. 1 Dist., 2008)

State action is present, for Fourth Amendment purposes, when (1) a private party acts as an instrument or agent of the state in effecting a search and seizure, and the government knows of and acquiesces to the conduct, and (2) the search is conducted solely in pursuit of a governmental interest, rather than the private actor's self-interest. U.S.C.A. Const.Amend. 4

So where does that leave us? The self-described "probable cause gatherers" will probably be held to the same standard as the governmental entity making use of the information. So then you have to ask yourself whether anything they find can be used to support a finding that a property is a rooming house. That depends on the extent to which someone's privacy rights are invaded. This will be a case-by-case basis, and if the photographs are violative then they can't be used.

However, there appears to be only one case that is directly on point in Florida for the situation we're discussing, namely photos being taken by neighbors and then turned into code enforcement and the owners later alleging this violated their privacy rights;

Town of Sewall's Point v. Rhodes, 852 So.2d 949 (Fla.App. 4 Dist., 2003)

This case involved neighbors taking photographs of private property and turning them into the City for enforcement purposes, and then the landowners later alleging this violated their right to privacy. The case didn't go well for the owners. Even when the photographs were labeled by the neighbors "The Hillbilly Hellhole", the court still found this was not defamatory and did not violate any of the landowner's privacy rights. So that does seem absolutely dispositive that the property owners' rights aren't violated by this type of photography.

But the rights of other people on that property may be another story. There just isn't much law on this exact point, except for the above case, which admittedly seems to find no problem with it, although again I'm stumped because that only related to the owner's rights and not to random people in the photograph.

Honestly, after researching it, I've got no clue. At first, I'm inclined to say Dillards would dictate you can't photograph people without consent and wrongfully publish the photographs implying they're breaking a law, but then the purpose of these photographs isn't to imply that the people being photographed (the rooming house residents) are breaking any law. Their purpose is to imply that the landowner is breaking a law, and the landowner doesn't appear to be protected, according to the appeals court's review of Sewall's Point. But again, that was property not people. So honestly, who knows?