United States v. Vankesteren

                       PUBLISHED


UNITED STATES COURT OF APPEALS
             FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,             
                Plaintiff-Appellee,
               v.                          No. 08-4110
STEVE VANKESTEREN,
            Defendant-Appellant.
                                      
       Appeal from the United States District Court
      for the Eastern District of Virginia, at Norfolk.
           Rebecca Beach Smith, District Judge.
                  (2:07-cr-00153-RBS-1)

                Argued: December 3, 2008

                 Decided: January 8, 2009

 Before MOTZ, GREGORY, and SHEDD, Circuit Judges.



Affirmed by published opinion. Judge Gregory wrote the
opinion, in which Judge Motz and Judge Shedd joined.


                        COUNSEL

ARGUED: James Orlando Broccoletti, ZOBY & BROCCO-
LETTI, Norfolk, Virginia, for Appellant. Dee Mullarkey Ster-
ling, OFFICE OF THE UNITED STATES ATTORNEY,
Norfolk, Virginia, for Appellee. ON BRIEF: Chuck Rosen-
2                UNITED STATES v. VANKESTEREN
berg, United States Attorney, Alexandria, Virginia, for Appel-
lee.


                          OPINION

GREGORY, Circuit Judge:

   The appellant in this case, Steve Vankesteren, invites us to
consider the application of the Fourth Amendment to a prod-
uct of modern surveillance technology: namely, a hidden,
fixed-range, motion-activated video camera placed in the
appellant’s open fields. We find that the protective wall of the
Fourth Amendment does not shield the appellant from the
Commonwealth’s use of such a camera, and we therefore
affirm the decision of the district court.

                               I.

   Appellant Vankesteren is a farmer on the Eastern Shore of
Virginia. In December 2006, the Virginia Department of
Game and Inland Fisheries ("VDGIF") received a telephone
call alerting them that a protected bird was trapped in a cage
in Vankesteren’s fields near a public road. Steve Garvis, an
agent with VDGIF, responded to the call and observed a trap
that was one-to-two feet high and contained five leghold
traps—one on top of the cage and four surrounding it. The
trap was uncovered and set, and it contained one live and one
dead pigeon inside. Garvis had allegedly seen a similar trap
on Appellant’s property in 2003 and on the internet being
advertised for the purpose of hawk trapping. In January 2007,
Garvis contacted the VDGIF’s Special Operations Division in
order to obtain video surveillance of the trap. Such cameras
were used because there were only five VDGIF special agents
in the Commonwealth. The camera had a viewing area of
twelve-by-twelve feet, ran only during daylight hours, and
was motion activated. On January 11, 2007, Garvis and the
                UNITED STATES v. VANKESTEREN                 3
special operations agents installed the camera without a war-
rant.

   On January 24, 2007, Special Operations Agent Gene
Agnese notified Garvis that he had obtained surveillance foot-
age of two birds being trapped and killed at the site of the
camera. Vankesteren killed the first bird on January 17. Gar-
vis could not identify the bird in the footage with certainty,
but he narrowed the possibilities to a red-tailed hawk, broad-
wing hawk, or red-shouldered hawk. Vankesteren killed the
second bird with an ax on January 20, and Garvis identified
the bird in that footage as a red-tailed hawk. Agnese advised
Garvis that their carcasses were likely along the hedgerow by
the trap, just outside the camera’s viewing area. On January
25, 2007, Garvis went to the area and located the carcasses.
He identified both of the birds by their markings as red-tailed
hawks. One of the hawks had sustained severe head damage,
consistent with the video footage, and the other carcass was
of an immature red-tailed hawk. The birds had not been eaten
and had not begun decomposing.

   On January 30, 2007, Garvis and Agent Dan Rolince of the
U.S. Fish and Wildlife Service met with Vankesteren at his
residence. He admitted to catching some hawks by accident
and placing their carcasses by the hedgerow. Vankesteren was
charged in the U.S. District Court for the Eastern District of
Virginia with two counts of taking or possessing a migratory
bird without a permit, in violation of 16 U.S.C. § 703 (2006)
and 50 C.F.R. § 21.11 (2008). Vankesteren appeared pro se
before a magistrate judge on August 7, 2007. The judge
refused to suppress the video surveillance footage and found
the appellant guilty on both counts, imposing a $500 fine for
each count, along with a $10 special assessment and $25 pro-
cessing fee. Vankesteren appealed the magistrate judge’s rul-
ing, but the district court found no error and entered a final
judgment against him on December 21, 2007. Vankesteren
subsequently appealed to this Court.
4               UNITED STATES v. VANKESTEREN
                             II.

   This Court has jurisdiction pursuant to 28 U.S.C. § 1291
(2000). "In reviewing a denial of a suppression motion, the
court reviews the district court’s factual findings for clear
error and the district court’s legal conclusions de novo."
United States v. Johnson, 114 F.3d 435, 439 (4th Cir. 1997).
We review the sufficiency of evidence on appeal by viewing
it and all inferences "in the light most favorable to the Gov-
ernment." United States v. Bursey, 416 F.3d 301, 306 (4th Cir.
2005). Findings of law are reviewed de novo, and findings of
fact are reviewed for clear error. Id.

                             A.

  Vankesteren largely conceded in oral argument that the
VDGIF placed its camera in a constitutionally unprotected
open field, but a review of the Supreme Court’s open-fields
doctrine is nonetheless essential to our consideration of this
case. In Hester v. United States, 265 U.S. 57, 59 (1924), the
Supreme Court first held that the protection of the Fourth
Amendment did not extend to open fields. In that case, reve-
nue officers went to Hester’s house and observed an illegal
moonshine transaction from fifty to one-hundred yards away
on Hester’s land. Id. at 58. The Court found no Fourth
Amendment violation. Id. at 59.

   The open-fields doctrine was clarified in Oliver v. United
States, 466 U.S. 170 (1984). There, the Supreme Court con-
sidered two cases in which marijuana was being grown in
wooded areas on the defendants’ properties. In one instance,
the police walked around a locked gate with a "No Trespass-
ing" sign, passed a barn and parked camper, and continued
after someone shouted at them to leave. A mile from the
defendant’s house, they found the marijuana field. Id. at 173.
In the other case, police followed a path between the defen-
dant’s residence and the neighboring house into the woods
until they saw two marijuana patches surrounded by chicken
                UNITED STATES v. VANKESTEREN                 5
wire. Upholding both searches, the Court held that "an indi-
vidual may not legitimately demand privacy for activities con-
ducted out of doors in fields, except in the area immediately
surrounding the home [the curtilage]." Id. at 178. The Court
further noted, "An open field need be neither ‘open’ nor a
‘field’ as those terms are used in common speech. For exam-
ple . . . a thickly wooded area nonetheless may be an open
field as that term is used in construing the Fourth Amend-
ment." Id. at 180 n.11.

  In United States v. Dunn, 480 U.S. 294 (1987), the
Supreme Court considered a case that involved property that
was approximately fifty yards from the main residence and on
which officers took the following actions:

    [They] crossed over the perimeter fence and one
    interior fence. Standing approximately midway
    between the residence and the barns, the DEA agent
    smelled what he believed to be phenylacetic acid, the
    odor coming from the direction of the barns. The
    officers approached the smaller of the
    barns—crossing over a barbed wire fence—and,
    looking into the barn, observed only empty boxes.
    The officers then proceeded to the larger barn, cross-
    ing another barbed wire fence as well as a wooden
    fence that enclosed the front portion of the barn. The
    officers walked under the barn’s overhang to the
    locked wooden gates and, shining a flashlight
    through the netting on top of the gates, peered into
    the barn.

Id. at 297-98. Once more, the Court found that there was no
Fourth Amendment violation. Id. at 301.

   The Dunn Court established four factors to consider when
resolving questions about the boundaries of curtilage: "the
proximity of the area claimed to be curtilage to the home,
whether the area is included within an enclosure surrounding
6               UNITED STATES v. VANKESTEREN
the home, the nature of the uses to which the area is put, and
the steps taken by the resident to protect the area from obser-
vation by people passing by." Id. at 301; accord United States
v. Breza, 308 F.3d 430, 435 (4th Cir. 2002). Applying the fac-
tors, the Court found that the barn was sixty yards from the
house, it was outside the fence surrounding the house, police
had objective data—aerial photographs—that showed the barn
was not being used for intimate activities, and there was no
indication that the interior fences were designed to keep peo-
ple out. Dunn, 480 U.S. at 302-03.

   Given the facts of these Supreme Court decisions, Vank-
esteren has little on which to base his case. Vankesteren’s
fields were located a mile or more from his home, the land
was being used for farming and not intimate activities,
VDGIF had received a report of a trapped protected bird, and
there is no indication in the record that Vankesteren had taken
any steps to protect his field from observation. Therefore,
under the Supreme Court’s jurisprudence, the subject land
must be classified as open fields and not curtilage, and Vank-
esteren has no reasonable expectation of privacy in those open
fields.

   As noted previously, Vankesteren has essentially conceded
this point. Vankesteren instead stakes his case on the argu-
ment that hidden surveillance cameras are subject to a higher
degree of Fourth Amendment scrutiny. He cites cases in sup-
port of that proposition; yet, none of these cases involve open
fields where the defendant presumably has no reasonable
expectation of privacy.

   In United States v. Taketa, 923 F.2d 665 (9th Cir. 1991),
the Ninth Circuit found that a DEA agent had a reasonable
expectation of privacy in his office, and that expectation was
violated through the use of hidden video surveillance. In so
finding, however, the court noted, "Video surveillance does
not in itself violate a reasonable expectation of privacy. Vid-
eotaping of suspects in public places, such as banks, does not
                 UNITED STATES v. VANKESTEREN                  7
violate the fourth amendment; the police may record what
they normally may view with the naked eye." Id. at 677. In
United States v. Nerber, 222 F.3d 597 (9th Cir. 2000), the
Ninth Circuit suppressed hidden video surveillance, but did so
because it found that drug dealers had a legitimate expectation
of privacy in their hotel room after police informants left.

   The Fifth Circuit considered a closer case in United States
v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir. 1987). There, the
police placed a camera on top of a power pole overlooking the
defendant’s ten-foot-high fence surrounding his back yard.
The court found that the defendant had a reasonable expecta-
tion of privacy that would have been violated because the
fence surrounded his curtilage. However, because the police
properly obtained a court order for the surveillance, the court
affirmed his conviction. Id. at 251-52. This case also does not
help Vankesteren because VDGIF’s camera was not placed
within or even near the curtilage of his home.

   Vankesteren then attempts to distinguish his case from
United States v. McIver, 186 F.3d 1119 (9th Cir. 1999), the
most directly relevant case on this issue. In that case, law
enforcement agents placed unmanned, motion-activated sur-
veillance cameras onto land in a national forest in order to
monitor a patch of marijuana plants. The agents used the foot-
age from the cameras in order to identify and track down the
defendants in the case. The court held that the placement of
the cameras on public land, open to all, did not violate the
defendants’ Fourth Amendment rights. Id. at 1125-26.

   While McIver involved public land and this case involves
private land, the effect is still the same: just as one would not
have a reasonable expectation of privacy in a national forest,
the foregoing cases demonstrate that Vankesteren had no rea-
sonable expectation of privacy in the open fields where he
killed the hawks. Those fields were located a mile or more
from his home, near a public road, and as evidenced by the
phone call reporting the trap, the land was accessible to other
8                  UNITED STATES v. VANKESTEREN
members of the public. Vankesteren notes that he felt com-
fortable enough to relieve himself there, but that is of no con-
sequence under our jurisprudence.1

   The idea of a video camera constantly recording activities
on one’s property is undoubtedly unsettling to some. Individ-
uals might engage in any number of intimate activities on
their wooded property or open field—from romantic trysts
under a moonlit sky to relieving oneself, as in Mr. Vank-
esteren’s case—and do so under the belief that they are not
being observed. But the protection of the Fourth Amendment
is not predicated upon these subjective beliefs. "[O]pen fields
do not provide the setting for those intimate activities that the
Amendment is intended to shelter from government interfer-
ence or surveillance." Oliver, 466 U.S. at 179. Anyone could
have walked onto Vankesteren’s property, including a VDGIF
agent, and observed his traps. Under our jurisprudence,
VDGIF could have stationed agents to surveil Vankesteren’s
property twenty-four hours a day. See id. at 178-81; McIver,
186 F.3d at 1125. That the agents chose to use a more
resource-efficient surveillance method does not change our
Fourth Amendment analysis.

   Since Vankesteren had no legitimate expectation of pri-
vacy, the agents were free, as on public land, to use video sur-
veillance to capture what any passerby would have been able
to observe. As the Supreme Court noted in Dow Chemical Co.
v. United States, 476 U.S. 227, 238 (1986), when it was
assessing the constitutionality of aerial surveillance by the
EPA:

        It may well be, as the Government concedes, that
        surveillance of private property by using highly
        sophisticated surveillance equipment not generally
    1
    Indeed, if Fourth Amendment protection were to be predicated upon
where one felt comfortable enough to eliminate, our search and seizure
jurisprudence would be turned on its head.
                  UNITED STATES v. VANKESTEREN                  9
      available to the public, such as satellite technology,
      might be constitutionally proscribed absent a war-
      rant. . . . [But t]he mere fact that human vision is
      enhanced somewhat, at least to the degree here, does
      not give rise to constitutional problems.

(internal footnote omitted). Likewise, the placement of a
video camera in an open field does not portend the arrival of
the Orwellian state that the appellant would have us fear. We
are not dealing in this case with a camera that took, for
instance, thermal images of Vankesteren’s home2 or that was
equipped with an automatic guidance system that allowed it
to roam about Vankesteren’s property, possibly into protected
Fourth Amendment areas. Instead, this camera was in a fixed
location, was focused on a limited area of Vankesteren’s
fields, was activated only by motion, and recorded only dur-
ing the daylight hours. Essentially, the camera did little more
than the agents themselves could have physically done, and its
use was therefore not unconstitutional.

                                  B.

   Vankesteren makes an additional argument that the govern-
ment failed to prove that he killed a red-tailed hawk on Janu-
ary 17. In support of this proposition, he notes that Agent
Garvis thought the bird killed on that day could have been a
red-tailed hawk, a broadwing hawk, or a red-shouldered
hawk. Yet, given that we must construe the evidence in the
light most favorable to the government, that Agent Garvis dis-
covered two red-tailed hawks at the killing site, and that
Vankesteren actually admitted to killing the two hawks, the
district court’s decision was not in error, let alone clear error.
  2
   See Kyllo v. United States, 533 U.S. 27 (2001).
10             UNITED STATES v. VANKESTEREN
                            III.

   We hereby reject each of the appellant’s contentions and
affirm the decision of the district court in full.

                                               AFFIRMED