4th Circuit Holds US Can Use Video Obtained From Warrantless Hidden Video Cameras Placed on Owner's Private Property
January 8, 2009. The U.S. Court of Appeals (4thCir) issued its opinion [10 pages in PDF] in USA v. Vankesteren, a criminal case regarding application of the 4th Amendment to hidden, outdoor, motion activated video cameras, placed on private property owned by the person asserting 4th Amendment rights.
Summary. The Court of Appeals affirmed the District Court's denial of Vankesteren's motion to suppress, and his conviction, citing the "open fields" exception to the 4th Amendment.
The open fields exception, announced in by the Supreme Court in its 1926 opinion in Hester v. United States, 265 U.S. 57, pertains to eye witness observations by visiting police officers, not secret placement of video cameras. The present case constitutes an significant expansion of the open fields doctrine, and a diminution of 4th Amendment protection.
This case represents another example of law enforcement agencies' successful assertion that the use of new information or communications technologies, by people or by government surveilers, reduces traditional 4th Amendment privacy rights.
The Court of Appeals asserted that this opinion "does not portend the arrival of the Orwellian state".
District Court. The U.S. criminally prosecuted Steve Vankesteren in the U.S. District Court (EDVa) for taking a migratory bird without a permit, in violation of 16 U.S.C. § 703 and 50 C.F.R. § 21.11. The U.S. accused him of killing two hawks.
Vankesteren is a farmer with an interest in removing certain predators. The evidence against Vankesteren came from a motion activated video camera, secretly placed on Vankesteren's property by Virginia law enforcement officers, without notice, consent or a warrant.
Vankesteren moved to suppress the video evidence as violative of his 4th Amendment rights. The District Court denied the motion, and convicted Vankesteren.
Court of Appeals. Vankesteren brought the present appeal.
The 4th Amendment provides in full that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The Court of Appeals affirmed, citing the "open fields" exception to the 4th Amendment's warrant requirement.
In addition to the seminal case, Hester v. US, the Court of Appeals relied on two more recent open fields exception cases: Oliver v. US, 466 U.S. 170 (1984) and US v. Dunn, 480 U.S. 294 (1987).
The Court of Appeals wrote that "Given the facts of these Supreme Court decisions, Vankesteren 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 Vankesteren has no reasonable expectation of privacy in those open fields."
None of these cases, however, involved cameras. All involved in person observations by law enforcement officers.
The Court of Appeals cited opinions and hypotheticals involving camera surveillance, but all of these involved public places such as banks, or public lands such as national forests.
The Court of Appeals equated privately owned open lands to public lands for 4th Amendment analysis. It concluded that "Since Vankesteren had no legitimate expectation of privacy, the agents were free, as on public land, to use video surveillance".
TLJ Commentary. This opinion fails to identify the fundamental differences between eye witness observation and hidden video cameras. In person visits are of short duration. If police remain, their detection becomes probable, and owners can exercise their ownership rights to eject them, until they obtain a search warrant. Cameras can be installed surreptitiously, and operate for long duration. Cameras also collect more detailed information, and can observe things at greater distances. Also, images and video collected by hidden cameras are more susceptible to theft or misuse by third parties.
It may also be pertinent that in the present case, and in the open fields cases relied upon by the Court of Appeals, the government law enforcement objectives were relatively minor (such as catching small time moonshiners, marijuana growers, and bird trapping farmers), rather than major (such as preventing terrorist attacks).
Perhaps it should also be noted that in one recent 4th Amendment case involving use of new search and seizure technologies, the Supreme Court interpreted the 4th Amendment in a manner that maintained protection of 4th Amendment rights.
The Supreme Court held in its 2001 opinion in Kyllo v. United States, 533 U.S. 27, that the thermal imaging of a home to detect lamps used for growing marijuana constitutes a search within the meaning of the Fourth Amendment. See also, story titled "Supreme Court Opines on Searches" in TLJ Daily E-Mail Alert No. 206, June 12, 2001.
That was a 5-4 opinion. But, the Court did not break down along ideological lines. It divided generationally. Scalia wrote the opinion, and was joined by Thomas, Souter, Ginsburg and Breyer. The older members the Court, Rehnquist, O'Connor, Stevens, and Kennedy, dissented. The five members of the majority remain. Rehnquist and O'Connor are gone.
This case is U.S.A. v. Steve Vankesteren, U.S. Court of Appeals for
the 4th Circuit, App. Ct. No. 08-4110, an appeal from the U.S. District Court
for the Eastern District of Virginia, at Norfolk, D.C. No. 2:07-cr-00153-RBS-1,
Judge Rebecca Smith presiding. Judge Gregory wrote the opinion of the Court of
Appeals, in which Judges Motz and Shedd joined.