Agency Use of Video Surveillance without a Warrant is Permissible

Here’s an interesting case regarding agency enforcement and the use of modern surveillance technology: namely, a hidden, fixed-range, motion-activated video camera placed in the appellant’s open fields, without a warrant.

Mr. Vankesteren owned a farm in Virginia. Someone reported that traps set by Vankesteren in a field on his farm, trapped foul that was protected under the Migratory Bird Treaty Act. Based on the complaint, the Virginia Department of Game and Inland Fisheries ("VDGIF") installed, without a warrant, video surveillance on Mr. Vankesteren’s farm. He was subsequently caught on tape killing a trapped protected bird—a red-tailed hawk. The lower court ruled in VDGIF’s favor and Vankesteren appealed to the U.S. Court of Appeals for the 4th Circuit

On appeal, Vankesteren conceded in oral argument that the VDGIF placed its camera in a constitutionally unprotected open field. The Court found the following facts relevant in its analysis of the open fields exception to the 4th Amendment:

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 [i.e., area immediately surrounding the home], and Vankesteren has no reasonable expectation of privacy in those open fields.

However, Vankesteren argued that hidden surveillance cameras are subject to a higher degree of 4th Amendment scrutiny. On this point, the Court opined as follows:

The idea of a video camera constantly recording activities on one’s property is undoubtedly unsettling to some. Individuals 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. Vankesteren’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 interference or surveillance." 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. That the agents chose to use a more resource-efficient surveillance method does not change our Fourth Amendment analysis.

(Citations omitted.)

Given the public’s concern over an Orwellian slippery slope, the Court was careful to point out the narrow facts of this case, which were:

[T]his camera was in a fixed location, was focused on a limited area of Vankesteren’s fields, was activated only by motion, and recorded only during the daylight hours. Essentially, the camera did little more than the agents themselves could have physically done, and its use was therefore notunconstitutional.

Consequently, the Court held that since "Vankesteren had no legitimate expectation of privacy, the agents were free, as on public land, to use video surveillance to capture what any passerby would have been able to observe."

Case Link: U.S.A. v. Vankesteren, No. 084110p, slip op., (4th Cir. Jan. 8, 2009).