ONANCOCK
Farmers beware: Big Brother may be watching.
Eastern Shore soybean farmer Steve Van- Kesteren learned that the hard way when he was charged with taking two red-tailed hawks, a violation of the federal Migratory Bird Act.
The evidence against him was a video recording showing him dispatching the birds with an ax.
Game wardens had put a hidden camera in a tree, pointed at VanKesteren's soybean fields, after receiving a complaint about protected birds getting caught in predator traps. The wardens had to walk or drive off a road, past a hedgerow, and travel about a quarter mile through one field and past a second hedgerow. VanKesteren said it appears they cut a swath through some brush to get to the tree.
VanKesteren took his case to the second-highest court in the nation, arguing his Fourth Amendment right to be free from unreasonable searches was violated.
While sympathetic, and even concerned about the video intrusion, two federal judges ruled against him, and a panel at the 4th U.S. Circuit Court of Appeals denied his appeal.
"I don't like the installation of a video camera on somebody's property," U.S. District Judge Rebecca B. Smith said during VanKesteren's appeal of the magistrate judge ruling finding him guilty.
"I don't think they can manage my farm from up in Richmond or Washington, D.C., where they come from," he said during a stroll through his fields last week.
"I think I can do a better job than they can," he said.
VanKesteren, 61, is semiretired but still farms much of his 500 acres around his Poplar Cove Road home in Onancock. He tends leased farmland as well, growing wheat and corn as well as soybeans.
He's lived in the same 18th-century house overlooking Onancock Creek his entire life. His father farmed the same lands, growing mainly spinach until he got fed up with Canada geese eating too much of the crop.
In his spare time, Van-Kesteren fishes, hunts and plants grasses, shrubs and trees in an ongoing conservation effort. He said he'd never been in trouble with game wardens before.
He'd been having a particular problem with foxes eating his crops, so he set up cage traps in several spots next to his fields.
In late 2006, someone - VanKesteren doesn't know who - called the Virginia Department of Game and Inland Fisheries to report seeing a protected bird caught in a trap on VanKesteren's farmland.
A game warden, technically called a conservation police officer, went to the site and found a cage trap, about 2 feet high, with two caught pigeons. Pigeons are not protected birds.
In January 2007, the officer and special operations agents returned to the farmland, off Acorn Road with no homes in sight, and set up a hidden video camera.
The officers had to walk at least 400 yards across one field to get to a hedgerow where VanKesteren had set some traps. The area where the traps were set isn't visible from the road.
The camera was on for 21 days.
VanKesteren was recorded taking two red-tailed hawks, also known as chickenhawks, from the trap and whacking each in the head with an ax. VanKesteren admits he did it and says he had no choice.
"I didn't want to let them suffer," he said. "When you put a trap out you can catch just about anything."
He said when it was legal years ago to kill hawks he wouldn't do it because they benefit farmers by eating small rodents.
At one point in the video, VanKesteren walks right toward the camera, which was tied to a tree. He said he was probably a foot away and never noticed.
When confronted with the video by state and federal agents, VanKesteren said he caught the hawks inadvertently. He said it was an honest mistake and that he should have taken the birds to a veterinarian or obtained a permit to kill them, which he had done in previous years. (He said he gave up with permits because the bureaucracy became too complicated.)
"The defendant showed no remorse for the killings and asked the agents several times to drop the matter," federal prosecutor Dee Sterling wrote in a court brief, quoting from the earlier testimony of the agents.
An agent testified that the Virginia Department of Game and Inland Fisheries regularly uses surveillance cameras when investigating suspicious activity.
"With only five special agents in the Commonwealth of Virginia, it was extremely impractical to conduct live surveillance," Sterling wrote.
VanKesteren fought the case, initially on his own. He argued before a U.S. magistrate judge in Norfolk that the game wardens violated his constitutional rights against unlawful searches by entering his private property and videotaping his activities.
He wondered what would have happened if he 'd been caught on tape urinating near his field. Would he be charged with indecent exposure? What if he were having a romantic interlude in his fields?
After losing at the magistrate level and being ordered to pay a $1,000 fine, VanKesteren hired an attorney and appealed to Smith, the district court judge.
"As noted by other courts, hidden video surveillance invokes images of the 'Orwellian state' and is regarded by society as more egregious than other kinds of intrusions," James Broccoletti, Smith's attorney, wrote in his appeal.
Broccoletti argued the case before Smith in December 2007.
"We have not found any reported cases dealing with the installation of a video camera on private property," he told the judge.
"In open field cases, law enforcement officers are entitled to, and regularly do, go upon private property to conduct their investigations," Sterling responded. "No warrant is required, period."
Judge Smith, though, was clearly concerned.
"Assuming that you are right in that regard, can you still go onto somebody's private property and install a video camera?" Smith asked. "So we are just going to keep it rolling for 24 hours to see if we find something?"
If the camera were on a public street, there wouldn't be any problem, the judge said.
"The concern here is not the walking on, so much as the installation of a continuous running video camera," she said.
In the end, however, she ruled against VanKesteren, citing case law dating back to the 1920s that allows surveillance of open fields without a warrant.
Broccoletti took the case to the 4th U.S. Circuit Court of Appeals in December but lost there too. The court, however, noted its concern as well.
"The idea of a video camera constantly recording activities on one's property is undoubtedly unsettling to some," the court wrote in its ruling issued last month.
"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," the court continued. "But the protection of the Fourth Amendment is not predicated upon these subjective beliefs."
The Virginia Department of Game and Inland Fisheries defended its use of cameras, stating that it is a common practice in any law enforcement agency.
"I would say law enforcement agencies have used cameras for as long as cameras have been around," said Julia Dixon, media relations coordinator for the agency.
"A lot of this investigative work is done in remote rural areas. It's a tool to help us gather information," she said, adding that she could not recall anyone challenging the practice.
"In general, usually when we have someone who's been charged, that's a very compelling piece of evidence to have. At that point they're not disputing the video," she said.
VanKesteren is considering appealing to the U.S. Supreme Court, but that is an expensive venture.
In the meantime, he has removed the cage traps but has a number of foot traps set out to catch foxes and other predators. Birds cannot get caught in them.
"I'll tell you, this opened my eyes about how the government works," VanKesteren said.
He wondered what Thomas Jefferson and George Washington would think.
"What if those people had come to them and said, 'We're going to put you in prison for killing a chickenhawk'? " he asked. "I think they would have started another revolution."
Tim McGlone, (757) 446-2343, tim.mcglone@pilotonline.com
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Did you even read what I wrote?
-> Does that mean if they video a Bank Robber,they can't use it in court?
No. When you enter a bank, it is clearly marked that security cameras are in use. Besides, all the bank employees know they are being recorded.
-> How about in some states when they video you running a red light,do they throw it out of court?
Only if those cases actually go to court. The majority of them don't. You get sent the picture, you pay the fee and you waive your right to due process. Besides, most red-light camera intersections and photo-radar operations are clearly marked.
-> Or when you get caught shoplifting?
See the 'bank robbery' reply
-> Or the video in the Police car when they stop a Drunk Driver,do they throw that out of court to?
The video usually includes the Police Officer, whose cruiser is doing the recording. That officer knows that the incident is being recorded. Sometimes they'll even tell the suspect. Either way, the breathalizer, blood test and admission of guilt is usually sufficient to take the case to court and the tape is only used in defense of accusations against the police.
Did you even read what I wrote?
-> Does that mean if they video a Bank Robber,they can't use it in court?
No. When you enter a bank, it is clearly marked that security cameras are in use. Besides, all the bank employees know they are being recorded.
-> How about in some states when they video you running a red light,do they throw it out of court?
Only if those cases actually go to court. The majority of them don't. You get sent the picture, you pay the fee and you waive your right to due process. Besides, most red-light camera intersections and photo-radar operations are clearly marked.
-> Or when you get caught shoplifting?
See the 'bank robbery' reply
-> Or the video in the Police car when they stop a Drunk Driver,do they throw that out of court to?
The video usually includes the Police Officer, whose cruiser is doing the recording. That officer knows that the incident is being recorded. Sometimes they'll even tell the suspect. Either way, the breathalizer, blood test and admission of guilt is usually sufficient to take the case to court and the tape is only used in defense of accusations against the police.
Madison lives! Have you seen him lately?
These discussions are not fruitful when on every turn James Madison and King George are injected into the fray… To ensure we remain fixated on the past and generalize about the legal apparatus, we will attach historical figures to frivolous explanations about personal beliefs (opinions) on how the Supreme Court interprets the law. If the discussion is based on fact (supported evidence) that are supported by SCOTUS rulings, it’s fair to at least have some creditability and state the elements and facts of the case first, before providing an unsupported opinion. After all, it’s not a crime for placing opinions above facts. After all, the framers relied heavily on opinions (cynicism implied).
Overlord_644
Oh so SCOTUS is saying that "it is really green" when the law says it is red? That is in reality what is going on. I don't believe that SCOTUS goes back and reviews what the framers "really" intended. They find some way to justify (this case in point) searches without a warrant because it is inconvenient and that even though "disturbing" they go along with it anyway. Sure.....Conventional and simple minded - Spare me this rubbish sir. That's like holding court and recording the proceedings in the Icelandic language. "If only you understood" I truly believe that if James Madison was come back from the dead today he would agree with me and he would be back at war. This is bascially the same type of things King George did in his time. Patronizing indeed.
civics 101 and constituional law
The “plain English” and cynical application of the 4th amendment... The breadth of the U.S. Supreme Court’s rulings cannot be deduced to what one thinks the document says or doesn’t say. Consulting a constitutional law library will enlighten the conventional and simple attitudes that are purported about the framers intent about the document and its protection of citizens. The Supreme Court’s interpretation of the law is executed by issuing rulings and opinions. Research first, before patronizing Mr. Madison and his crops. United States v. Dunn, 480 U.S. 294 (1987), is a U.S. Supreme Court decision relating to the open fields doctrine LIMITING the Fourth Amendment of the U.S. Constitution.
Jack63 Sources?
Jack63,would you be so kind as to post the sources for all that information you posted? Thanks
"video recording isn't admissable in court"
Thanatos quote:
"What's on a video recording isn't admissable in court unless someone in the recording know they're being recorded. The guy got busted because he admitted to doing it."
Comment:
Thanatos,Does that mean if they video a Bank Robber,they can't use it in court?
How about in some states when they video you running a red light,do they throw it out of court?
Or when you get caught shoplifting?
Or the video in the Police car when they stop a Drunk Driver,do they throw that out of court to?
Why coventry67?
Submitted by coventry67 on Sun, 02/15/2009 at 12:55 pm.
kill the birds may have been wrong, but so was the surviellance
Why?
"inconvienent".
"inconvienent".
Overlord_644
Amendment IV
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.
I think it IS OUTRAGEOUS. The 4th is written in plain English. Game Wardens just like police officers ARE GOVERNMENT representatives. One shouldn't have more power to usurp the law anymore that another. Especially since it was too inconvenient for them to ask for a search warrant. The U.S. Constitution and The Ten Amendments define what powers we the People give government. These people were on his property without a warrant going on an Easter Egg hunt. I can't imagine that James Madison would think that he could not walk on his property, tend his crops and believe he could go to jail by Game Wardens planting a camera on HIS property without probable cause or a warrant. Wouldn't his crops be considered his effects? Either the document means what it says or it doesn't. I don't see where there can be ANY exception. Especially because it is "
Opinions
keith,
The best method to define curtilage would be to consult a legal manual or a website like the one Cornell law maintains. It's one thing to state something is outrageous in an unsupported opinion, and it's quite another to support it by elements and facts that upheld by Supreme Court rulings.
New Point
I had an issue with a John boat title years ago and had the boat confiscated by Game Wardens. Thinking this was unfair and hoping to recover my property without hiring expensive legal help, I researched the law at the library. I found that Game Wardens can search and sieze any property they believe is evidence in a crime investigation and then go back to a judge and get a warrant after the fact. Needless to say, I let the matter drop and chalked up the boat to experience. Game Wardens have to be the most powerful Law Enforcement people in Virginia. Let me just add that I know some Game Wardens and respect the danger they face, particularly during Hunting season, but no government official should have that kind of power.
"The Game Wardens did not
"The Game Wardens did not break the law by setting the camera in the open fields of this man's farm. It is illegal to place a camera in someone's curtailage (i.e. the immediate area around a home, but not in the open fields. He has no expectation of privacy in his farm fields this has been up held by the Supreme Court of the U.S."
So what defines curtailage? 50 ft. around the home? 100 ft? This is outrageous. If the SCOTUS ruled this was legal then it should be revisited and overturned. Even SCOTUS seem to find reasons that our U. S. Constitution doesn't mean what it says. Sad state of affairs. I still hope he appeals.
Wardens Did not Break the Law
The Game Wardens did not break the law by setting the camera in the open fields of this man's farm. It is illegal to place a camera in someone's curtailage (i.e. the immediate area around a home, but not in the open fields. He has no expectation of privacy in his farm fields this has been up held by the Supreme Court of the U.S.
Evan
Evan states "The problem with a warrant is you have to say specifically what you're looking for and notify the owner the search is taking place. Only then can you collect evidence that is not in plain site, and you can only look in places that are reasonable for what's listed on the warrant."
Ok Evan....SO.. What's the problem with that? So it's too much trouble for them to ask a judge for a search warrant? The Game Wardens had a complaint. So they go to the judge and convince him that a search warrant is necessary. So we should just say tough cheese and let LEO's do whatever they please as long as the end justifies the means. As I understand it, they weren't standing on the edge of the property looking in. They tresspassed on the property. It appears that the public at large should abide by the rules, but LEO'sshouldn't have to because it's too much trouble. You obviously have no sense of freedom at all sir.
Hey, Bro, look at this! (LOL)
To all those bleeding hearts for the dead chicken hawks, I ask you, “Have you ever taken a leak or dump outside? How about sex outside? Does the game warden have a right to know why your son and his girlfriend like hiking back there? And what if the camera is stolen before the warden gets back? The next thing you know, there you are--your diarrhea cycling through cyberspace. And if you don’t own a farm, don't forget that the same legal precedent could apply to your fenced up yard. Have any jealous or vengeful neighbors?
In responce to Nancyg's
In responce to Nancyg's comment, no it is not right for him to break the law and kill these birds. However, it is not right for you, Obama, Joe Blow, and their cousins to ever set foot on my property and install a video camera. They are trespassing.
The wardens should have found another to catch this man. But you cant come on my property in my yard and place your video camera no matter who you are. If I found your video camera and I break it- are you going to make me pay for it? Good luck.
Its not ok for you, me to break the law, so why is it ok for these wardens to it.
hawks vs the damned
Since this demon is homocidal, Nothing more should be done to preserve it.
In fact, some suspicion must be carried forward until it is gone entirely. SO glad they knew it.
Big Brother's... not anymore
I personally believe that Government should not be spying on the private lives of its citizens without cause. And that begin at the property line. For any law enforcement search warrants should be obtained. (And not on an anonymous tip as this case.)
If anyone or any organization leaves a camera on someone's private property without permission... it's forfeit to the property owner.
Target practice, eBay, or land fill... their land, their choice.
A violation of our rights that is not fully understood by courts
Placing a camera on someone's person properly without a warrant is a violation of our fourth amendment rights and if the Game Warden felt that cameras were needed for proper search and seizure than they should have received a court order/warrant to perform such searches. The problem we have is that most of the judges that have been placed in this high office know little about the constitution and base their decisions on their own beliefs. I must believe that the Supreme Court would blow these lower court decisions out of the water. The problem, it will cost the defendant a tremendous amount of money for proper justice.
We live in a country where our freedom is being slowly taken away. If we don't fight for our rights we might as well join the communist party. Our press finds people guilty before trial and our courts fall victim to public opinion.
Next time the farmers should hunt for the cameras and use them for target practice.