the actions of some agents for the tennessee wildlife resources agency who placed cameras still cameras on multiple properties of mr spann and had him under constant surveillance problem and one can sympathize with your clients being upset having these agents crawling all over his property putting cameras i mean i understand that the problem would seem to be that  strong courts fourth amendment cases make a distinction between curtilage in open fields and curtilage kind of your yard the area around a dwelling  outside you have an expectation of privacy privacy there and this is really trespass theory fourth amendment law as opposed to privacy based  so you can have somebody come on the curtilage and you know search something or gain information there that they would be able to just see if they need a search warrant to go on your curtilage but the i mean the court cases most recently jones justice scalia writing about a trespass theory said there is no fourth amendment protection for open fields people don't hunt turkeys how the surveillance was conducted in each of these cases you head agents who either through eighteen to or some other way they placed cameras that only gave the ability to observe what an officer could have the other was and so in the i believe it is the in those cases you're talking about yes start again though the problem is the court just says you don't have any fourth amendment protection period in open fields well isn't any so if this these cameras were placed in open fields which is where the hunting was going on  then there is no fourth amendment protection period and it doesn't seem like your complaint would give the district court any reason to think that where this turkey hunting is going on presumably with a twelve gauge shotgun and full choke where that's going on is curtilage rather than open fields it was facially obviously seem to be open fields in the complaint doesn't give us any reason to think otherwise and so i'm kind i do understand why i'm not familiar with that i mean you talk about researching someone's person well in this instance your honor this is distinguishable because this mr spann at three properties these agents trespass on his property they placed multiple cameras that were on constant surveillance so if you look at the scenario like injunctions that had to do with the g p s your constant that same idea is a political hero and jones was about all the information that is revealed by your movements that's not this case i understand with respect to it is a different technology but mr spann respectless miss that we should have he said have an expectation of privacy on his own property that is not and there's no proof in the record that any of these locations were visible from another property from road i guess i'm from any other yeah ok i mean now relax i mean i'm just telling you the fourth amendment doesn't protect open fields doesn't matter if people can see and doesn't matter if he had an expectation of proper privacy  feels is my understanding of the law well and your honor in with respect to the recent cases such as the one that the state cited again not how smith but there's a distinction because when you when you read the cases that deal with open field almost always it's a scenario in which the law enforcement agent uses either a public utility or places cameras that are off the property where that's understandable in open fields but in this case yes things because these cameras were placed in multiple play and that's it that's a thoughtful argument i mean go ahead so the cameras you're saying somebody ent the language of each of these cases they they all deal with how the surveillance was conducted and and almost all the cases whether it be and so if they're driving down the road and they're looking i mean obviously you know that would be nice but progress that would be more like plain view that open fields these days it's basically the same doctor i think yes you know i mean the way the the cases that that deal with open fields are they all have to do with obtaining surveillance through a position that they could have had even if an officer  locations without breaking the law for a continuous period of time i guess ok i think we've got that part of the argument how did this all get started i mean you say your client harvest that he had a lease on he bought a license what was the federal violation is a lacie violation because he hunted under the wrong life what was wrong license it was a license in in kansas he was supposed to have farmed the property not just had a lease had not formed and they chased him for that house they taste it for that and then from there that's how this really brought it across state lines he brought across   folks on the other side to affirm the district court one based on playing its own admitted complaints paragraph thirty one the cameras were placed on farms there's no mention of homework or diligent there for the fourth and then it is not implicated to the feb twenty one two thousand and fourteen or it was for non fleeting items and was based on information only eight months old which is well within the timeframes that this circuit has allowed for gone drug related crimes and three plaintiffs failed to properly plead or allege necessary prerequisites for a fit the minute taking claim the video surveillance the plaintiff farms where he conducts his televised and much photographed hans did not violate the fourth amendment so it's i mean it's just the way it works down in tennessee they just go on people's property and start setting up cameras if they want to see what you're doing i mean i'll say this i understand everything you just said that said it seems like these agents went totally overboard i mean they're pursuing this guy they're arresting his son they're harassing his wife their tent you know they're ransacking his house on a search i mean is this kind of standard operation for how we investigate you know somebody didn't have the right license in kansas no you're there were there certain circumstances here without going outside the record ok circumstances that that seems like this explosion of law enforcement activity highly intrusive maybe not constitutionally for bad you know based on what he  and in this case his farms which are well televised and exposed to the public i mean if you're not saying that somebody could see this area is standing outside the property are you and not necessarily  but that does not matter and us versus oliver there that was a case in which officers did go past a no trespassing sign and entered the field that was of issue and event court which is the seminal case on open fields doctor and the court found that there was no fourth amendment violation because an open field is not protected an open field is a bit of a misnomer it just means an area that is not within the home or of the curtilage it is it can be a a forest it could be an open field it can be a farm is just not go onto the property and installed cameras without permission and they did trespass the court there found there was no fourth amendment but a violation was the area is protected not because it's exposed to other people right and that's th that he calls in his forms in the district court case if they are properties to which he either owns or has hunting rights so it's kind of unclear but we're just sticking with the complaint he calls them  forms the february twenty first two thousand and fourteen search was proper not based on still probably because of note the search warrant was issued one day after plaintiff had already been a died for evidence tampering and other crimes which were related to the items that the defendants were looking at were wanted to find the search warrant is twenty three pages long and contains a detailed account of the supporting facts plain it does not take issue with those supporting facts only takes issue with the timing of the facts which was eight months prior and we see drug the phone and again we're getting outside the record i don't necessarily want to that but they did track the phone while he was in his possession using cell towers which we know for us first runner sided we know that's proper plane it's only cited case for not the case with documents computers and cell phones that kind of thing and in fact outside the context of drug crimes this runner was pointing out time periods allowed are very generous and the eight months is well within that time frame and addition there' law is clear is claiming basing his claim on two allegations in his aminta complaint paragraph thirty four where he claims that jason dotson's home was was raided and items were seized interestingly in that paragraph it's not clear whether the items seized or actually belonged to the plaintiffs that's not clear and the other paragraph forty nine where plaintiff claims that some of his property was seized from jones taxidermy and in this paragraph he does typically claim the property as his that no where in either of these paragraphs or anywhere in the complaint this plaintiff asserts that there was a final agency decision or that he first attempted to seek compensation for the items taken before he filed this complaint is part of a month that is part of your into the fourth amendment context and there is no there are no allegations that would support a fourth amendment takings of my fourth amendment claims he did not i mean exhaustion stuff i mean if we're going through this step by step we would need to get there in your after the criminal case is over and as we will know the criminal case is still proceeding when we met we know that he just filed a motion for continuance for that but beyond that talk about the fourth amendment the plaintiff did not motion to dismiss that there was a final agency decision and that there is no procedure for seeking compensation and cites to twelve dash one dash two of two to say that there is no compensation procedure for where property seized as evidence  as a crime however twelve national invest two of two pertains to caesar's real property or improvements or real property and here what we have are seizures of or alleged seizures of personal items so that doesn't did sneak out past the family barn lots and managed to call in a large turkey and well yeah they come to you there so about fifty yards from the house i'm not going to get into the curses jar human it seems that the primary issues in this appeal really do stand between it's between the teeth of the ira and mr spann so in that line i'm going to try to keep things very brief clients a camera man former camera man of mr spann what kurt tell me again what he's wife's involved here again well there were originally three claims against against mr sutherland and i've been able to point out i think everybody agrees that after the june two thousand and thirteen testimony the probation r established of the lines that we have with regard to a private party you know acting under color of state law on the one hand you have this full on conspiracy between a private party and the government so such that the private party has in effect cloak clue themselves in state law i think is the terminology we use versus somebody merely reporting a crime or getting questioned by police and providing that information and you know on their face at least with regard to what we see in this complaint or the amended complaint you could say that there was some sort of acting but that's what we have judicial notice and that's why we have preclusion principles in this court he had the opportunity to put on not less than ten witnesses back at these probation revocation proceedings which had the exact same burden of proof on the state or on either party as what we saw in this district court and the district court in that case which we filed a copy in this case specifically said as to the two main points as to thomas hunting name i guess would be the phrase mr spanner plaintiff was the one who directed that the scratch he'd get put out it was his direction not the t w s that's where your client testified so  what was held in that final appealable order in kansas which was filed on record in this case as well as a trail cameras were placed out at the teed up by the t w r and that sudden had no involvement in that whatsoever those are the only two that remain not put the stuff out those those facts themselves were material to whether he violated the probation of the cameras yes absolutely well on this property to he was prohibited as a term of his probation from hunting anywhere in the united states for a period of six months right and drug cameras being placed out at the hunting sites by the t v our officials would i would think be part of probationary investigation the open fields inside this guy was under probation and you know i think we cited the once case where you don't even need a warrant if you've got a reasonable suspicion even enter on to somebody is proper into somebody's home much less place a trail camera i don't know if you were i  bring him up to date i do different question in deciding whether stand violated his probation what difference does would it have made it's if your client did or did not put the call it absolutely relevant but perhaps the materiality would be the ambiguous point with regard to this probation revocation proceedings ok nonetheless you know there's multiple points stated where the testimony on the record  as to who places cameras here or there and what not and you know this this is at the very least it was not a fact if you did and to manufacture something like allegations which directly contradict that order at this point down the road it appears to me to run more or less directly afoul of every type of occlusion principle that we operate under and the same thing is true with the with the scratch feed as well but at the same time i have already gone over i'm sorry yes you even if you know he was not that fluid from from developing those facts contradictory to the to the other district court order then that would necessarily entail he being held to be a state actor at which point i think we did in our brief he would be entitled to the same qualified immunity at the same time though i still briefly argue that his his expectations of privacy were severely reduced on his properties as a result of him being under probation just i don't  know what we're asking is recent about how can we do that we're talking supreme court doctrine here well by looking at when you look at it like us versus jones where it involves the constant surveillance and that was found to be well right in the same instance when you have even though it is open fields the distinction has been drawn in the because when the officers in all these cases whether the viper fighter sooner anderson bagwell when they put out these cameras the lines of these opinions is that it's to essentially do what an officer could have done anyway just like point of order you know the officers in the engine backs off had been driving along the road and they they got tired  their cars on the scene so they went to put up the camera on a utility pole with a team to see but this case is similar to jones because you have over two million photographs camps out there is a team that easy and that is that not his home for a period of time i mean as a home how do we define a home i mean so this is his land is for his use and the constant surveillance distinguishes this from any case that i've been able to find all the cases that your honour's have before you involve a single camera was put on put at some location that is sometimes it's  property seized during a criminal investigation is not cannot be the basis of a takings claim while that criminal proceeding is ongoing i agree it's properly take also but you're saying i know you think it's there's a fourth amendment violation with you know when they took the various things that are the subject of the takings claim but i mean that's a fourth amendment issue that's not a takings issue would you agree that to the extent it sees pursuant to a criminal investigation and proceedings ongoing that you don't have a takings claim as to those items only if it is if they are items that are taken that are relevant to the investigation what we have here is that when integrated they took things that had nothing to do with the investigat understand i mean you know you try my kids video games are being taken and so on and i understand your reaction to that but do you have a case that limits that says well if the items really aren't that important are somehow just sort of not material to the criminal investigation then you can bring a takings claim if you haven't gotten them back even though the proceedings ongoing you know ok i mean it's a  for regime where once i take property they're supposed to put you on notice so there's a whole procedure that we have with respect to forfeitures taking property but this falls in the middle