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 & BROCCOLETTI, Norfolk, Virginia, for Appellant. Dee Mullarkey Sterling, OFFICE OF THE UNITED STATES ATTORNEY,

Norfolk, Virginia, for Appellee. ON BRIEF: Chuck Rosen-
berg, United States Attorney, Alexandria, Virginia, for Appellee.

OPINION

GREGORY, Circuit Judge:

The appellant in this case, Steve Vankesteren, invites us to

consider the application of the Fourth Amendment to a product 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

2 UNITED STATES v. VANKESTEREN
special operations agents installed the camera without a warrant.

On January 24, 2007, Special Operations Agent Gene

Agnese notified Garvis that he had obtained surveillance footage of two birds being trapped and killed at the site of the

camera. Vankesteren killed the first bird on January 17. Garvis could not identify the bird in the footage with certainty,

but he narrowed the possibilities to a red-tailed hawk, broadwing 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 processing fee. Vankesteren appealed the magistrate judge’s ruling, but the district court found no error and entered a final

judgment against him on December 21, 2007. Vankesteren

subsequently appealed to this Court.

UNITED STATES v. VANKESTEREN 3
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 Government." 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, revenue 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 considered 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 Trespassing" 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 defendant’s residence and the neighboring house into the woods

until they saw two marijuana patches surrounded by chicken

4 UNITED STATES v. VANKESTEREN
wire. Upholding both searches, the Court held that "an individual may not legitimately demand privacy for activities conducted 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 example . . . a thickly wooded area nonetheless may be an open

field as that term is used in construing the Fourth Amendment." 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, crossing 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

UNITED STATES v. VANKESTEREN 5
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 observation by people passing by." Id. at 301; accord United States

v. Breza, 308 F.3d 430, 435 (4th Cir. 2002). Applying the factors, 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 people out. Dunn, 480 U.S. at 302-03.

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.

As noted previously, Vankesteren has essentially conceded

this point. Vankesteren instead stakes his case on the argument that hidden surveillance cameras are subject to a higher

degree of Fourth Amendment scrutiny. He cites cases in support 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. Videotaping of suspects in public places, such as banks, does not

6 UNITED STATES v. VANKESTEREN
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 expectation 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 surveillance cameras onto land in a national forest in order to

monitor a patch of marijuana plants. The agents used the footage 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 reasonable 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

UNITED STATES v. VANKESTEREN 7
members of the public. Vankesteren notes that he felt comfortable enough to relieve himself there, but that is of no consequence under our jurisprudence.1

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." 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 privacy, the agents were free, as on public land, to use video surveillance 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. 

8 UNITED STATES v. VANKESTEREN
available to the public, such as satellite technology,

might be constitutionally proscribed absent a warrant. . . . [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 during 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 government failed to prove that he killed a red-tailed hawk on January 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 discovered 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). 

UNITED STATES v. VANKESTEREN 9
III.

We hereby reject each of the appellant’s contentions and

affirm the decision of the district court in full.

AFFIRMED

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