Camera convicted him but raised battle over privacy

By Tim McGlone
The Virginian-Pilot
© February 15, 2009

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."

http://hamptonroads.com/2009/02/camera-convicted-him-raised-battle-over-...