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[bobf <bobford79 AT yahoo.com>]

The story is not about the chickenhawks, it is about the 4th ammendment -- a 
Constitutional privacy-- and , further, privacy in general. (there is a 
slideshow at the link).  Incidentally, when a neighboring farmer, in my 
youth, shot at chickenhawks--legally-- I always pulled for the hawks.

 This takes place in Virginia.  I guarantee you I could find the street in 
Richmond where human flesh and violence are being peddled, but this is how 
the government chooses to use its law enforcement resources............

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Camera convicted him but raised battle over privacy


By Tim McGlone

The Virginian-Pilot
© February 15, 2009 
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 AT pilotonline.com




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