Illegal photography's perfectly OK when the government wishes to engage in it, apparently

They may not want us taking their picture (however legal and protected that activity is), but the Federal Government, along with their compadres at the Virginia Department of Game and Inland Fisheries, doesn't seem to have any problems with trespassing onto private land (without a warrant or any evidence of criminal activity whatsoever) in order to set up a videocamera to catch alleged law-breaking.

The subject being filmed in this case was farmer Steve VanKesteren, who was convicted of killing two hawks that he had found in traps he had set out in order to catch non-protected birds which had been eating his crops. He claims that they were too injured to recover, and that he ended their suffering.

Regardless of the debatable merits of the government's case or whether one believes that VanKesteren was indeed wrong in dispatching the birds, the way the evidence used to convict him was acquired is not in dispute (my comments in bold):

"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 [without a warrant] and found a cage trap, about 2 feet high, with two caught pigeons. Pigeons are not protected birds. [So no evidence of criminal activity was found]

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." [Again, without obtaining a warrant]

The remote surveillance continued for 21 straight days, until investigators obtained what they felt was evidence of wrongdoing. As the initial judge in the case wondered to the prosecutors:

"'Assuming that you are right in that regard, can you still go onto somebody's private property and install a video camera?' [U.S. District Judge Rebecca B.] Smith asked. 'So we are just going to keep it rolling for 24 hours to see if we find something?'"

In other words, a "fishing" expedition, if one will pardon the pun. The admission from the government that they indeed felt that this sort of action was legal and proper didn't help VanKesteren, though. Judge Smith still ruled against him.

The 4th U.S. Circuit Court of Appeals has denied VanKesteren's claim that his Fourth Amendment rights were violated during the investigation. He is currently considering appealing to the Supreme Court, but his finances may make that course of action impossible.

This is outrageous behavior on the part of our government, and hopefully publicity of the case will allow VanKesteren to obtain the necessary funds for the further appeal of his conviction on the crystal-clear grounds that his privacy rights were indeed blatantly violated by the fish and game people.