Appellate Case: 22-3276 Document: 010111018128 Date Filed: 03/19/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 19, 2024
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-3276
BRUCE L. HAY,
Defendant - Appellant.
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REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS; FIRST AMENDMENT COALITION; FREEDOM OF THE PRESS FOUNDATION; THE MEDIA INSTITUTE; NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION; THE NEWS LEADERS ASSOCIATON; NEWS/MEDIA ALLIANCE; RADIO TELEVISION DIGITAL NEWS ASSOCIATION; SOCIETY OF ENVIRONMENTAL JOURNALISTS,
Amici Curiae. _________________________________
Appeal from the United States District Court for the District of Kansas (D.C. No. 2:19-CR-20044-JAR-1) _________________________________
Rachel Tennell, Debevoise & Plimpton LLP, New York, New York (Benjamin Leb and Anagha Sundararajan, Debevoise & Plimpton LLP, New York, New York; David A. O’Neil, Debevoise & Plimpton LLP, Washington, D.C.; and Melody Brandon, Federal Public Defender, and Paige A. Nichols, Assistant Federal Public Defender, Kansas Appellate Case: 22-3276 Document: 010111018128 Date Filed: 03/19/2024 Page: 2
Federal Public Defender’s Office, Topeka, Kansas, with her on the briefs) for Defendant- Appellant.
Kevin J. Barber, United States Department of Justice, Criminal Division, Appellate Section, Washington, D.C. (Nicole M. Argentieri, Acting Assistant Attorney General, and Lisa H. Miller, Deputy Assistant Attorney General, United States Department of Justice, Criminal Division, Appellate Section, Washington, D.C.; and Kate E. Brubacher, United States Attorney, District of Kansas, and James A. Brown, Assistant United States Attorney, Appellate Chief, District of Kansas, Topeka, Kansas, with him on the brief) for Plaintiff-Appellee.
Brett Max Kaufman, American Civil Liberties Union Foundation, New York, New York; Sharon Brett, American Civil Liberties Union of Kansas, Overland Park, Kansas; Tim Macdonald, American Civil Liberties Union of Colorado, Denver, Colorado; and Tom McBrien, Electronic Privacy Information Center, Washington, D.C., filed an Amicus Curiae Brief of American Civil Liberties Union, American Civil Liberties Union of Kansas, American Civil Liberties Union of Colorado, Brennan Center for Justice, Center for Democracy & Technology, and Electronic Privacy Information Center in Support of Defendant-Appellant.
Katie Townsend, Counsel of Record for Amici Curiae, and Gabe Rottman, Grayson Clary, and Emily Hockett, Reporters Committee for Freedom of the Press, Washington, D.C., filed an Amicus Curiae Brief of The Reporters Committee for Freedom of the Press and 8 Media Organizations in Support of Defendant-Appellant. _________________________________
Before TYMKOVICH, MURPHY, and CARSON, Circuit Judges. _________________________________
TYMKOVICH, Circuit Judge. _________________________________
Does the Fourth Amendment permit the government to surveil a home for
months on end without a warrant? This case requires us to decide.
The Department of Veterans Affairs (VA) offers lifetime benefits to
permanently disabled veterans. A Kansas jury convicted Bruce Hay of ten counts of
stealing government property and six counts of wire fraud as part of a scheme to
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defraud the VA by exaggerating his disability. As part of its investigation, VA
agents installed a pole camera across the street from his house to film his activities.
Mr. Hay appeals his conviction. He contends that (1) the evidence presented
at trial is insufficient to support a conviction, (2) the VA’s installation of a pole
camera violated his Fourth Amendment rights, and (3) the district judge wrongfully
admitted evidence to the extent that it deprived him of a fair trial.
We affirm the district court.
I. Background
Bruce Hay is a U.S. Army veteran. In 2005, while at home in Kansas, he was
involved in a serious car accident. Doctors diagnosed him with “functional
neurological disorder,” or FND, a psychological disorder that impaired his mobility.
Following this diagnosis, Mr. Hay applied for disability benefits from the VA. In
2006, the VA determined that Mr. Hay was permanently disabled and therefore
entitled to benefits.
Six years later, the VA Inspector General’s office received an anonymous tip
alleging that Mr. Hay was not, in fact, permanently disabled. It initiated an
investigation into Mr. Hay’s disability status. Mr. Hay lived in Osawatomie, a small
town in eastern Kansas. To investigate Mr. Hay’s mobility, officers feigned an
operation involving deer poaching on a nearby farm so that they could monitor Mr.
Hay from a closer distance. They also tailed him to medical appointments and other
events. For a more robust record of his daily activities, they installed a pole camera
on a school rooftop across the street from Mr. Hay’s house. The camera was remote- 3 Appellate Case: 22-3276 Document: 010111018128 Date Filed: 03/19/2024 Page: 4
controlled and activated by motion, and it recorded near constant footage of Mr.
Hay’s house as visible from across the street. All told, the camera captured 15 hours
of footage per day for 68 days.
Over the course of a six-year investigation, the VA finally developed enough
evidence to suggest that Mr. Hay was faking his disability and that he was not
entitled to disability benefits. Subsequently, a grand jury indicted Mr. Hay on ten
counts of stealing government property in violation of 18 U.S.C. § 641 and six counts
of wire fraud in violation of 18 U.S.C. § 1343. A jury found Mr. Hay guilty of all
counts.
II. Analysis
Mr. Hay argues that he was entitled to a judgment of acquittal or a new trial
for three reasons: (1) the evidence presented at trial was insufficient to support a
conviction for stealing government property or for wire fraud; (2) the district court
admitted pole camera footage that was obtained in violation of the Fourth
Amendment; and (3) the district court admitted other incriminating evidence and
testimony in violation of the Federal Rules of Evidence.
A. Sufficiency of the evidence
1. Stealing government property
Mr. Hay first contends his conviction should be vacated because the
government did not supply sufficient evidence to prove that he stole government
property. In reviewing motions for a judgment of acquittal, we must consider
whether “viewing the evidence in the light most favorable to the Government, any 4 Appellate Case: 22-3276 Document: 010111018128 Date Filed: 03/19/2024 Page: 5
rational trier of fact could have found the defendant guilty of the crime beyond a
reasonable doubt.” United States v. Delgado-Uribe, 363 F.3d 1077, 1081 (10th Cir.
2004).
Mr. Hay was charged with fraudulently taking government property under
18 U.S.C. § 641. That statute makes it a crime to take government property in four
different ways. It applies to:
Whoever [1] embezzles, [2] steals, [3] purloins, or [4] knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof.
18 U.S.C. § 641 (brackets added).
Mr. Hay argues that because his scheme involved fraud and deception, but not
theft, the statute does not cover his misconduct. The question, then, is whether
“steal[ing],” as used in the statute, encompasses acts of fraud and deception. It does.
The term “‘steal’ may denote the criminal taking of personal property either by
larceny, embezzlement, or false pretenses.” United States v. Turley, 352 U.S. 407, 412
(1957) (citing Black’s Law Dictionary (4th ed. 1951)) (emphasis added). See also Steal,
Black’s Law Dictionary (3d ed. 1933) (defining “steal” as “the criminal taking of
personal property by larceny, embezzlement, or false pretenses.”). Accordingly, circuit
courts have consistently affirmed convictions under 18 U.S.C. § 641 for submitting
fraudulent paperwork to the government in order to obtain money. See United States v.
Ransom, 642 F.3d 1285, 1289-1290 (10th Cir. 2011) (affirming conviction under
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18 U.S.C. § 641 for falsification of government timesheets); United States v. Rivera-
Ortiz, 14 F.4th 91, 101 (1st Cir. 2021) (affirming conviction under 18 U.S.C. § 641 for
misrepresenting the defendant’s occupation on a social security disability insurance
application); United States v. Oliver, 238 F.3d 471, 472-473 (3d Cir. 2001) (similar); and
United States v. Dowl, 619 F.3d 494, 501-502 (5th Cir. 2010) (affirming conviction under
18 U.S.C. § 641 for falsifying loan applications). Mr. Hay feigned a permanent disability
to access government benefits. That qualifies as “stealing” under 18 U.S.C. § 641.
Mr. Hay resists this conclusion, arguing that “none of the offenses enumerated in
the statute—embezzlement, theft, conversion—extend to offenses that require, as
necessary elements, proof of both a material misrepresentation and an intent to deceive.”
Aplt. Br. at 23. According to Mr. Hay, the term “steal” refers to a “range of common-law
theft offenses that all require the ‘wrongful taking’ of property without the consent of the
owner.” Id. at 24-25 (citing United States v. Hill, 835 F.2d 759, 763 (10th Cir. 1987);
C.R.S. Recovery, Inc. v. Laxton, 550 Fed. App’x 512, 513 (9th Cir. 2013); and Steal,
Merriam-Webster Dictionary). Mr. Hay also distinguishes “stealing” from “fraud,”
which “requires proof that the defendant obtained property by means of ‘false pretenses,
representations, or promises’ that is ‘reasonably calculated to deceive persons of ordinary
prudence.’” Id. at 25 (citing United States v. Cochran, 109 F.3d 660, 664 (10th Cir.
1997); and Fraud, Black’s Law Dictionary (3d ed. 1933)).
Mr. Hay’s definition of “stealing” is overly narrow and unsupported by the text of
the statute or by precedent. As the Supreme Court explained in Turley, “steal[ing]”
includes the “criminal taking of personal property . . . by . . . false pretenses.” Turley,
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352 U.S. at 412. “[T]he courts interpreting [stolen and steal] have declared that they do
not have a necessary common-law meaning coterminous with larceny and exclusive of
other theft crimes.” Id. This reasoning forecloses Mr. Hay’s argument.
Mr. Hay points to our decision in United States v. Hill, where we held that “while
§ 641 defines a broad crime against property, it nonetheless circumscribes the means by
which that crime can be committed.” 835 F.2d 759, 763 (10th Cir. 1987) (internal
citation omitted). But Hill does not help Mr. Hay because its analysis turns on an
intrinsic distinction between conversion and stealing regarding how possession is
obtained: “[o]ne who gains possession of property by wrongfully taking it from another
steals. One who comes into possession of property by lawful means, but afterwards
wrongfully exercises dominion over that property against the rights of the true owner,
commits conversion.” Id. at 764 (internal citations omitted). Thus, we concluded, “proof
that the defendant converted property of the government is not proof that he stole it. The
concepts of stealing and conversion are mutually exclusive.” Id. (emphasis in original).
Unlike in Hill, the government does not argue here that Mr. Hay both came into
possession of property in a lawful manner (i.e. conversion) and also wrongfully took the
property (i.e. stealing). Id. Rather, the government argues that Mr. Hay’s initial
acquisition of government property was wrongful because it was obtained through false
pretenses, thereby placing it within Hill’s definition of stealing. And as Turley made
clear, “fraud” and “stealing” are not mutually exclusive—stealing encompasses
wrongfully obtaining property through “false pretenses.” 352 U.S. at 412.
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Separately, Mr. Hay argues that the absence of “fraud” in the statutory text implies
that Congress did not intend for the statute to forbid stealing by means of fraud. He
points to other statutes that forbid both “stealing” and “obtaining by fraud” as evidence
that Congress treats these as two separate offenses. See 18 U.S.C. §§ 659, 665(a),
666(a)(1)(A), 668(b)(1), and 670(a). He notes that Congress did not place 18 U.S.C.
§ 641 in the section of the criminal code that criminalizes fraud offenses more generally.
Even if Congress considered “stealing” and “fraud” to be two separate offenses,
the statute forbidding “stealing” would still forbid “fraud” wherever a defendant
committed “fraud” as a strategy to steal. “Stealing,” as explained by the Supreme Court,
means the taking of property “by larceny, embezzlement, or false pretenses”—an
expansive definition. Turley, 352 U.S. at 412 (discussing the definition of “stolen” in the
National Motor Vehicle Theft Act, 18 U.S.C. § 2312). And obviously, the actus reus of
stealing can violate more than one federal criminal statute. For example, one might both
steal explosives by wrongfully transporting them away and separately violate 18 U.S.C.
§ 842(a)(3)(A) (prohibiting possession of explosive materials without a license), or steal
an armed vessel and also violate 18 U.S.C. § 964 by delivering it to a belligerent nation,
or steal a drone while flying it off in a way that would recklessly interfere with the
operation of a manned aircraft in violation of 18 U.S.C. § 39B(a)(2).
Since 18 U.S.C. § 641 prohibits stealing government property by means of fraud or
deception, the government presented sufficient evidence to support Mr. Hay’s conviction.
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2. Wire fraud
The jury also found Mr. Hay guilty of six counts of wire fraud under 18 U.S.C.
§ 1343. He contends that the government presented insufficient evidence to show he
intended to commit fraud.
The federal wire fraud statute applies to
[w]hoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice.
18 U.S.C. § 1343. Any falsehood must be material to the scheme, Neder v. United
States, 527 U.S. 1, 24 (1999), and the defendant must have intended to defraud.
United States v. Hanson, 41 F.3d 580, 583 (10th Cir. 1994).
At trial, the government presented evidence that Mr. Hay committed wire
fraud by lying to the VA about the extent of his injuries to obtain benefits. While
Mr. Hay does not dispute the statements alleged by the government, he argues that
they were insufficient to establish materiality or intent.
We disagree. A reasonable factfinder could conclude that Mr. Hay’s
statements were material to the VA’s decision to assign him disability benefits. “A
false statement is material when it has a natural tendency to influence, or is capable
of influencing, the decision of the decisionmaking body to which it was addressed.”
United States v. Williams, 934 F.3d 1122, 1128 (10th Cir. 2019) (internal quotation
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marks omitted). VA officials testified multiple times that the agency considered Mr.
Hay’s description of his disability when determining his disability status. See, e.g.,
R. Vol. III at 325, 360, 398, and 412. Viewing this evidence in the light most
favorable to the government, see Delgado-Uribe, 363 F.3d at 1077, a reasonable trier
of fact could conclude that Mr. Hay’s statements to the government were material.
Mr. Hay argues that the government has not met its burden of showing
materiality since his “doctors also had access to his full medical records, including
reports and test results” and it was “Mr. Hay’s doctors, not Mr. Hay himself, [who]
diagnosed him with FND based on the evidence before them, and there is no evidence
that this diagnosis was based solely on Mr. Hay’s self-reporting his symptoms.”
Aplt. Br. at 36-37. This argument misapprehends the standard for materiality. The
government did not bear the burden of proving that Mr. Hay’s false statements were
decisive to the VA’s disability determination, only that they were “capable of
influencing” that decision. Williams, 934 F.3d at 1128. Any negligence on the part
of Mr. Hay’s doctors in this determination is entirely consistent with the materiality
of Mr. Hay’s misstatements.
A reasonable factfinder could also conclude that the discrepancy between
Mr. Hay’s statements to the VA and his actual physical condition demonstrated an
intent to defraud. The jury heard considerable evidence from agents and medical
professionals that Mr. Hay systematically exaggerated his symptoms to obtain
benefits. As one VA agent testified, Mr. Hay exhibited extreme mobility difficulties
when at his benefits exams. He could only move with assistance from his wife and
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climbed stairs one step at a time, with both feet on each stair. After his exam, when
he believed that he was out of the VA’s sight, Mr. Hay drove over to a pawn shop,
walked in without assistance of his cane or his wife, and walked out carrying a
toolbox. As neurologist Dr. Danielle Baker put it, “there is a marked discrepancy in
what both Mr. Hay and his wife have documented on forms and also demonstrated in
evaluations, compensation benefit evaluations versus what was seen with actual
every day daily functioning when surveillance was taken.” R. Vol. III at 850.
Viewing this evidence in the light most favorable to the government, a reasonable
trier of fact could conclude that Mr. Hay intended to defraud the government. See
Delgado-Uribe, 363 F.3d at 1077.
Mr. Hay also contends that the government has not carried its burden of
showing intent, since he “was upfront with his doctors about his disabilities” and told
his doctors that his “episodes only happened once or twice a week.” Aplt. Br. at 37.
These points, accepted as true, do not warrant reversal. The government proved
fraud at trial by showing that the chasm between the symptoms that Mr. Hay reported
to the VA and the mobility he exhibited out of sight was so great as to be misleading.
Even if Mr. Hay acknowledged some aptitude for physical activity to his doctors, it
does not follow that the government’s exaggeration theory was unsupported by the
evidence overall. That Mr. Hay admitted some ability to perform physical tasks is
fully consistent with the jury’s conclusion that he exaggerated his physical condition.
* * *
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In sum, the evidence at trial was sufficient to support the convictions for theft
of government property and wire fraud.
B. Fourth Amendment
Mr. Hay next argues that the district court should have suppressed evidence
obtained from camera surveillance of his home under the Fourth Amendment. He
contends that constant video surveillance of his home over several months constitutes
an unreasonable search under emerging Supreme Court case law.
As part of its investigation, the VA installed a pole-mounted camera across the
street from Mr. Hay’s house. The camera was motion-activated and remote-
controlled, and it produced footage of the front of Mr. Hay’s property. The camera
could only view Mr. Hay’s property as visible from the street.
The Fourth Amendment guarantees “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const. amend. IV. “When an individual seeks to preserve something
as private, and his expectation of privacy is one that society is prepared to recognize
as reasonable, we have held that official intrusion into that private sphere generally
qualifies as a search and requires a warrant supported by probable cause.” Carpenter
v. United States, 585 U.S. 296, 304 (2018). Warrantless searches “are per se
unreasonable under the Fourth Amendment—subject only to a few specifically
established and well-delineated exceptions.” Arizona v. Grant, 556 U.S. 332, 338
(2009).
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“For much of our history, Fourth Amendment search doctrine was tied to
common-law trespass and focused on whether the Government obtains information
by physically intruding on a constitutionally protected area.” Carpenter, 585 U.S.
at 304. In the 1960s and 1970s, however, the Supreme Court expanded the Fourth
Amendment’s sphere of protection to situations where an individual “seeks to
preserve something as private, and his expectation of privacy is one that society is
prepared to recognize as reasonable.” Id. (citing Smith v. Maryland, 442 U.S. 735,
740 (1979)). This “reasonableness” inquiry is the touchstone of modern Fourth
Amendment analysis.
For decades, the Supreme Court has held that individuals do not have a
reasonable expectation of privacy in activity that occurs in public view. “The Fourth
Amendment protection of the home has never been extended to require law
enforcement officers to shield their eyes when passing by a home on public
thoroughfares.” California v. Ciraolo, 476 U.S. 207, 213 (1986). For instance, the
Fourth Amendment does not require a warrant to view property from the air, if “[a]ny
member of the public flying in this airspace who glanced down could have seen
everything that the[] officers observed.” Id. at 213-214; see also Dow Chemical Co.
v. United States, 476 U.S. 227, 238-239 (1986) (holding that aerial view of an
industrial plant did not violate the Fourth Amendment, even if “human vision is
enhanced somewhat”).
But the Supreme Court has required police obtain a warrant to view activities
that are beyond public view and perceptible only through equipment outside of
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general commercial circulation. In Kyllo v. United States, the government surveilled
a house using a thermal imaging camera. 533 U.S. 27, 34 (2001). In deeming this to
be a search, the Court explained that when “the Government uses a device that is not
in general public use, to explore details of the home that would previously have been
unknowable without physical intrusion, the surveillance is a ‘search’ and is
presumptively unreasonable without a warrant.” Id. at 40; see also id. at 39 (thermal
vision “might disclose, for example, at what hour each night the lady of the house
takes her daily sauna and bath—a detail that many would consider ‘intimate’”). The
Supreme Court’s guideposts are clear: viewing of private settings, visible only with
technology that is not in general public use, is considered a search; viewing settings
that are in public view, or visible via generally available technology, does not
constitute a search.
We have already concluded that the use of a pole camera does not constitute a
search if the camera can only capture activity in public view. In United States v.
Jackson, we held that “[t]he use of video equipment and cameras to record activity
visible to the naked eye does not ordinarily violate the Fourth Amendment.”
213 F.3d 1269, 1280 (10th Cir. 2000) (citing Dow Chem. Co., 476 U.S. at 239 and
Ciraolo, 476 U.S. at 213). We reasoned that “activity a person knowingly exposes to
the public is not a subject of Fourth Amendment protection” and that the pole
cameras at issue in that case “were incapable of viewing inside the houses, and were
capable of observing only what any passerby would easily have been able to
observe.” Id. at 1281. Although Jackson predates Kyllo, it is entirely consistent with
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the holding in Kyllo since videographic equipment is in general commercial
circulation and available to the public at large.
The facts of this case are not meaningfully different from those in Jackson.
Both cases involve the extensive use of cameras surreptitiously filming the front of
the house. While Mr. Hay noted at oral argument that the pole camera incidentally
captured activity in his house, that activity occurred at night in front of the window
and was therefore visible to any passerby. Since the pole camera could not capture
footage of any activity that was not in public view, it did not violate the Fourth
Amendment.
To counter this, Mr. Hay argues that Jackson has been abrogated by the
Supreme Court’s Carpenter decision. He contends that while limited video
surveillance might not violate the Constitution, the government’s months-long,
potentially limitless surveillance crosses the line. In Carpenter, the Supreme Court
considered whether the government conducts a search when it accesses historical
cell-site location information. There, the government subpoenaed cell phone data
from the suspect’s wireless provider to track the suspect’s movement before, during,
and after a crime. The Court found this to be a search covered by the Fourth
Amendment. It explained that whenever a cell phone connects to a cell site, “it
generates a time-stamped record known as cell-site location information,” the
precision of which “depends on the size of the geographic area covered by the cell
site.” Carpenter, 585 U.S. at 301. Since many people carry their cell phones with
them wherever they go, cell-site location information “chronicle[s] a person’s past
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movements through the record of his cell phone signals.” Id. at 309. The Court
found this unreasonable since “[w]hoever the suspect turns out to be, he has
effectively been tailed every moment of every day for five years, and the police
may—in the Government’s view—call upon the results of that surveillance without
regard to the constraints of the Fourth Amendment.” Id. at 312.
The Carpenter court distinguished the case from United States v. Knotts,
where it found that planting a transmitter in a suspect’s car to aid in tracking the
vehicle did not constitute a search. 460 U.S. 276, 282 (1983). There, the Court
explained that “[a] person travelling in an automobile on public thoroughfares has no
reasonable expectation of privacy in his movements from one place to another.” Id.
at 281. Although the officers “relied not only on visual surveillance, but on the use
of the beeper to signal the presence of [the] automobile to the police receiver,”
“nothing in the Fourth Amendment prohibited the police from augmenting the
sensory faculties bestowed upon them at birth” with the beeper. Id. at 282. The
Carpenter court found that Knotts was not controlling on the question of cell site
location information, since that opinion had acknowledged that “different
constitutional principles may be applicable if twenty-four hour surveillance of any
citizen of this country were possible.” Carpenter, 585 U.S. at 306-307 (citing
Knotts, 460 U.S. at 283-284) (internal quotation marks and brackets omitted). It
further noted that in a more recent case on vehicle tracking, “[a] majority of this
Court has already recognized that individuals have a reasonable expectation of
privacy in the whole of their physical movements.” Id. at 310 (citing United States v.
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Jones, 565 U.S. 400, 430 (2018) (Alito, J. concurring); and Jones, 565 U.S. at 415
(Sotomayor, J., concurring)).
The Carpenter court distinguished “pursu[ing] a suspect for a brief stretch,”
which fell within a societal expectation of privacy, from “secretly monitor[ing] and
catalogu[ing] every single movement of an individual’s car for a very long period,”
which fell outside of it. Id. (citing Jones, 565 U.S. at 429-430 (Alito, J.,
concurring)). It reasoned that “[a]llowing government access to cell-site records
contravenes that expectation” because “[m]apping a cell phone’s location over the
course of 127 days provides an all-encompassing record of the holder’s
whereabouts.” Id. at 311. This in turn “provides an intimate window into a person’s
life, revealing not only his particular movements, but through them his ‘familial,
political, professional, religious, and sexual associations.’” Id. citing (Jones,
565 U.S. at 415 (Sotomayor, J. concurring)). Further, unlike tracking devices in cars,
“police need not even know in advance whether they want to follow a particular
individual, or when,” since cell site location data allows the Government to “travel
back in time to retrace a person’s whereabouts, subject only to the retention policies
of the wireless carriers.” Id. at 312. The Carpenter court concluded that accessing
cell site location information “invaded Carpenter’s reasonable expectation of privacy
in the whole of his physical movements” and therefore constituted a search. Id.
at 313.
Mr. Hay contends that he has a similar reasonable expectation of privacy in the
whole of his physical movements coming and going from his home, plus a heightened
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expectation of privacy in the exterior to his home. According to Mr. Hay, the
recording of his house for an extended period of time (68 days in this case) catalogs
his habits, patterns, and visitors in a way that ordinary physical surveillance could
not duplicate. As he puts it, “the footage obtained painted an intimate portrait of
Mr. Hay’s personal life,” including “when he entered and exited his home; who
visited him and his family,” and “what Mr. Hay did on his own front porch.” Aplt.
Br. at 44. He acknowledges that this activity took place in public but argues that
“[w]hile people subjectively lack an expectation of privacy in some discrete actions
they undertake in unshielded areas around their homes, they do not expect that every
such action will be observed and perfectly preserved for the future.” Id. at 45 (citing
Commonwealth v. Mora, 150 N.E.3d 297, 306 (Mass. 2020)).
This argument is precluded by Jackson. That the surveillance took place over
an extended period of time does not change the basic logic of the opinion—camera
surveillance of a home visible to passersby does not constitute a search. Nor does
Carpenter change the equation. The Supreme Court expressly noted that its decision
was “a narrow one:” “[w]e do not express a view on matters not before us: real-time
CSLI or ‘tower dumps’ . . . or call into question conventional surveillance techniques
and tools, such as security cameras.” Carpenter, 585 U.S. at 316 (emphasis added).
Our holding in Jackson that pole cameras trained on a house do not violate the Fourth
Amendment remains binding law, and Carpenter, without more, does not disturb it.
In so holding, we are not alone. No circuit court has concluded that extended video
surveillance of a house is a search under Carpenter. See United States v. Dennis,
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41 F.4th 732, 740-741 (5th Cir. 2022) (finding no Fourth Amendment violation in the
installation of cameras directed at front and back of defendant’s house); United States
v. Tuggle, 4 F.4th 505, 523-524 (7th Cir. 2021) (finding no Fourth Amendment
violation in government’s prolonged, round-the clock use of cameras capturing the
exterior of defendant’s home); and United States v. Trice, 966 F.3d 506, 518-520
(6th Cir. 2020) (finding no Fourth Amendment violation in installation of camera
across the hallway from entrance of defendant’s apartment); cf. Leaders of a
Beautiful Struggle v. Baltimore Police Dep’t, 2 F.4th 330, 341-342 (4th Cir. 2021)
(en banc) (finding a Fourth Amendment violation in use of planes to record
movements across an entire city). An en banc First Circuit deadlocked on the
question, with an even number of judges reaching opposite conclusions. See United
States v. Moore-Bush, 36 F.4th 320 (1st Cir. 2022) (en banc).
Regardless, Mr. Hay’s privacy interests fall outside Carpenter’s rationale.
Carpenter acknowledged that individuals have a privacy interest in “the whole of
their physical movements.” Carpenter, 585 U.S. at 310. The pole camera across the
street from Mr. Hay came nowhere close to capturing “the whole of his physical
movements.” It could only capture his movements at a single location, outside his
house. As soon as he left his house, the government could no longer track him by
this means. And the Carpenter majority was particularly concerned by retrospective
police searches of previously unidentified individuals—i.e. where the government
would “travel back in time to retrace a person’s whereabouts, subject only to the
retention policies of the wireless carriers.” Id. at 312. In this case, the government
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did not delve into a preexisting data set on Mr. Hay’s whereabouts. It set up the
camera while Mr. Hay was already under investigation as a prospective, not
retrospective, investigative measure. The surveillance here merely enhances what
law enforcement could always do—monitor a suspect’s movement in public view.
Mr. Hay attempts to divine a new privacy interest by merging the one
articulated in Carpenter (a retrospective “all encompassing record of the holder’s
whereabouts,” 585 U.S. at 311), with the one identified in Kyllo and Ciraolo (privacy
connected to one’s home). 533 U.S. at 31, 476 U.S. at 213; see also Lange v.
California, 141 S. Ct. 2011, 2018 (2021) (“[W]hen it comes to the Fourth
Amendment, the home is first among equals.” (citing Florida v. Jardines, 569 U.S. 1,
6 (2013)).
But the Supreme Court’s recognition of privacy interests in the home does not
“require law enforcement officers to shield their eyes when passing by a home on
public thoroughfares.” Ciraolo, 476 U.S. at 213. The government executes a search
when it “uses a device that is not in general public use, to explore details of the home
that would previously have been unknowable without physical intrusion,” Kyllo,
533 U.S. at 40, but “[n]ow more than ever, cameras are ubiquitous, found in the
hands and pockets of virtually all Americans, on the doorbells and entrances of
homes, and on the walls and ceilings of businesses.” Tuggle, 4 F.4th at 516.
Mr. Hay retains some privacy interests in the whole of his physical movements and in
the interior of his home, but the pole camera at issue did not infringe upon either of
those interests.
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The Supreme Court has defined a “search” under the Fourth Amendment not
by a fixed point, but by “[w]hen an individual seeks to preserve something as private
and his expectation of privacy is one that society is prepared to recognize as
reasonable.” Carpenter, 585 U.S. at 304 (citing Smith, 442 U.S. at 740) (internal
quotation marks omitted). “Current Fourth Amendment jurisprudence admits of a
precarious circularity: Cutting-edge technologies will eventually and inevitably
permeate society. In turn, society’s expectations of privacy will change as citizens
increasingly rely on and expect these new technologies.” Tuggle, 4 F.4th at 527
(upholding use of pole camera).
Few technologies have expanded more rapidly than the ubiquitous camera,
which is worn by police officers, built into cellphones that the Carpenter court called
“almost a feature of human anatomy,” and strapped to front doors. United States v.
Moore-Bush, 36 F.4th at 372 (Lynch, J., concurring) (citing Carpenter, 585 U.S.
at 311). Cutting edge drone technology enables police to conduct discreet aerial
investigations, see State v. Stevens, 210 N.E.3d 1154, 1157 (Ohio App. 2023), while
satellite images of homes are free and readily available to citizens and law
enforcement alike. See In re Murphy, No. 771 Sept. Term 2022, 2023 WL 2999975,
at *6 (Md. App. 2023). Artificial intelligence software accelerates facial
identification and pattern recognition to a previously unimaginable degree. As video
cameras proliferate throughout society, regrettably, the reasonable expectation of
privacy from filming is diminished.
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In conclusion, Mr. Hay had no reasonable expectation of privacy in a view of
the front of his house. The district court did not err in denying suppression of that
footage.
C. Evidentiary rulings
Finally, Mr. Hay argues that he is entitled to a new trial because of three
erroneous evidentiary rulings by the district court. “We review a trial court’s
evidentiary decisions for abuse of discretion. However, we subject to de novo review
a trial court’s legal conclusions about the Federal Rules of Evidence.” United States
v. Cherry, 217 F.3d 811, 814 (10th Cir. 2000).
First, Mr. Hay argues that the district court erred in permitting the VA agents
to narrate the contents of video footage. He argues that this testimony bolstered the
impact of the footage by allowing non-expert opinion testimony outside the agent’s
expertise. Federal Rule of Evidence 701(b), only permits lay testimony when it is:
(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Fed. R. Evid. 701. Mr. Hay argues that the agents’ testimony did not satisfy the
second condition, because “their impressions of the footage itself were
inappropriate.” Aplt. Br. at 60.
But Rule 701 does not prohibit lay testimony of impressions if those
impressions are helpful to determining a fact in issue. Fed. R. Evid. 701(b). The
district court did not abuse its discretion in concluding that the VA agents’
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impressions of what was occurring in the video, informed by their deep familiarity
with the footage, would help the jury determine a fact in issue.
Second, Mr. Hay argues that the district court erred by permitting the
government to introduce his VA exam records, which included the doctors’
assessment of his entitlement to disability benefits. According to Mr. Hay, these
were out-of-court statements offered for their truth and therefore excludable under
Fed. R. Evid. 801. The district court admitted these records under Fed. R. Evid.
803(4)’s exception for “medical diagnosis or treatment.”1 Mr. Hay contends that the
exception does not apply, because a medical assessment for the purpose of
determining disability is not a “diagnosis.”
We disagree. The dictionary definition of “diagnosis” means “the discovery of
a patient’s illness or the determination of the nature of his disease from a study of his
symptoms,” or “[t]he art or act of recognizing the presence of disease from its
symptoms, and deciding as to its character, also the decision reached, for
determination of type or condition through case or specimen study or conclusion
arrived at through critical perception or scrutiny.” Diagnosis, Black’s Law
Dictionary (4th rev. ed. 1968). Nothing in that definition suggests that making a
disability determination for a given ailment precludes being “diagnosed” with that
1 Rule 803(4) provides that “[a] statement that: (A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause” is an exception to the rule against hearsay evidence.
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ailment. Indeed, it seems to require as much. Rule 803(4) authorizes admission of
the VA records.
Third, Mr. Hay argues that the district court erred in admitting evidence from
after the charging period. The indictment charged Mr. Hay with committing theft
and fraud between 2011 and 2018. The district court, however, also admitted
evidence of Mr. Hay’s behavior from after that period—a mechanic’s lien stating that
he had worked as a farm manager from 1985 to 2020, and a video from 2021.
Mr. Hay contends that this evidence was unduly prejudicial in violation of Fed. R.
Evid. 403.
Rule 403 permits a district court to “exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” “Assessing the probative value of the
proffered evidence, and weighing any factors counseling against admissibility is a
matter first for the district court’s sound judgment under Rules 401 and 403.”
Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 384 (2008) (quoting
United States v. Abel, 469 U.S. 45, 54 (1984)) (brackets omitted). “This is
particularly true with respect to Rule 403 since it requires an on-the-spot balancing of
probative value and prejudice, potentially to exclude as unduly prejudicial some
evidence that already has been found to be factually relevant.” Id. (internal quotation
marks omitted). Accordingly, a “trial court has broad discretion to determine
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whether prejudice inherent in otherwise relevant evidence outweighs its probative
value.” United States v. Poole, 929 F.2d 1476, 1482 (10th Cir. 1991).
The district court acted within its discretion in admitting evidence post-dating
the charging period. The VA allotted benefits to Mr. Hay because it determined that
he was “permanently disabled,” so any evidence that Mr. Hay was able to perform
physical labor after that determination—whether or not it was within the charged
period—was probative as to whether he had defrauded the VA.
III. Conclusion
We affirm the district court’s denial of a judgment of acquittal and
admission of the contested evidence.