D.Kan.: Surreptitiously video recording a VA doctor’s exam does not violate 4A

The VA video recorded a physical exam of defendant as a part of a fraud investigation into obtaining VA benefits. Defendant had no reasonable expectation of privacy against recording because the examiner could have reported everything in detail anyway. United States v. Lewis, 2020 U.S. Dist. LEXIS 182862 (D. Kan. Oct. 2, 2020):

In this case, Defendants similarly fail to satisfy the first step of Katz. They willingly attended the C&P exam to remain eligible for VA benefits. They agreed to adhere to the VHA’s procedures, and they did not object to Volosin conducting the exam. It would be objectively unreasonable for a similarly situated veteran to believe that Volosin would not disclose information from the exam to the VBA or other VA agents. In fact, the entire purpose of the C&P exam – as clearly indicated in the VHA’s disclosures-is to evaluate a veteran’s disability for the purpose of making benefits decisions. The means used to convey such information do not alter a veteran’s reasonable expectation of privacy. It is immaterial whether Volosin informed the VBA via detailed written note, comprehensive oral description, or visual and audio recording. What matters is that Defendants lacked a subjective expectation of privacy because they knew information from the C&P exam would be conveyed to other VA agents for the express purpose of determining Addison’s ongoing eligibility for benefits.

This analysis is analogous to the Fourth Amendment issue concerning the pole camera. Had the pole camera captured the interior or exterior of Defendants’ house-or even past their trees-they would have had a stronger expectation of privacy because someone driving by on the public road could not have seen the same. But the areas of their property exposed to the public were not within the purview of their reasonable expectation of privacy. Similarly, Defendants lacked a reasonable expectation of privacy in the C&P exam because they knew Volosin would convey his findings to the VBA. The information they willingly exposed to him, they willingly exposed to the VBA. Volosin could have written an incredibly detailed and descriptive report, approaching the specificity of the visual recording. Even though he did not do so, Defendants nevertheless knew that he could. Simply because a camera captured a similar level of detail does not invalidate Defendants’ subjective expectations. As such, the Court concludes that Defendants fail to satisfy the first step of Katz and therefore denies their Fourth Amendment claim.

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