           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         February 12, 2009

                                     No. 08-50670                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


RAYMOND H. RYAN,

                                                  Plaintiff–Appellant,
v.

KELMAR & ASSOCIATES, INC.,

                                                  Defendant–Appellee.



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:07-CV-723


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Raymond Ryan brought suit against Tinker Air Force Base, Air Force
employees, and Kelmar & Associates, Inc. (Kelmar), a private investigation firm
hired by the Air Force, claiming, among other things, that the Air Force and
Kelmar violated his Fourth Amendment rights by performing surveillance of him
at his home. Ryan appeals the district court’s grant of summary judgment in
favor of Kelmar. We affirm.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 08-50670

                                        I
         Ryan worked for the Department of the Air Force in San Antonio, Texas
as an aerospace engineer. After Ryan’s supervisors ordered him to transfer to
Tinker Air Force Base (Tinker) in Oklahoma, Ryan informed the Department
that he was suffering from back problems that limited his ability to travel and
work. He requested that his relocation to Tinker be delayed because of this
medical condition.
         As proof of his back problems, Ryan produced notes from two physical
therapists and a letter from a physician stating that it was inadvisable for him
to sit in a vehicle for longer than thirty minutes at a time. He also produced
documentation suggesting that he suffered from restrictions to his physical
capacities, including limitations on his ability to lift, climb, twist, and pull.
However, Ryan’s supervisors became suspicious of Ryan’s claim of disability
after coworkers allegedly witnessed him lifting heavy boxes into his pickup
truck.
         After consulting with Judge Advocate General attorneys, Ryan’s
supervisors hired Kelmar to perform video surveillance of Ryan.          Kelmar
employee Rusty Carr performed the surveillance from the public road in front
of Ryan’s home and from a church parking lot across the street from Ryan’s
home using a video camera with a 20x zoom magnification. Carr filmed Ryan
engaging in outdoor activities, including working on his tractor. According to
Carr, the activities “could be seen by passers-by driving on the public road
running in front of Mr. Ryan’s residence.”
         Ryan brought suit against Kelmar under 21 U.S.C. § 1983, alleging
violations of his Fourth Amendment right against unreasonable search and
seizure. Ryan also brought suit against Tinker and Air Force employees,
alleging other wrongful acts in addition to the surveillance. The district court
dismissed the claims against the individual Air Force employees for lack of


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                                       No. 08-50670

personal jurisdiction and dismissed the claims against Tinker for failure to state
a claim. Ryan does not appeal either of those dismissals.
       Kelmar filed a motion to dismiss for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6) and attached affidavits from its employees.
Ryan then moved to compel discovery from Kelmar, alleging that Kelmar was
withholding materials damaging to its case. The district court converted the
12(b)(6) motion to a motion for summary judgment pursuant to Rule 12(d) and
considered evidence outside of the pleadings, including the affidavits attached
by Kelmar and a copy of the surveillance video taken by Carr. The district court
granted summary judgment to Kelmar, holding that Ryan had neither a
subjective nor an objective expectation of privacy in his activities outside his
home.       Ryan appeals the district court’s holding, arguing that he had a
reasonable expectation of privacy and that the district court failed to give him
enough time to develop his case through discovery before granting summary
judgment. Ryan does not, however, challenge the district court’s decision to
convert the 12(b)(6) motion into a summary judgment motion, nor does he assert
that he was not given proper notice of such a conversion.
                                              II
       The Fourth Amendment protects against unreasonable government
searches. In our Fourth Amendment analysis, the relevant question is whether
the person subject to the search had a “constitutionally protected reasonable
expectation of privacy.”1 A search does not violate the Fourth Amendment
unless “the individual manifested a subjective expectation of privacy in the
object of the challenged search,” and “society [is] willing to recognize that
expectation as reasonable.”2

       1
        California v. Ciraolo, 476 U.S. 207, 211 (1986) (quoting Katz v. United States, 389 U.S.
347, 360 (1967) (Harlan, J., concurring)).
       2
           Id.

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                                            No. 08-50670

          Ryan argues that he had a reasonable expectation of privacy because the
curtilage of his residence was bordered by several buildings, large trees, an
electric fence, and parked vehicles arranged to obstruct the view of the home.
Though these obstacles might have blocked the view of some parts of Ryan’s
property, the activities Carr videotaped all took place in areas in plain sight of
a public road. Ryan had no reasonable expectation of privacy in such activities.
          Ryan argues that the use of a video camera with a 20x zoom was
unreasonably intrusive. Though the use of “highly sophisticated surveillance
equipment not generally available to the public, such as satellite technology,
might be constitutionally proscribed absent a warrant,” the use of readily
available, consumer-grade zoom technology does not violate the Fourth
Amendment.3 Thus, Ryan has failed to provide any evidence that Kelmar
engaged in any surveillance that violated his reasonable expectation of privacy.
                                                  III
          Ryan further contends that the district court failed to give him enough
time to develop his case through discovery. “[C]ontrol of discovery is committed
to the sound discretion of the trial court and its discovery rulings will be
reversed only where they are arbitrary or clearly unreasonable.”4 Though
generally “a ruling that denies a party an adequate opportunity to discover facts
to oppose a motion for summary judgment is unreasonable if summary judgment
is subsequently entered against that party,” discovery “may be cut off when the
record shows that the requested discovery is not likely to produce the facts
needed by plaintiff to withstand a Rule 56(e) motion for summary judgment.”5



          3
              Dow Chemical Co. v. United States, 476 U.S. 227, 238 (1986).
          4
              Williamson v. U.S. Dep’t of Agriculture, 815 F.2d 368, 382 (5th Cir. 1987).
          5
              Id. (quoting Paul Kadair, Inc. v. Sony Corp. of Am., 694 F.2d 1017, 1029-30 (5th Cir.
1983)).

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                                    No. 08-50670

        Ryan was permitted by the court to engage in some discovery. He served
interrogatories on Kelmar and made requests for production, and Kelmar
responded to both. Ryan’s motion to compel discovery claimed that Kelmar was
intentionally withholding evidence that would be damaging to its case. Among
the items Ryan asked the court to order Kelmar to provide were: (1) an unedited
copy of the recording taken by Carr, (2) the name and contact information of one
of the investigators whose initials were listed on the Kelmar report from the
case, (3) a copy of the contract between the Air Force and Kelmar,
(4) information about the licenses of certain Kelmar investigators,
(5) correspondence between Kelmar and the Air Force, and (6) a copy of
instructional materials used by Kelmar.
        Of these materials, only the unedited copy of the recording could have
provided evidence relevant to whether Kelmar violated Ryan’s Fourth
Amendment rights. Ryan asserts that the video provided to him and to the court
was an edited copy, but the only evidence supporting this claim is his
observation that the video includes several cuts in it and that the time stamps
on two of the clips are out of order. An affidavit from Kelmar’s president Kelly
Riddle asserts that “[t]here was no editing or splicing of the video at any time”
and that “[a]ny breaks in the video were a result of the video camera being
turned on and off during the course of the surveillance.” Even if the video was
edited, Ryan has provided no evidence indicating that the unedited video would
contain evidence supporting his Fourth Amendment claim, given Carr’s affidavit
stating that he only videotaped activities that were observable from the public
road.    Ryan has failed to demonstrate that further discovery would have
produced the facts he needed to withstand summary judgment. Thus, the
district court’s handling of the discovery matters was not arbitrary or clearly
unreasonable.
                                *        *         *


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            No. 08-50670

AFFIRMED.




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