by Marty Zemming
Background
Campers on National Forest Service land in Yakima County, Washington heard intermittent gunfire coming from a dispersed undeveloped campsite on the bank of the South Fork River. Campers also observed a campfire, although a burn ban was in effect. Among the campers who heard the gunfire were two off-duty law enforcement officers. Campers and one of the officers identified the dispersed campsite as the source of the firing.
The two off-duty officers, a sheriff’s deputy and forest service officer checked into duty the following morning and traveled to the dispersed campsite to investigate.
The deputy noticed that the driver’s side window of a truck was rolled down, and that a box of shotgun shells was lying in plain view on the driver’s seat and was half-empty. They also observed smoke rising from the fire ring.
Upon drawing closer to the tent, the deputy announced “Sheriff’s Office” after noticing that the occupants were moving within the tent. The occupants were asked to exit the tent, and they came out of their own volition. As the individuals exited the tent, the deputy told them to keep their hands in view. The officers did not have their weapons drawn.
The deputy asked the suspect (“Basher”) where the gun was and he responded “What gun?” The deputy advised him that he had seen the shotgun shells and explained there were reports of gunfire coming from the campsite. Basher responded that the gun was in the tent and instructed his son to retrieve the gun. The officers did not enter the tent at any point.
The son went into the tent and came out with a sawed-off shotgun that was of an illegal length and Basher was arrested and charged for being a prohibited person in possession of a firearm. Basher filed a motion to suppress.
The district court denied the motion. The court found both officers were aware that gunshots had been fired and were able to determine from witness statements that the firing came from the dispersed campsite where there was an illegal fire. The officers’ conduct was found lawful under Terry v. Ohio.
On appeal, Basher relied on United States v. Struckman, 603 F.3d 731 (9th Cir.2010), where the Ninth Circuit reversed the conviction of a fleeing felon who threw a backpack over the fence of an unoccupied home. The court in Struckman ruled a backyard was “curtilage,” subject to Fourth Amendment protections, and held the Terry exception to the warrant requirement did not apply in homes.
SO IS A CAMPSITE CURTILAGE SUBJECT TO FOURTH AMENDMENT PROTECTIONS?
In most cases…probably not. The Supreme Court has defined curtilage by reference to four factors: proximity of the area to the home, the nature of the uses to which the area is put, whether the area is included in an enclosure around the home, and the steps taken by the resident to protect the area from observation. While these factors can be employed with reasonable certainty in the urban residential environment, campsites have layouts that are vague or undefined, and individuals often camp in areas that are not predetermined campsites.
In United States v. Basher, the Ninth Circuit found Basher’s seizure claim distinguishable from Struckman because police officers entered Struckman’s backyard, while the Bashers left the tent voluntarily.
Further, classifying the area outside of a tent in a campsite as curtilage is problematic. A tent is comparable to a house, apartment, or hotel room because it is a private area where people sleep and change clothing. However, campsites, such as Basher’s dispersed and undeveloped site, are open to the public and exposed. Basher’s camp was visible from the developed camping area where the officers had stayed the previous night.
Bottom line was that there was no expectation of privacy in the campsite, and that the area outside of the tent in these circumstances is not curtilage.
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