by Marty Zemming
Background
The same scenario as my last blog. Father and son are camping on National Forest Service land in Washington. Nearby campers hear intermittent gunfire coming from a dispersed undeveloped campsite. Campers also observed a campfire when a burn ban was in effect. Among the campers who heard the gunfire were two off-duty law enforcement officers.
The next day, the two officers, a sheriff’s deputy and forest service officer on duty traveled to the 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. They also observed smoke rising from the fire ring.
The deputy announced “Sheriff’s Office” after noticing that the occupants were moving in the tent. The occupants were asked to exit the tent and came out of their own volition. As they exited, 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. Basher responded that the gun was in the tent and instructed his son to get the gun.
His son went into the tent and came out with a sawed-off shotgun of 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 finding their interaction with Basher was valid under Terry v. Ohio since they were aware that gunshots had been fired and could determine that the shots came from the dispersed campsite where there was an illegal fire.
Discussion
The parties disputed whether Miranda applied. Whether Miranda applies depends on whether there has been such a restriction on a person’s freedom as to render him “in custody.” The “ultimate inquiry” underlying the question of custody is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.
Basher argued that he and his son were seized while inside the tent because of the officers’ “show of force.” The Ninth Circuit in United States v. Basher found his arguments unpersuasive. There was no display of weapons by officers, no use of physical force, no threatening language and no evidence his truck was blocked. Before questioning, Basher and the deputy were making small talk and Basher was smoking a cigarette.
The Ninth Circuit was also unpersuaded by Basher’s claim he was under “duress” because of obscure Forest Service regulations that prohibit campers from interfering with the law enforcement activities. The court found that since the regulation could not trump his Fifth Amendment right against self-incrimination, cooperating out of fear of violating a regulation would be unreasonable.
Basher had not been searched or handcuffed and officers had reliable information that there was at least one gun in the camp. Basher claimed there was no reason to ask about the gun because Basher and his son were unarmed but the officers did not know he was unarmed. “[T]he gun’s actual location is irrelevant because the ‘objectively reasonable need’ for protection is based on what the officers knew at the time of the questioning.” Allen v. Ro, 305 F.3d 1046, 1050-51 (9th Cir.2002)
Regardless, the public safety exception applied to the questioning since there was “an objectively reasonable need to protect the police or the public from any immediate danger associated with the weapon.”
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