Appeal from the United States District Court for the Eastern District of Washington. D.C. No. CR-91-174-JLQ. Justin L. Quackenbush, Chief District Judge, Presiding.
Before: Eugene A. Wright, Arthur L. Alarcon, and Robert R. Beezer, Circuit Judges. Opinion by Judge Beezer; Dissent by Judge Alarcon.
The United States appeals the district court's judgment of acquittal and the subsequent order of dismissal with prejudice of defendant Kenneth D. Gooch's conviction for being a felon in possession of a firearm. The government contends that a warrantless arrest of Gooch and a warrantless search of Gooch's tent did not violate the Fourth Amendment. We affirm.
At about 3:50 a.m., a woman called the Stevens County Sheriff's office on behalf of Marc Cole, who claimed a man had shot at him at the state campground. Two officers responded. As they neared the campsite, they observed a vehicle leaving the campsite. The occupants told the officers that Gooch was "hurting people" at the campground and that shots had been fired. Closer to the campground, the officers encountered Marc Cole. Cole said Gooch had fired a shot in his direction after a fight in which Gooch tried to "stick [Cole's] head into the fire." These incidents occurred between midnight and 2:00 a.m.
The officers arrived at the entrance to the campground at approximately 5:00 a.m. and then waited some time for the arrival of another deputy and a reserve officer. It was daylight by this time. Three officers then headed down the entrance road to the campsite itself, a distance of approximately one mile. On the way, they encountered a young man, who told them Gooch was in his tent with a woman. The district court found that when the officers arrived at the campsite, they observed that the campsite was quiet and they determined that Gooch was asleep in his closed tent.*fn1 Gooch had been living in the tent for several days; he had no other residence.
The officers, without seeking an arrest warrant, ordered Gooch out of the tent, patted him down, and arrested him. He was handcuffed and locked in the patrol car 20 yards from the tent. The officers then ordered the other occupant of the tent, Mary Baker, out of the tent. The district court found that the officers then talked to other campers for about 15 minutes. The other campers were not obstructive or threatening, nor was there any indication that they had been involved in the criminal activity.
Still lacking a warrant, the officers searched the tent for the firearm. One of them found a loaded handgun under Gooch's air mattress in the tent.
After dismissal of state charges, a federal indictment for being a felon in possession of a firearm was then returned. A jury convicted Gooch of the federal charge. Gooch timely moved for judgment of acquittal and for a new trial. Gooch also filed a § 2255 petition for habeas corpus in which he claimed ineffective assistance of counsel in that his counsel had failed to move to suppress the firearm. The district court held a post-trial suppression hearing and determined that the firearm, along with the holster and ammunition, should have been suppressed and that the warrantless arrest was invalid. The district court determined that Gooch had a reasonable expectation of privacy in the tent which was protected under the Fourth Amendment, that there were no "exigent circumstances," and that even if the arrest was lawful, the search was not a valid search incident to arrest.
The threshold issue is whether the Fourth Amendment protects a person's privacy interests in a tent located on a public campground. The lawfulness of a search or arrest is reviewed de novo. United States v. Tarazon, 989 F.2d 1045, 1048 (9th Cir. 1993), petition for cert. filed, (June 15, 1993). The district court's factual findings are reviewed for clear error. United States v. Echegoyen, 799 F.2d 1271, 1277 (9th Cir. 1986).
Gooch must have had both a subjective and an objectively reasonable expectation of privacy in the tent. Katz v. United States, 389 U.S. 347, 361, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). The government contends that Gooch could not have had a subjective expectation of privacy in the tent since he could have expected the police to respond to the disturbance he caused and to intrude on his privacy. According to this view, no lawbreaker would have a subjective expectation of privacy in any place because the expectation of arrest is always imminent. The court's finding that Gooch established a subjective expectation of privacy is not clearly erroneous.
We have already established that a person can have an objectively reasonable expectation of privacy in a tent on private property. LaDuke v. Nelson, 762 F.2d 1318, 1326 n.11, 1332 n.19 (9th Cir. 1985). Accord LaDuke v. Castillo, 455 F. Supp. 209 (E.D. Wash. 1978). This reasonable expectation is not destroyed when a person's tent is pitched instead on a public campground where one is legally permitted to camp. The Fourth Amendment "protects people, not places." Katz, 389 U.S. at 351; id. at 351-52 (What a citizen "seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."); United States v. Chadwick, 433 U.S. 1, 7, 53 L. Ed. 2d 538, 97 S. Ct. 2476 (1977). In Rakas v. Illinois, 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978), the Court interpreted Katz to hold that "capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." Id. at 143; id. at 144 n.12 ("Expectations of privacy protected by the Fourth Amendment. . . need not be based on a common-law interest in real or personal property, or on the invasion of such an interest.").
The government would have us compare Gooch's case to those involving mobile motor homes, in which a person has a reduced expectation of privacy. See California v. Carney, 471 U.S. 386, 85 L. Ed. 2d 406, 105 S. Ct. 2066 (1985) (warrantless search of mobile home in which defendant resided did not violate Fourth Amendment because automobile exception applied). The fact that a tent may be moved, alone, is not enough to remove the Fourth Amendment protections. As noted above, tents are protected under the Fourth Amendment like a more permanent structure. Also, a tent is more analogous to a (large) movable container than to a vehicle; the Fourth Amendment protects expectations of privacy in movable, closed containers. United States v. Ross, 456 U.S. 798, 811, 72 L. Ed. 2d 572, 102 S. Ct. 2157 (1982); United States v. Chadwick, 433 U.S. 1, 13, 53 L. Ed. 2d 538, 97 S. Ct. 2476 (1977). See also Pottinger v. City of Miami, 810 F. Supp. 1551 (S.D. Fla. 1992) (person has reasonable expectation of privacy in belongings and personal effects in public area); State v. Mooney, 218 Conn. 85, 588 A.2d 145 (Conn.) (same), cert. denied, 116 L. Ed. 2d 270, 112 S. Ct. 330 (1991). Besides, the reduced expectation of privacy in a vehicle is due in large part to the fact that there is "pervasive" government regulation of vehicles. Carney, 471 U.S. at 392 ("These reduced expectations of privacy derive not from the fact that the area to be searched is in plain view, but from the pervasive regulation of vehicles capable of traveling on the public highways."); South Dakota v. Opperman, 428 U.S. 364, 368, 49 L. Ed. 2d 1000, 96 S. Ct. 3092 (1976). Finally, even the ...