USA v. Michael Basher

Filing

FILED OPINION (KIM MCLANE WARDLAW, RONALD M. GOULD and RICHARD MILLS) In summary, we hold that the officers interaction with Basher constituted a valid Terry encounter, and that Basher s Fifth Amendment rights were not violated. We further hold that Basher s Fourth Amendment rights were not violated, and that he consented to the retrieval of the shotgun from the tent. Finally, we hold that the area of a campsite outside of a tent in these circumstances is not curtilage. Accordingly, the district court properly denied Basher s Motion to Suppress.AFFIRMED. Judge: KMW , Judge: RMG , Judge: RM Authoring. FILED AND ENTERED JUDGMENT. [7618831]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL EMERY BASHER,
Defendant-Appellant.





No. 09-30311
D.C. No.
CR-08-2127-RWH
OPINION

Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, District Judge, Presiding
Argued and Submitted
May 6, 2010—Seattle, Washington
Filed January 20, 2011
Before: Kim McLane Wardlaw and Ronald M. Gould,
Circuit Judges, and Richard Mills,* Senior District Judge.
Opinion by Judge Mills

*The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.

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COUNSEL
James A. McDevitt, United States Attorney, Alexander C.
Ekstrom (argued), Assistant United States Attorney, Yakima,
Washington, for the plaintiff-appellee.
Diane E. Hehir, Assistant Federal Public Defender, Federal
Defenders of Eastern Washington & Idaho, Yakima, Washington, for the defendant-appellant.

OPINION
MILLS, Senior District Judge:
Michael E. Basher (“Basher”) appeals the denial of his
motion to suppress a firearm and statements made to police
who arrested him after responding to reports of an illegal fire
and discharge of a firearm on National Forest Service land.
Basher entered a conditional guilty plea after the district court

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denied his motion to suppress. Basher was convicted of being
a prohibited person in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1), and for possession of an unregistered
firearm, in violation of 26 U.S.C. § 5861(d).
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
I.
On the night of September 1, 2007, campers on National
Forest Service land in Yakima County, Washington heard
intermittent gunfire over the course of two hours coming from
a “dispersed” or undeveloped campsite on the bank of the
South Fork River. Campers also observed a campfire at the
same location, although a burn ban was in effect. Among the
campers who heard the gunfire were two off-duty law
enforcement officers.
The topography surrounding the dispersed campsite,
including a rock wall, caused an echo phenomenon that distorted the report of the firearm, so the officers could not tell
what kind of weapon was being discharged. While the echo
phenomenon distorted the report of the firearm, it did not
seem to affect the campers’ ability to locate the source of the
firing. Campers and one of the officers identified the dispersed campsite as the source of the firing.
The two off-duty officers—Yakima County Sheriff’s Deputy Dan Cypher1 and Forest Service Officer Blair Bickel—
checked into duty the following morning and each traveled
toward the dispersed campsite to investigate. Officer Bickel
arrived first and contacted Deputy Cypher by radio, informing
him that he wished to investigate the occurrences at the camp1

The Yakima County Sheriff’s Department has a contract to provide law
enforcement services to the United States Forest Service.

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site. Deputy Cypher was en route, and arrived immediately
after the radio communication.
Upon arriving, Deputy Cypher parked his vehicle nose to
nose with Basher’s truck. While Deputy Cypher later testified
that this would block the vehicle’s exit, Officer Bickel testified that there was sufficient room to drive around the police
vehicle. Deputy Cypher emitted a few short bursts from his
vehicle’s siren.
Deputy Cypher noticed that the driver’s side window of
Basher’s truck was rolled down, and that a box of shotgun
shells was lying in plain view on the driver’s seat. He also
noted that the box was open and half-empty. Deputy Cypher
pointed out the box of shotgun shells to Officer Bickel.
The officers also observed the fire ring as they approached
the tent. Officer Cypher testified that in addition to the rocks
typically placed around the edge of a fire ring, this fire ring
had additional rocks stacked on top, creating a cone of rocks
that could inhibit observation of the fire. Deputy Cypher testified that he saw smoke rising from the fire ring, and that the
contents appeared to be smoldering. Officer Bickel remembered seeing ashes that were consistent with a recent fire, but
could not recall seeing smoke.
From their position, the officers were facing the rear of the
tent. Upon drawing closer to the tent, Deputy Cypher
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, Deputy Cypher told them
to keep their hands in view. Deputy Cypher could not recall
his exact words, and Officer Bickel could only recall that the
word “hands” was used. The officers did not have their weapons drawn or yell at Basher or his son. There was no testimony that Basher and his son were ordered out of the tent.

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The officers guided Basher away from the tent, slightly separating him from his son. The officers engaged in small talk
with them, and Basher lit a cigarette. No one was placed in
handcuffs or frisked.
Deputy Cypher then asked Basher where the gun was.
Basher responded “What gun?” Deputy Cypher told Basher
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.
Deputy Cypher asked if Basher’s son could retrieve the
weapon from the tent. Basher looked at his son and nodded
affirmatively for him to retrieve the gun. Deputy Cypher gave
the son instructions on how to safely retrieve the weapon. The
officers did not enter the tent at any point.
The son went into the tent, and came out with a sawed-off
shotgun. Deputy Cypher testified that he immediately recognized that the shotgun was of an illegal length, and arrested
Basher. Deputy Cypher read Basher his Miranda rights, and
Basher waived his rights. Basher subsequently made inculpatory statements. Upon running Basher’s name through a database, Deputy Cypher discovered that Basher had an
outstanding warrant from Lewis County. Basher was subsequently transported to jail. Ultimately, Basher was not formally charged with violating provisions in the Code of
Federal Regulations (“C.F.R.”) regarding the illegal campfire
or the firing of the weapon, nor was he charged for analogous
state crimes.
On November 13, 2008, Basher was indicted and charged
with being a prohibited person in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1), and possession of an
unregistered firearm, in violation of 26 U.S.C. § 5861(d).
Basher filed his motion to suppress on February 27, 2009, and
a hearing was held on March 11, 2009. Neither Basher nor his
son testified at the suppression hearing.

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The district court denied the motion to suppress, following
testimony and argument by counsel. The district court made
the following factual findings: (1) both officers were aware
that gunshots had been fired; (2) Deputy Cypher believed the
firing came from the dispersed campsite and Officer Bickel
did not know where the firing originated; and (3) Officer
Bickel was able to determine from witness statements that the
firing came from the dispersed campsite, and that there was
an illegal fire at that location.
The district court ruled that the officers’ conduct was lawful under Terry v. Ohio, 392 U.S. 1 (1968). The district court
held alternatively that there was probable cause to arrest
Basher for illegal discharge of a weapon and for violating the
burn ban, and that in any event, the questioning regarding the
gun falls under the public safety exception.
Basher entered a conditional guilty plea on April 24, 2009,
and he was sentenced to a term of 15 months on August 4,
2009. Basher filed his Notice of Appeal on August 20, 2009.
According to the Bureau of Prisons (“BOP”) Inmate Locator
Service, Basher was released from custody on February 12,
2010.2
II.
A.
“ ‘We review de novo motions to suppress, and any factual
findings made at the suppression hearing for clear error.’ ”
United States v. Ruckes, 586 F.3d 713, 716 (9th Cir. 2009)
(quoting United States v. Negrete-Gonzales, 966 F.2d 1277,
1282 (9th Cir. 1992)).
2
See Inmate Locator, http://www.bop.gov/iloc2/LocateInmate.jsp (last
visited Dec. 4, 2010). We take judicial notice of this information that is
available to the public. See Demis v. Sniezek, 558 F.3d 508, 513 n.2 (6th
Cir. 2009); see also United States v. Montgomery, 550 F.3d 1229, 1231
n.1 (10th Cir. 2008).

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B.
[1] The officers’ interaction with Basher was a valid Terry
encounter. An investigatory stop or encounter does not violate
the Fourth Amendment if the officers have “reasonable suspicion supported by articulable facts that criminal activity ‘may
be afoot.’ ” United States v. Sokolow, 490 U.S. 1, 7 (1989)
(quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)).
In deciding whether a stop was supported by reasonable
suspicion, the court must consider whether “in light of the
totality of the circumstances, the officer had a particularized
and objective basis for suspecting the particular person
stopped of criminal activity.” United States v. Berber-Tinoco,
510 F.3d 1083, 1087 (9th Cir. 2007) (internal quotation marks
and citation omitted).
[2] Deputy Cypher and Officer Bickel had well-founded
suspicions of criminal activity originating in Basher’s camp.
The record indicates, and the district court found, that Deputy
Cypher determined that the firing originated from Basher’s
dispersed campsite. Although Officer Bickel did not know
initially where the firing came from, he was able to interview
witnesses and determine that the firing came from the
Basher’s dispersed campsite. The witness reports received in
person by the officers appear to have been credible, and provided a legitimate basis for investigating, although the officers did not write down the witnesses’ names. See United
States v. Palos-Marquez, 591 F.3d 1272, 1275-77 (9th Cir.
2010) (holding that an in-person tip can be sufficiently reliable to justify an investigatory stop).
Basher has attempted to portray the officers as merely acting upon a hunch. However, it appears from the record that
there were specific and articulable facts that led each officer
to believe that the shooting and campfire should be investigated. It is noteworthy that it appears from the record that
each officer decided independently to pursue this matter.

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Basher has argued that by the time the officers arrived at
the dispersed campsite there was no longer a reason to investigate under Terry because the illegal acts had ceased. However, it was reasonable to believe that the activities would
recur. When dealing with illegal sporadic gunfire, there is no
guarantee that the culprits will refrain from firing again in the
future. The same can be said for the use of an illegal campfire
during a burn ban. Therefore, the officers could have reasonably assumed that the firing could resume sometime in the
near term.
Basher states that Deputy Cypher had no reason under
Terry to ask about a firearm after Basher and his son exited
the tent, because they were unarmed and the weapon was in
the tent. Although Terry often comes up in the context of officer safety, the whole purpose of a Terry encounter is to investigate suspected criminal activity. See Terry, 392 U.S. at 22.
The officers were justified asking about the gun because it
was within the scope of the investigation and to ensure officer
safety.
[3] Here, the officers were investigating a gun crime and
an illegal campfire. When police officers investigate gun
crimes, it is routine to ask questions about guns. It is reasonable for officers investigating a gun crime to determine
whether a firearm is present, and what kind of firearm it is.
Therefore, the questions regarding the gun were within the
scope of the Terry encounter.3
3

If the officers had asked questions about something other than a gun,
it would not have necessarily created a seizure under the Fourth Amendment. In the context of a Terry stop, a person’s Fourth Amendment rights
are not violated by the asking of questions, as long as the seizure itself is
lawful under Terry and the encounter is not prolonged by the questioning.
See United States v. Mendez, 476 F.3d 1077, 1080 (9th Cir. 2007)
(“ ‘[M]ere police questioning does not constitute a seizure’ unless it prolongs the detention of the individual, and, thus, no reasonable suspicion is
required to justify questioning that does not prolong the stop.” (quoting
Muehler v. Mena, 544 U.S. 93, 101 (2005))); cf. Illinois v. Caballes, 543

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C.
[4] The parties dispute whether Miranda applies. Officers
are required to inform suspects of their Fifth Amendment
rights before custodial interrogations. Miranda v. Arizona,
384 U.S. 436, 444-45 (1966). The standard for determining
whether police questioning rises to the level of a custodial
interrogation is detailed below:
Miranda warnings are required only where 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. To answer this question, the reviewing court
looks to the totality of the circumstances that might
affect how a reasonable person in that position
would perceive his or her freedom to leave.
Stanley v. Schriro, 598 F.3d 612, 618 (9th Cir. 2010) (internal
quotation marks, alterations, and citations omitted).
[5] In this case, there was no display of weapons by the
officers, no use of physical force, and it does not appear there
was threatening language. Immediately before the questions
about the firearm, Deputy Cypher and Basher were making
small talk and Basher lit a cigarette. It does not appear that
Basher’s movements were significantly curtailed.
[6] Basher argues that he and his son were seized while
inside the tent because of the officers’ show of force. Basher’s
U.S. 405, 407-08 (2005) (holding that a dog sniff carried out during a traffic stop, when there is no reasonable suspicion of drug activity, does not
violate the Fourth Amendment as long as the duration of the stop was not
extended by the dog sniff).

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assertion that the officers presented an overwhelming show of
force is unpersuasive. Deputy Cypher merely alerted Basher
and his son to the officers’ presence by briefly sounding the
siren and announcing “Sheriff’s Department.” Furthermore,
Basher’s emphasis on the “hands” comment is unfounded.
Police officers routinely ask individuals to keep their hands in
sight for officer protection, and in this case the request does
not appear to have been made in a threatening manner.
Although Basher argues that his truck was blocked in, the testimony on that issue was contradictory, with Officer Bickel
testifying that there was room to drive away.
Basher further argues that he was under duress because
under Forest Service regulations, campers and hikers are prohibited from interfering with the law enforcement activities of
the officers, and that campers must respond to law enforcement contact. See 36 C.F.R. § 261.3.
This argument is without merit. First, it is unclear that this
issue was properly presented to the district court.4 Second,
Basher adduces no evidence that his cooperation was motivated by a desire to comply with an obscure regulation. Third,
the regulation does not trump a person’s Fifth Amendment
right against self-incrimination. Thus, cooperation out of fear
of violating the regulation would be unreasonable.
[7] In any event, it appears that the public safety exception
applies to the questioning. An officer’s questioning of a suspect without a Miranda warning is proper if the questioning
is related to “an objectively reasonable need to protect the
police or the public from any immediate danger associated
4

When Basher mentioned the regulation in general terms at the hearing,
the district court requested the citation or the text of the regulation. Basher
initially provided the district court the citation of a nonexistent regulation
and later apologized being unable to provide a citation. The district court
noted, “if it has some relevance that I have to rule on it, I’d like to see it.
But other than that I don’t know—I mean you haven’t argued it.”

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with the weapon.” New York v. Quarles, 467 U.S. 649, 659
n.8 (1984) (holding that similar facts established only a Terry
stop). An officer’s subjective motivation is not relevant in
analyzing whether questioning falls within the public safety
exception. Id. at 656.
[8] In this case, Basher had not been searched or handcuffed, and he could have retrieved a weapon. See United
States v. Reilly, 224 F.3d 986, 993 (9th Cir. 2000). The officers had reliable information that there was at least one gun
in the camp, and there was an objectively reasonable need to
find out where it was located. Basher has argued that there
was no reason to ask about the gun because Basher and his
son were unarmed at the time the question was asked. However, it is not clear that the officers knew that Basher was
unarmed when they asked him where the gun was located. See
Allen v. Roe, 305 F.3d 1046, 1050-51 (9th Cir. 2002) (“[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.”).
D.
[9] The district court found that the retrieval of the weapon
was voluntary, but it did not make a specific finding of fact
on Basher’s consent to the retrieval. The Fourth Amendment
provides that people are protected from warrantless searches
and seizures. Consent can be inferred from nonverbal actions,
but it must be “unequivocal and specific” and “freely and
intelligently given.” United States v. Chan-Jimenez, 125 F.3d
1324, 1328 (9th Cir. 1997) (quoting United States v. Shaibu,
920 F.2d 1423, 1426 (9th Cir. 1990)). We have held that people can have a reasonable expectation of privacy in a tent
pitched on public land. See United States v. Gooch, 6 F.3d
673, 677 (9th Cir. 1993).
The testimony indicates that Deputy Cypher asked for
Basher’s consent. It is undisputed that Basher affirmatively

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nodded his head regarding the retrieval of the shotgun.
Basher’s attorney did not cross-examine Deputy Cypher on
this point.5
[10] From the record, the head nod did not seem to be
ambiguous, and head nods have been found to express consent. See, e.g., United States v. Yockey, 654 F. Supp. 2d 945,
954 (N. D. Iowa 2009). The consent in this case seems to be
specific—clearly defining who would enter the tent (his son)
and the scope of the activity (bringing the gun outside).6
The totality of the circumstances determine whether consent was “freely and intelligently given.” United States v.
Reid, 226 F.3d 1020, 1026 (9th Cir. 2000). We look to five
factors in determining voluntariness: “(1) whether defendant
was in custody; (2) whether the arresting officers had their
guns drawn; (3) whether Miranda warnings were given; (4)
whether the defendant was notified that [he] had a right not
to consent; and (5) whether the defendant had been told a
search warrant could be obtained.” United States v. Patayan
Soriano, 361 F.3d 494, 502 (9th Cir. 2004). We noted that
“[i]t is not necessary to check off all five factors, but many
of this court’s decisions upholding consent as voluntary are
supported by at least several factors.” Id. (internal quotation
marks and citation omitted).
[11] In this case, the defendant was not in custody and the
officers did not have their guns drawn. In addition, the officers did not tell Basher that a search warrant could be
obtained if he refused to consent. On the other hand, Basher
5

Counsel did ask about the instructions relating to the son, but did not
elicit testimony clarifying the interaction regarding consent to search.
Instead, counsel only elicited testimony from Deputy Cypher about his
instructions to the son on how to unload the weapon.
6
Basher argues that one cannot give consent during a Terry encounter,
claiming that police-citizen interactions are either wholly consensual or
completely involuntary. This argument is without merit. See United States
v. Meza-Corrales, 183 F.3d 1116, 1125 (9th Cir. 1999).

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had not been told he could refuse consent. As indicated above,
we hold that Basher was not in custody, so the fact that no
Miranda warnings were given is inapposite. Considering the
totality of the circumstances, it appears that no Fourth
Amendment violation occurred in connection to the retrieval
of the weapon.
E.
Basher has made several arguments regarding the warrant
requirement, and has drawn our attention to United States v.
Struckman, 603 F.3d 731 (9th Cir. 2010). In that case, a
neighbor saw Struckman toss a backpack over the fence of an
unoccupied home, and then saw him climb over the fence into
the backyard. Id. at 736. After a 911 call, police arrived and
confronted Struckman, who was acting erratically because he
was high on methamphetamine. Id. at 736-37. During a patdown search, police officers found a handgun magazine in
Struckman’s pocket and later located the handgun in the backpack. Id. at 737. After questioning Struckman, the police
learned that he resided at the home. Id.
We reversed Struckman’s conviction of being a felon in
possession of a firearm, in part, because we held that the
backyard of a home is curtilage, subject to Fourth Amendment protections. Id. at 739. We also held that the Terry
exception to the warrant requirement does not apply in homes.
Id. at 738.
As mentioned above, Basher claims that he and his son
were seized while in their tent, because of the officers’ display of authority. As we have detailed, the officers merely
announced their presence, and the district court held that
Basher and his son exited the tent of their own volition. The
district court’s finding does not appear to be clearly erroneous, and therefore we will not disturb it. See Ruckes, 586 F.3d
at 716.

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[12] Basher’s seizure claim is distinguishable from Struckman because police officers entered Struckman’s backyard,
while here the Bashers left voluntarily. Because the Bashers
left the tent voluntarily, the seizure argument necessarily fails.
See United States v. Crapser, 472 F.3d 1141, 1145-46 (9th
Cir. 2007).
[13] In addition, Basher has referred to the warrantless
entry or search of the camp by the officers. Under Gooch,
officers cannot enter a tent without a warrant, but that case did
not address whether a campsite is also protected by the warrant requirement. See Gooch, 6 F.3d at 677; see also FloatRite Park, Inc. v. Vill. of Somerset, 629 N.W.2d 818, 824 n.2
(Wis. Ct. App. 2001) (examining Gooch and rejecting argument that expectation of privacy extends to campground).
[14] Classifying the area outside of a tent in a National
Park or National Forest lands campsite as curtilage would be
very problematic. A tent is comparable to a house, apartment,
or hotel room because it is a private area where people sleep
and change clothing. See Gooch, 6 F.3d at 677. However,
campsites, such as the dispersed, ill-defined site here, are
open to the public and exposed.
In United States v. Dunn, 480 U.S. 294 (1987), the
Supreme Court found that curtilage is defined 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. Id. at 301. While
these factors can be employed with reasonable certainty in the
urban residential environment, the analysis does not necessarily carry over to most camping contexts. Parkland campsites
often have layouts that are vague or dispersed, and individuals
often camp in areas that are not predetermined campsites.
[15] In the case at bar, Basher was staying in a dispersed,
or undeveloped camping area. It appears that Basher’s camp

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was visible from the developed camping area where the officers had stayed the previous night. Therefore, we hold that
there was no expectation of privacy in the campsite, and that
the area outside of the tent in these circumstances is not curtilage. Accordingly, Struckman does not control the outcome of
this case.
III.
In summary, we hold that the officers’ interaction with
Basher constituted a valid Terry encounter, and that Basher’s
Fifth Amendment rights were not violated.
We further hold that Basher’s Fourth Amendment rights
were not violated, and that he consented to the retrieval of the
shotgun from the tent.
[16] Finally, we hold that the area of a campsite outside of
a tent in these circumstances is not curtilage.
Accordingly, the district court properly denied Basher’s
Motion to Suppress.
AFFIRMED.