United States v. Kenneth D. Gooch

6 F.3d 673, 93 Daily Journal DAR 12716, 93 Cal. Daily Op. Serv. 7462, 1993 U.S. App. LEXIS 25518, 1993 WL 390206

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 6, 1993
• Docket: 92-35428
• Status: Published

Opinions

BEEZER, Circuit Judge:

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.

I

At about 3:50 a.m., a woman called the Stevens County Sheriffs 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.¹ 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.

II

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), cert. denied, — U.S. -, 114 S.Ct. 155, 126 L.Ed.2d 116 (1993). The district court’s factual findings are reviewed for clear error. United States v. Echegoyen, 799 F.2d 1271, 1277 (9th Cir.1986).

III

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, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (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, 465 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, 88 S.Ct. at 511; id. at 351-52, 88 S.Ct. at 511 (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, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977). In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (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, 99 S.Ct. at 430; id. at 144 n. 12, 99 S.Ct. at 430 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, 105 S.Ct. 2066, 85 L.Ed.2d 406 (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, 102 S.Ct. 2157, 2165, 72 L.Ed.2d 572 (1982); United States v. Chadwick, 433 U.S. 1, 13, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (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 (same), cert. denied, — U.S. -, 112 S.Ct. 330, 116 L.Ed.2d 270 (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, 105 S.Ct. at 2069 (“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, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976). Finally, even the automobile exception applies only when a vehicle is on the open road or is capable of movement and is “in a place not regularly used for residential purposes — temporary or otherwise.” Carney, 471 U.S. at 392, 105 S.Ct. at 2070. The district court did not err in concluding a tent is more like a house than a car. We hold that Gooch had a reasonable expectation of privacy such that the warrantless search of his tent violated the Fourth Amendment.

IV

The district court held the police were required to obtain an arrest warrant, so the warrantless arrest was unconstitutional. No warrant is required to arrest a suspected felon in a public place. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). Absent exigent circumstances, a warrantless arrest is unconstitutional in a “non-public” place, even when that place is not one’s residence.² United States v. Alvarez, 810 F.2d 879, 881 (9th Cir.1987); Minnesota v. Olson, 495 U.S. 91, 96 n. 5, 110 S.Ct. 1684, 1688 n. 5, 109 L.Ed.2d 85 (1990). See United States v. Ruckman, 806 F.2d 1471, 1475-76 (10th Cir.1986) (McKay, J., dissenting) (suggesting that inhabitant of cave on public property has an objectively reasonable expectation of privacy therein even if the cave is not considered a house).

We have not yet settled whether a tent is a “non-public” place for arrest warrant purposes. In United States v. Rigsby, 943 F.2d 631 (6th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1269, 117 L.Ed.2d 496 (1992), the Sixth Circuit addressed whether an officer who pulled back the unzipped flap of an unoccupied tent and saw a shotgun inside was required to obtain a search warrant. The court concluded that no search warrant was necessary. In that case, “there was no indication that the tent was like a ‘home’ or even a temporary habitation.” Id. at 636. The court explicitly reserved judgment on the defendant’s privacy interest in the tent. Id. at 636-37 (“This is not to say that defendant had no privacy interest in the tent itself, but merely that the presence of the tent, in which no one was apparently residing, did not create a privacy interest in the otherwise non-private area surrounding it.”).

The court in People v. Livermore, 9 Mich.App. 47, 155 N.W.2d 711, 714 (1967), addressed whether police could enter a tent in a public campground and arrest the occupants. The court analyzed the case as one involving a “dwelling house” but upheld the arrest because under Michigan law the officers were justified in making a warrantless arrest in a dwelling house. The court relied on a case involving police entry into a house to support its conclusion that the police entry was justified. Id.

The defendant in Livermore also raised the issue whether the tent was a “public” or “private” place, arguing that the information required proof that the crime occurred in a public place. The state trial court assumed “[f]or the purposes of argument” that the tent was “the equivalent of a private residence notwithstanding its location in a public park,” but, like the appellate court, decided the case on other grounds. Id. 155 N.W.2d at 715.

Though Gooch’s tent was pitched on public property, we hold that the closed tent was a “non-public” place for purposes of Fourth Amendment analysis. We have recognized that, despite the special status afforded a residence under the Fourth Amendment, “an individual’s privacy interests may be implicated in a variety of other settings.” United States v. Driver, 776 F.2d 807, 809 (9th Cir.1985). By establishing a campground, the state created a situation where campers were invited to come to set up a tent. The campers could reasonably assert a legitimate, though temporary, interest in their privacy even in this short-term “dwelling.” A guest in Yellowstone Lodge, a hotel on government park land, would have no less reasonable an expectation of privacy in his hotel room than a guest in a private hotel, and the same logic would extend to a campsite where the opportunity is extended to spend the night. See Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 893, 11 L.Ed.2d 856 (1964) (hotel guest has Fourth Amendment protections). See also Eng Fung Jem v. United States, 281 F.2d 803, 805 (9th Cir.1960) (“The transience of appellant’s stay in the [hotel] room searched by the officers does not dilute the force of constitutional protection. The hotel room in question was appellant’s dwelling. That he lived there for but several days is of no consequence.... The right to privacy must be accorded with equal vigor both to transient hotel guests and to occupants of private, permanent dwellings.”).

For the first time on appeal, the government argues that Gooch’s use of the campground was wrongful because state law prohibited using the campground primarily for residence purposes. We do not address that argument, as “[i]ssues not presented to the trial court cannot generally be raised for the first time on appeal.” United States v. Flores-Payon, 942 F.2d 556, 558 (9th Cir.1991). Though we can review pure issues of law which were not raised before the district court, id., it is not clear from the record, as a matter of law, that Gooch was wrongfully camping at the campground despite the fact that Gooch had no other legal residence. See Ruckman, 806 F.2d at 1476 (McKay, J., dissenting).

We hold that Gooch’s warrantless arrest in his tent violated • the proscription of the Fourth Amendment, absent exigent circumstances.

V

We review de novo whether exigent circumstances justify a warrantless arrest or seizure. Echegoyen, 799 F.2d at 1277-78. The district court’s factual findings are reviewed for clear error. Id. at. 1277. The government has the “heavy burden,” Alvarez, 810 F.2d at 881, of showing that exigent circumstances “made the warrantless arrest imperative.” United States v. Al-Azzawy, 784 F.2d 890, 894 (9th Cir.1985), cert. denied, 476 U.S. 1144, 106 S.Ct. 2255, 90 L.Ed.2d 700 (1986).

Exigent circumstances are “ ‘those in which a substantial risk of harm to the persons involved or to the law enforcement process would arise if the police were to delay a search [or arrest] until a warrant could be obtained.’” Id. (citation omitted) (brackets in original). Exigent circumstances are present when “a reasonable person [would] believe that entry ... was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.” United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 88 L.Ed.2d 46 (1984).

A

The exigencies cited by the government in justifying the arrest in this case were the risk that evidence would be destroyed and the potential danger to the officers and other campers.³ As the district court observed, there was “no independent indication” that the firearm would be destroyed, nor could it even be removed from the tent with the officers present.

The district court found the risk of harm to the officers and others to present a closer issue. The facts that Gooch was intoxicated, that a firearm had been discharged recently, and that people were leaving the campground in fear supported the officers’ conclusion that there was an immediate threat to public safety. However, there was no actual ongoing threat. The district court found that the campground appeared quiet when the officers arrived in the daylight hours. The alleged fight and discharge of the firearm took place several hours before the arrest. The district court did not err in concluding that the deputies could not have reasonably believed that there was a present danger to other occupants of the tent or to other campers. Alvarez, 810 F.2d at 883-84.

The government compares the circumstances here to those in Al-Azzawy. In that case, we determined exigent circumstances existed on the sole basis that the police had been informed by a reliable person that the defendant possessed explosives. AV-Azzawy, 784 F.2d at 894. However, we expressly contrasted Al-Azzawy’s circumstances with those addressed in United States v. Morgan, 743 F.2d 1158, 1161-1163 (6th Cir.1984), cert. denied, 471 U.S. 1061, 105 S.Ct. 2126, 85 L.Ed.2d 490 (1985). In Morgan, the court held that defendants’ possession of automatic weapons did not give rise to exigent circumstances.

B

The search was also not justified by exigent circumstances, as the district court found: “At the time of the search, the defendant was in custody, handcuffed, and locked in the back of a patrol car. He was not a danger to anyone, and he was the only one that the deputies had any reasonable grounds to believe had violated the law, or who could possibly have been a threat to them.”

The government argues the officers needed to search the tent immediately because the firearm presented a potential danger to the children at the campsite. The presence of a firearm alone is not an exigent circumstance. Morgan, 743 F.2d at 1167; United States v. Gooch, 780 F.Supp. 725, 732 (E.D.Wash.1991). The cases cited by the government involved circumstances where unsupervised children would be left inside the house with the weapon or explosives if the officer did not secure it. Al-Azzawy, 784 F.2d at 895; United States v. Antwine, 873 F.2d 1144, 1147 (8th Cir.1989); United States v. Queen, 847 F.2d 346, 353 (7th Cir.1988). In the instant case, no one remained in the tent at the time of the search. It would not have been difficult to prevent children or anyone else from entering the tent until a warrant was obtained. The government’s argument logically would authorize any warrantless search where officers had reason to believe a firearm was involved.

This was not a case in which one or two police officers were forced to react quickly in an inaccessible locale that could only be reached on foot for some distance. The officers drove directly to the campground, only one mile off the main road, in two vehicles. They parked just 20 yards from the tent. Three officers were present to arrest Gooch, with another as backup. There was no ongoing threat. We hold that no exigent circumstances existed.

VI

The government finally contends the search falls into the “search incident to a lawful arrest” exception to the warrant requirement. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). As the arrest was not lawful, we need not decide whether the warrantless search was a valid search incident to a lawful arrest.

The district court’s judgment is

AFFIRMED.

1 . Although Gooch had either fallen asleep or passed out due to alcohol consumption, there is no evidence in the record that the officers knew that fact. This finding of the district court is clearly erroneous.

2 . As it happens, Gooch's tent was his residence. However, the police officers could not reasonably have been expected to realize that fact. This opinion does not rely in any way on the fact that Gooch actually had no other residence.

3 . The government also noted that problems with radio communication in the southwest corner of the county would have made obtaining a warrant inconvenient. "Police officers may not, in their zeal to arrest an individual, ignore the [Fjourth [A]mendment's warrant requirement merely because it is inconvenient.” United States v. Morgan, 743 F.2d 1158, 1164 (6th Cir.1984), cert. denied, 471 U.S. 1061, 105 S.Ct. 2126, 85 L.Ed.2d 490 (1985).