United States v. Basher
2011 U.S. App. LEXIS 1064
9th Cir.2011Background
- Basher was investigated after gunfire and a campfire were reported at a dispersed National Forest campsite during a burn ban.
- Officers observed shotgun shells in Basher’s vehicle and a recently smoldering fire ring; they did not concussion Basher with force.
- The gunshot source was traced to Basher’s campsite; officers approached without drawing weapons.
- Basher and his son exited the tent, and Basher indicated the gun was inside the tent.
- Officers asked Basher where the gun was; Basher’s son retrieved a sawed-off shotgun, leading to Basher’s arrest for possession of an unregistered firearm and as a prohibited person.
- Basher moved to suppress the firearm and statements; the district court denied the motion, and Basher pled guilty conditionally, with a final sentence of 15 months.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the stop was justified by reasonable suspicion. | Basher argues no reasonable suspicion existed. | Basher contends officers’ suspicions were unfounded. | Yes; the stop was supported by reasonable suspicion under Terry. |
| Whether Miranda warnings were required or the public safety exception justified questioning about the gun. | Plaintiff contends interrogation fell within public safety exception. | Basher argues Miranda should have applied. | Public safety exception applied; questioning without Miranda was proper. |
| Whether Basher consent to retrieving the weapon was voluntary. | Government argues consent was voluntary and not a violation. | Basher contends consent was not freely given. | Consent was voluntary; no Fourth Amendment violation in retrieval. |
| Whether the tent campsite area is curtilage and protected by Fourth Amendment. | Prosecution relies on standard curtilage analysis. | Basher argues the area outside the tent is curtilage and protected. | Campsite outside the tent is not curtilage; Struckman does not control here. |
| Whether the warrant requirement was violated by the officers’ conduct. | Investigative actions did not require a warrant given the circumstances. | There was potential warrantless entry/search. | No Fourth Amendment violation; warrant not needed given circumstances. |
Key Cases Cited
- United States v. Sokolow, 490 U.S. 1 (1989) (reasonable suspicion standard for a Terry stop)
- United States v. Berber-Tinoco, 510 F.3d 1083 (9th Cir. 2007) (totality of circumstances for reasonable suspicion)
- United States v. Palos-Marquez, 591 F.3d 1272 (9th Cir. 2010) (in-person tip can justify investigatory stop)
- United States v. Mendez, 476 F.3d 1077 (9th Cir. 2007) (police questioning during a Terry stop does not violate if not prolonging the stop)
- New York v. Quarles, 467 U.S. 649 (1984) (public safety exception to Miranda)
- United States v. Gooch, 6 F.3d 673 (9th Cir. 1993) (tent/privacy and curtilage considerations in campsite context)
- United States v. Dunn, 480 U.S. 294 (1987) (curtilage factors and camping context limitations)
- United States v. Struckman, 603 F.3d 731 (9th Cir. 2010) (backyard curtilage concerns; warrant considerations)
- United States v. Reid, 226 F.3d 1020 (9th Cir. 2000) (consent voluntariness factors)
- United States v. Patayan Soriano, 361 F.3d 494 (9th Cir. 2004) (voluntariness framework for consent)