Cal.1st: Tarp and metal frame structure over a Hummer on a campground has a reasonable expectation of privacy

In a case found unique, but governed by basic principles, defendant was peddling drugs at a music festival on a campground from tarp and metal frame structure built over a Hummer. This was sufficiently like a tent to have a reasonable expectation of privacy, and the structure is not governed by the automobile exception since the vehicle is within the structure. People v. Hughston, 168 Cal. App. 4th 1062, 85 Cal. Rptr. 3d 890 (1st Dist. 2008):

The particular arrangement of the vehicle and tarp structure in this case is unusual if not unique in Fourth Amendment jurisprudence. However, we conclude the tarp structure is equivalent to a large camping tent. There are superficial differences from common camping tents: the structure was makeshift, it was large enough to encompass smaller tents and an eating area, and its design incorporated the entirety of the Hummer. Nevertheless, the structure was functionally identical to a camping tent, in that it was a temporary structure designed to provide its occupants a degree of protection from the elements and privacy while staying outdoors. No California court has ruled on whether a person has a reasonable expectation of privacy in a camping tent, but other courts have extended Fourth Amendment protections to them. U.S. v. Gooch (9th Cir. 1993) 6 F.3d 673 (Gooch) held a defendant had an objectively reasonable expectation of privacy in a tent pitched in a legal public campground. Gooch declined to analogize the tent to a mobile home, which may be subject to the automobile exception. (Id. at p. 677.) In U.S. v. Sandoval (9th Cir. 2000) 200 F.3d 659, 660 (Sandoval), the court extended the holding in Gooch to reach a “makeshift tent” that was “located on Bureau of Land Management … land.” (See also People v. Schafer (Colo. 1997) 946 P.2d 938, 944 [tent pitched on “unimproved, publicly accessible land”]; Alward v. State (1996) 112 Nev. 141, 150 (Alward), overruled on another ground in Rosky v. State (2005) 121 Nev. 184, 191 & fn. 10 [tent pitched on Bureau of Land Management (BLM) land].)

Respondent relies on People v. Thomas (1995) 38 Cal.App.4th 1331 to argue appellant was required to show he and his friends were camped lawfully, and asserts “where a tent is pitched on public property without permits or permission or in violation of law there can exist no reasonable expectation of privacy.” But Thomas held only that a homeless man living in a cardboard box on a public sidewalk, in violation of a law expressly prohibiting him from doing so, did not have a reasonable expectation of privacy in the box. (Id. at pp. 1333-1334; see also United States v. Ruckman (10th Cir. 1986) 806 F.2d 1471, 1472-1473 (Ruckman) [person occupying natural cave on federal land does not have reasonable expectation of privacy].) The defendant in Thomas was aware of the illegality because the city previously had removed another box he had occupied from the same location. (Thomas, at pp. 1333-1334.)

Thomas’s holding provides little support for respondent’s contention that appellant was required to prove his occupancy of the searched site was legal by showing he had paid required camping fees and erected a structure of permissible size.