CA9: Area around a dispersed campsite was not curtilage

Defendant consented to a search of his campsite for a shotgun by a nod of the head. The court declined to find the area around his campsite was curtilage and not open fields, notwithstanding that there is an expectation of privacy in a camp tent. United States v. Basher, 629 F.3d 1161 (9th Cir. 2011):

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, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (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.

In the case at bar, Basher was staying in a dispersed, or undeveloped camping area. It appears that Basher’s camp 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.