Cal.1: No REP in a campsite where one can’t lawfully be

While there is a reasonable expectation of privacy in a tent while camping, the camping has to be lawful. Here defendant was on land he was not permitted to be on, and that’s a big difference. People v. Nishi, 207 Cal. App. 4th 954, 143 Cal. Rptr. 3d 882 (1st Dist. 2012):

Defendant’s unlawful, temporary occupation of the campsite distinguishes the present case from United States v. Gooch (9th Cir. 1993) 6 F.3d 673, 676-677, in which the court concluded that the defendant had an objectively reasonable expectation of privacy in a tent pitched for several days in a public campground where he was “legally permitted to camp.” (Id. at p. 677; see also United States v. Basher (9th Cir. 2011) 629 F.3d 1161, 1167-1168.) In United States v. Sandoval (9th Cir. 2000) 200 F.3d 659, 660-661 (Sandoval), the court extended the holding in Gooch to find a legitimate expectation of privacy associated with the seizure of a medicine bottle discovered during a search of a “makeshift tent” “located on Bureau of Land Management” property, (id. at p. 660), where it was “unclear whether Sandoval had permission to be there.” (Id. at p. 661.) The defendant’s tent in Sandoval was located in an area that was heavily covered by vegetation and virtually impenetrable. In addition, the tent was closed on all four sides, and the medicine bottle was not visible from outside. (Id. at p. 660.) The court in Sandoval concluded: “[W]e do not believe the reasonableness of Sandoval’s expectation of privacy turns on whether he had permission to camp on public land. Such a distinction would mean that a camper who overstayed his permit in a public campground would lose his Fourth Amendment rights, while his neighbor, whose permit had not expired, would retain those rights.” (Id. at p. 661, fn. omitted.)

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Here, in contrast to Sandoval and Hughston, not only was defendant clearly camped in a prohibited location, the shotgun shells were seized from outside his tent, in a pile of debris under a loose tarp. While a tent located in a public campground may be considered a private area where people sleep and keep valuables, functionally somewhat comparable to a house, apartment, or hotel room, the remainder of defendant’s unauthorized, undeveloped campsite was a dispersed, ill-defined site, exposed and open to public view. The area around the tent was not within a defined residential curtilage in which defendant had a reasonable expectation of privacy. (United States v. Basher, supra, 629 F.3d 1161, 1169.) Also, after his repeated removal by officers from campsites he had occupied in the same preserve in the recent past, defendant was conscious of the illegality, which further tends to negate his legitimate expectation of privacy in that location. (People v. Thomas (1995) 38 Cal.App.4th 1331, 1333-1334 [45 Cal.Rptr.2d 610] (Thomas).)

We find the decision in United States v. Ruckman (10th Cir. 1986) 806 F.2d 1471, persuasive in the present case. …