U.S. v. Basher

• Decision Date: 20 January 2011
• Docket Number: No. 09-30311,09-30311
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Emery BASHER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

629 F.3d 1161

UNITED STATES of America, Plaintiff-Appellee,

v.Michael Emery BASHER, Defendant-Appellant.

No. 09-30311.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted May 6, 2010.

Filed Jan. 20, 2011.

James A. McDevitt, United States Attorney, Alexander C. Ekstrom (argued),Assistant United States Attorney, Yakima, WA, for the plaintiff-appellee.

Diane E. Hehir, Assistant Federal Public Defender, Federal Defenders of Eastern Washington & Idaho, Yakima, WA, for the defendant-appellant.

Appeal from the United States District Court for the Eastern District of Washington, Robert H. Whaley, District Judge, Presiding. D.C. No. CR-08-2127-RWH.

Before: KIM McLANE WARDLAW and RONALD M. GOULD, Circuit Judges, and RICHARD MILLS,^* Senior District Judge.

OPINION

MILLS, Senior District Judge:

Michael E. Basher ("Basher") appeals the denial of his motion to suppress a firearm and statements made to police who arrested him after responding to reports of an illegal fire and discharge of a firearm on National Forest Service land. Basher entered a conditional guilty plea after the district court denied his motion to suppress. Basher was convicted of being a prohibited person in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and for possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d).

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I.

On the night of September 1, 2007, campers on National Forest Service land in Yakima County, Washington heard intermittent gunfire over the course of two hours coming from a "dispersed" or undeveloped campsite on the bank of the South Fork River. Campers also observed a campfire at the same location, although a burn ban was in effect. Among the campers who heard the gunfire were two off-duty law enforcement officers.

The topography surrounding the dispersed campsite, including a rock wall, caused an echo phenomenon that distorted the report of the firearm, so the officers could not tell what kind of weapon was being discharged. While the echo phenomenon distorted the report of the firearm, it did not seem to affect the campers' ability to locate the source of the firing. Campers and one of the officers identified the dispersed campsite as the source of the firing.

The two off-duty officers—Yakima County Sheriff's Deputy Dan Cypher ¹ and Forest Service Officer Blair Bickel—checked into duty the following morning and each traveled toward the dispersed campsite to investigate. Officer Bickel arrived first and contacted Deputy Cypher by radio, informing him that he wished to investigate the occurrences at the campsite. Deputy Cypher was en route, and arrived immediately after the radio communication.

Upon arriving, Deputy Cypher parked his vehicle nose to nose with Basher's truck. While Deputy Cypher later testified that this would block the vehicle's exit, Officer Bickel testified that there was sufficient room to drive around the police vehicle. Deputy Cypher emitted a few short bursts from his vehicle's siren.

Deputy Cypher noticed that the driver's side window of Basher's truck was rolled down, and that a box of shotgun shells was lying in plain view on the driver's seat. He also noted that the box was open and half-empty. Deputy Cypher pointed out the box of shotgun shells to Officer Bickel.

The officers also observed the fire ring as they approached the tent. Officer Cypher testified that in addition to the rocks typically placed around the edge of a fire ring, this fire ring had additional rocks stacked on top, creating a cone of rocks that could inhibit observation of the fire. Deputy Cypher testified that he saw smoke rising from the fire ring, and that the contents appeared to be smoldering. Officer Bickel remembered seeing ashes that were consistent with a recent fire, but could not recall seeing smoke.

From their position, the officers were facing the rear of the tent. Upon drawing closer to the tent, Deputy Cypher announced "Sheriff's Office" after noticing that the occupants were moving within the tent. The occupants were asked to exit the tent, and they came out of their own volition.

As the individuals exited the tent, Deputy Cypher told them to keep their hands in view. Deputy Cypher could not recall his exact words, and Officer Bickel could only recall that the word "hands" was used. The officers did not have their weapons drawn or yell at Basher or his son. There was no testimony that Basher and his son were ordered out of the tent. The officers guided Basher away from the tent, slightly separating him from his son. The officers engaged in small talk with them, and Basher lit a cigarette. No one was placed in handcuffs or frisked.

Deputy Cypher then asked Basher where the gun was. Basher responded "What gun?" Deputy Cypher told Basher that he had seen the shotgun shells and explained there were reports of gunfire coming from the campsite. Basher responded that the gun was in the tent.

Deputy Cypher asked if Basher's son could retrieve the weapon from the tent. Basher looked at his son and nodded affirmatively for him to retrieve the gun. Deputy Cypher gave the son instructions on how to safely retrieve the weapon. The officers did not enter the tent at any point.

The son went into the tent, and came out with a sawed-off shotgun. Deputy Cypher testified that he immediately recognized that the shotgun was of an illegal length, and arrested Basher. Deputy Cypher read Basher his Miranda rights, and Basher waived his rights. Basher subsequently made inculpatory statements. Upon running Basher's name through a database, Deputy Cypher discovered that Basher had an outstanding warrant from Lewis County. Basher was subsequently transported to jail. Ultimately, Basher was not formally charged with violating provisions in the Code of Federal Regulations ("C.F.R.") regarding the illegal campfire or the firing of the weapon, nor was he charged for analogous state crimes.

On November 13, 2008, Basher was indicted and charged with being a prohibited person in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d). Basher filed his motion to suppress on February 27, 2009, and a hearing was held on March 11, 2009. Neither Basher nor his son testified at the suppression hearing.

The district court denied the motion to suppress, following testimony and argument by counsel. The district court made the following factual findings: (1) both officers were aware that gunshots had been fired; (2) Deputy Cypher believed the firing came from the dispersed campsite and Officer Bickel did not know where the firing originated; and (3) Officer Bickel was able to determine from witness statements that the firing came from the dispersed campsite, and that there was an illegal fire at that location.

The district court ruled that the officers' conduct was lawful underTerry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The district court held alternatively that there was probable cause to arrest Basher for illegal discharge of a weapon and for violating the burn ban, and that in any event, the questioning regarding the gun falls under the public safety exception.

Basher entered a conditional guilty plea on April 24, 2009, and he was sentenced to a term of 15 months on August 4, 2009. Basher filed his Notice of Appeal on August 20, 2009. According to the Bureau of Prisons ("BOP") Inmate Locator Service, Basher was released from custody on February 12, 2010. ²

II.

A.

" 'We review de novo motions to suppress, and any factual findings made at the suppression hearing for clear error.' " United States v. Ruckes, 586 F.3d 713, 716 (9th Cir.2009) (quoting United States v. Negrete-Gonzales, 966 F.2d 1277, 1282 (9th Cir.1992)).

B.

The officers' interaction with Basher was a valid Terry encounter. An investigatory stop or encounter does not violate the Fourth Amendment if the officers have "reasonable suspicion supported by articulable facts that criminal activity 'may be afoot.' " United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

In deciding whether a stop was supported by reasonable suspicion, the court must consider whether "in light of the totality of the circumstances, the officer had a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Berber-Tinoco, 510 F.3d 1083, 1087 (9th Cir.2007) (internal quotation marks and citation omitted).

Deputy Cypher and Officer Bickel had well-founded suspicions of criminal activity originating in Basher's camp. The record indicates, and the district court found, that Deputy Cypher determined that the firing originated from Basher's dispersed campsite. Although Officer Bickel did not know initially where the firing came from, he was able to interview witnesses and determine that the firing came from the Basher's dispersed campsite. The witness reports received in person by the officers appear to have been credible, and provided a legitimate basis for investigating, although the officers did not write down the witnesses' names. See United States v. Palos-Marquez, 591 F.3d 1272, 1275-77 (9th Cir.2010) (holding that an in-person tip can be sufficiently reliable to justify an investigatory stop).

Basher has attempted to portray the officers as merely acting upon a hunch. However, it appears from the record that there were specific and articulable facts that led each officer to believe that the shooting and campfire should be investigated. It is noteworthy that it appears from the record that each officer decided independently to pursue this matter.

Basher has argued that by the time the officers arrived at the dispersed campsite there was no longer a reason to investigate under Terry because the illegal acts had ceased. However, it was reasonable to believe...