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United States of America v. Michael Emery Basher

January 20, 2011

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
MICHAEL EMERY BASHER, 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

The opinion of the court was delivered by: Mills, Senior District Judge:

FOR PUBLICATION

OPINION

Argued and Submitted May 6, 2010-Seattle, Washington

Before: Kim McLane Wardlaw and Ronald M. Gould, Circuit Judges, and Richard Mills,*fn1 Senior District Judge.

Opinion by Judge Mills

OPINION

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*fn1 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 camp-site. 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 ...


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