People v. Nishi
2012 WL 2870591, 143 Cal. Rptr. 3d 882, 207 Cal.App.4th 954 (2012)
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Rule of Law:
A person has no objectively reasonable expectation of privacy under the Fourth Amendment in an unauthorized campsite on public land, especially for items found outside a tent, if they are trespassing and aware of their illicit occupation. Furthermore, a threat sent via email to a federal agency that is subsequently relayed to local law enforcement can constitute an attempt to deter an executive officer in the performance of their duty, even without direct communication or present ability to carry out the threat, as long as it expresses specific intent to deter.
Facts:
- On March 27, 2010, Charles Byon Nishi, referring to himself as "The Shepherd," sent an "EMERGENCY COMMUNICATION" email to the United States Air Force Freedom of Information and Privacy Act Office of the Department of Defense.
- In his email, Nishi complained about California's Department of Fish and Game unlawfully shooting mountain lions and stated, "I am armed and will now fire on all Sheriff and Fish & Game after this email so either shut them down or put some boots on the ground to join the battle."
- The Department of Defense forwarded Nishi's email to the Marin County Sheriff’s Department on March 29, 2010.
- Deputy Sheriff Christopher Henderson, after reviewing the email and finding it a "credible threat" and "safety issue," issued an "Officer Safety/Welfare Check" bulletin to regional law enforcement agencies, including a description and photograph of Nishi and the warning that he would "fire on" personnel.
- As a result of Nishi's email and the bulletin, the superintendent of the Indian Valley Open Space Preserve directed his staff not to go into the preserve, and the regional manager for the Department of Fish and Game advised his staff not to wear uniforms and to be more vigilant.
- On March 31, 2010, Marin County Deputy Sheriff Brenndon Bosse, who had prior contacts with Nishi regarding illegal camping, located Nishi at a fire road in the Indian Valley Open Space Preserve, where camping was prohibited without a permit.
- Nishi confirmed he sent the email and exclaimed that it "worked" by keeping officers "off the preserve."
- Nishi had been cited for "illegal camping" and evicted from other campsites in the same preserve on at least four or five recent occasions.
- During a subsequent search of Nishi’s campsite, which was an unauthorized, undeveloped site, Deputy Bosse discovered boxes of new shotgun shells under a tarp next to a tent.
Procedural Posture:
- Charles Byon Nishi was charged with one count of attempting to deter or resist an executive officer in the performance of duty in violation of Penal Code section 69, and additional counts of making criminal threats (§ 422).
- Nishi filed a pretrial motion to suppress evidence, which the trial court denied.
- A jury found Nishi guilty of the Section 69 charge and acquitted him of the criminal threats charges.
- The trial court imposed a probation condition requiring Nishi to undergo a psychological evaluation and take medication as directed by a physician.
- Nishi appealed his conviction to the California Court of Appeal, First District, challenging the denial of his motion to suppress evidence, denial of the right to testify, sufficiency of the evidence for conviction, the imposed probation condition, instructional error, and improper denial of his motion for self-representation.
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Issue:
1. Does a defendant who is unlawfully camping on public land have a reasonable expectation of privacy in their campsite, including items found outside their tent under a tarp, such that a warrantless search violates the Fourth Amendment? 2. Does an email containing a threat of violence, sent to a federal agency and subsequently relayed to local law enforcement, constitute an attempt to deter an executive officer from performing their duties under Penal Code section 69, despite a First Amendment defense?
Opinions:
Majority - Dondero, J.
No, a defendant unlawfully camping on public land does not have a reasonable expectation of privacy in their campsite, especially for items found outside their tent under a loose tarp, and Yes, an email containing a threat of violence sent to a federal agency and relayed to local law enforcement can constitute an attempt to deter an executive officer under Penal Code section 69. The court reasoned that Nishi had no objectively reasonable expectation of privacy in his campsite because he was a trespasser on public land, camping without authority and in bad faith. The Fourth Amendment's protection for a legitimate expectation of privacy does not extend to premises where an individual is wrongfully present. Unlike cases involving legally permitted camping, Nishi was clearly aware of the illegality of his occupation, having been cited and evicted multiple times previously. Furthermore, the shotgun shells were found outside his tent, under a loose tarp in a dispersed, ill-defined campsite, not within a defined residential curtilage. The court found persuasive precedent in cases like U.S. v. Ruckman, which held that a trespasser on federal land living in a cave did not have Fourth Amendment protection. Regarding the Section 69 conviction, the court found substantial evidence to support it. Nishi's statement in the email that he was armed and would "fire on all Sheriff and Fish & Game" constituted a direct threat of unlawful violence, which is not protected speech under the First Amendment. The specific intent to deter officers was demonstrated by the email's content and Nishi's subsequent statement to Deputy Bosse that the email "worked" by keeping officers "off the preserve." The fact that the email was not sent directly to the local law enforcement agencies but was relayed by the Department of Defense did not negate the proof of an attempt to deter or the requisite specific intent, as the statute does not require direct personal communication of the threat. The court emphasized that Section 69 does not require the defendant to have the present ability to carry out the threats, only that the threats were made with the intent to deter.
Analysis:
This case clarifies the limits of Fourth Amendment privacy protections for individuals occupying public land unlawfully, especially for those with a known history of trespass. It reinforces that a 'legitimate expectation of privacy' is fundamentally tied to lawful presence. For Penal Code section 69, the ruling broadens the understanding of 'attempt to deter' by affirming that threats do not need to be directly communicated to the victim and do not require the defendant to have the immediate ability to carry them out. This has significant implications for how law enforcement can respond to threats made indirectly through third parties, particularly in the digital age.
