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Name: People v. Nishi
Case #: A129724
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 07/13/2012

A warrantless search of a campsite does not violate the Fourth Amendment when a person is not legitimately on the premises and is aware that occupying the premises without consent is illegal. In 2010, appellant sent e-mails to the Department of Defense complaining that Department of Fish and Game personnel had unlawfully shot protected mountain lions and that he was armed and would fire on all sheriffs and Fish and Game personnel. The e-mail was forwarded to local agencies who advised their staff to take precautions. A deputy sheriff located appellant on a preserve and arrested him. Appellant’s campsite was searched and shotgun shells were located and seized from a tarp surrounding the tent. The warrantless search did not violate the Fourth Amendment. Appellant had no reasonable expectation of privacy because he was not lawfully or legitimately on the premises. Camping on the preserve was prohibited without a permit and appellant did not have one. Because he previously had been cited for illegal camping and evicted from other campsites in the preserve, he was conscious of the illegality. Appellant was not in a position to legitimately consider the campsite as a place society recognized as private to him.

Substantial evidence supports a Penal Code section 69 (resisting an executive officer) conviction when a person e-mails a threatening message with the intent to deter officials from performing their duties and it may be inferred that he intended that the message would be conveyed to the intended targets. Appellant was convicted of section 69, with the conduct in question being the e-mail he sent to the Department of Defense. The appellate court, observing that appellant had not raised a First Amendment argument, evaluated the conviction under a substantial evidence test, and found that it was supported by the evidence. Penal Code section 69 sets forth two ways the offense can be committed; the first is by threats to prevent an officer from performing a duty imposed by law, also known as attempting to deter, and the second is by resisting an officer by force or violence in the performance of his duty. Here, the case against appellant was based on the first form of violation of section 69. The evidence demonstrated that appellant intended to deter officials from patrolling or otherwise performing duties in the preserve by threatening to “fire on” them if they appeared. Appellant essentially acknowledged this when he told a sheriff’s deputy that the e-mail “worked” by keeping officers off the preserve. Section 69 does not require that the threat be transmitted separately or directly to the intended victim or that defendant have the present ability to carry it out, only that it deterred performance of a duty. The inference may be drawn that appellant intended that the threatening message would be conveyed from the Department of Defense to the intended law enforcement targets.