Unpublished Disposition, 923 F.2d 863 (9th Cir. 1991)

MEMORANDUM^** 

Leonard Andrews, a felon, appeals his conviction for possessing a 12-gauge shotgun, a violation of 18 U.S.C. § 922(g) (1). We affirm.

Inyo County Sheriff, John Eropkin, received reports that miners had been turned away by armed individuals from the "4M" mining site in the Panamint Valley. Eropkin and three other sheriffs were flown into the rugged, remote area in search of the 4M site, which is located on public lands. The sheriffs set up two surveillance points, 50 yards apart, about 150 yards from the site. Using a 7-power pair of binoculars, a 20-power telescope and a 35mm camera with a 500mm lens, the sheriffs observed and photographed Andrews, whom they had seen firing a 12-gauge shotgun.

Andrews argues the observations made and photographs taken by the sheriffs were used at trial in violation of the fourth amendment. It is well established, however, that an officer's discovery of something through the use of his senses from a permissible vantage point does not constitute a search under the fourth amendment. There is no legitimate expectation of privacy in objects or activities that are in plain view. California v. Ciraolo, 476 U.S. 207, 213 (1986); see also Katz v. United States, 389 U.S. 347, 351 (1967) ("What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection."); United States v. Alfonso, 759 F.2d 728, 743 (9th Cir. 1985) ("Under the plain view doctrine, visible evidentiary items may be seized by officers lawfully on the premises.").

That the officers used binoculars and scopes to enhance their vision did not invalidate their observations. See United States v. Allen, 675 F.2d 1373, 1381-82 (9th Cir. 1980) (" [T]he use of aids to the senses such as binoculars does not convert unobjectionable surveillance into a prohibited search."). Here, all of the observations involved activities or objects in plain view. Anyone can enter the federally-owned lands in question. That Andrews took steps to go to a remote area of public land to hide his criminal activity does not make his expectation of privacy reasonable under the fourth amendment. See Ciraolo, 476 U.S. at 212 (" [T]he test of legitimacy is not whether the individual chooses to conceal assertedly 'private' activity, but instead whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment."). The surveillance was not tainted by the officers' desire to protect themselves by observing from a distance what anyone could have seen with the naked eye.

Andrews also argues the district court "effectively" found the evidence insufficient for a conviction. He bases this argument on a few of the court's statements taken out of context. The court erroneously thought the government could appeal if the court granted Andrews' motion for an acquittal for insufficient evidence. The court stated, "if the Court should grant the motion, certainly there would be an appeal and there's a good chance it would overturned on appeal." While that statement is incorrect as a matter of law, it nevertheless indicates the court felt the evidence was sufficient to support the verdict. Although a few of the court's statements were similarly confusing, none of them indicated the government's evidence was insufficient to support the verdict. For example, the court stated:

With regard to the Rule 29 motion, you know the rules as well as I do; and that is, if there's any evidence from which a jury could return a verdict for the government at this stage, the Court must deny the motion....

Well, I'm counting on the fact that the jury will not return a verdict of guilty, because then I will really have a tough decision to make, and I think we will just let the jury have a crack at it.

The district court's judgment is AFFIRMED.