UNITED STATES of America, Plaintiff-Appellee, v. Frank William RUCKMAN, Defendant-Appellant, 806 F.2d 1471

MCWILLIAMS, Circuit Judge. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument.

Frank William Ruckman was convicted August 7, 1985, by a jury for the unlawful possession of destructive devices within the meaning of 26 U.S.C. § 5845(f)(3), namely, the possession of 13 anti-personnel booby traps which were not registered to Ruck-man in the National Firearms Registration and Transfer Record as required by 26 U.S.C. § 5841, all in violation of 26 U.S.C. § 5861(d). Ruckman was given a suspended sentence and placed on probation for three years. Ruckman now appeals. We affirm.

Prior to trial, Ruckman moved to suppress the use at trial of any and all physical evidence seized in a warrantless search of his “home.” This search resulted in the seizure, inter alia, of the items which formed the basis for the charge above referred to. No testimony was offered at the hearing on the motion to suppress, counsel for Ruckman and the United States being in apparent agreement as to the critical facts. After argument of counsel, which included considerable colloquy between counsel and the court, the court, by minute order, denied the motion without any comment.

Accordingly, we do not have benefit of the trial court’s thinking on the issue raised. From the record, it is agreed that the “home” which was searched by the authorities was a “cave” located in a remote area some 24 miles northeast of St. George, Utah, on land owned by the United States and controlled by the Bureau of Land Management (BLM). It is referred to as being a “natural cave,” as opposed, apparently, to a “man-made cave.” Ruckman had lived in and around the cave some eight months prior to the events which formed the basis for the present proceeding.

Ruckman had attempted to “enclose” the cave by fashioning a crude entrance wall from boards and other materials which surrounded a so-called “door.” The fact that Ruckman was living in the cave area apparently became known to the local authorities. A state warrant calling for Ruckman’s arrest issued when Ruck-man failed to appear in state court to answer a misdemeanor charge. State and federal authorities later went to the cave area to arrest Ruckman on the state warrant. When the authorities arrived at the scene, Ruckman was nowhere to be found. In this setting, the authorities searched the cave.

Certain firearms were found and seized. About this time, Ruckman appeared on the scene, and he was arrested and given his Miranda warning. Asked if there were any other weapons in the cave, Ruckman stated that there was a “shotgun in the comer.” The shotgun was located and seized. Ruckman was then taken to the local jail. Eight days later, the BLM agents and local authorities returned to the cave to “clean it out” and remove Ruckman’s belongings. In cleaning out, the authorities found, and seized, the anti-personnel booby traps which formed the basis for the present prosecution.

Counsel agree that the ultimate issue is whether Ruckman had a right under the Fourth Amendment to be free from search, without a warrant, of his “home,” in this case a natural cave, and counsel further agree that the more immediate issue is whether Ruckman had a subjective expectation of privacy in the cave, and, if so, whether his expectation is one which society is prepared to recognize as being reasonable under the circumstances. Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967). See also Rakas v. Illinois, 439 U.S. 128, 151, 99 S.Ct. 421, 434, 58 L.Ed.2d 387 (1978).

We shall assume that Ruckman entertained a subjective expectation of privacy, i.e., absent a search warrant or probable cause or exigent circumstances, none of which is contended for by the government, his cave could not be searched by any law enforcement officers without violating Fourth Amendment rights. However, the record, as we read it, contains no statement by Ruckman that he had any subjective expectation of privacy. Perhaps the filing of the motion to suppress presupposes such subjective expectation. In any event, we assume such subjective expectation. No doubt Ruckman would so testify.

The real issue is whether such subjective expectation is reasonable under the circumstances of the case. Stated differently, the issue is whether the cave comes within the ambit of the Fourth Amendment’s prohibition of unreasonable searches of “houses.” Under the circumstances, we conclude that Ruck-man’s cave is not subject to the protection of the Fourth Amendment. Ruckman was admittedly a trespasser on federal lands and subject to immediate ejectment. With respect to its own lands, the government has the rights of an ordinary proprietor, i.e., to maintain its possession and to prosecute trespassers.

United States v. Osterlund, 505 F.Supp. 165, 167 (D.Colo.1981), aff’d, 671 F.2d 1267 (10th Cir.1982). While he had been living off the land for several months, the cave could hardly be considered a permanent residence. Counsel himself describes Ruck-man as “just camping out there for an extended period of time.” Ruckman’s subjective expectation of privacy is not reasonable in light of the fact that he could be ousted by BLM authorities from the place he was occupying at any time.

While it has been often stated, the Fourth Amendment protects people, and not places (Katz, supra, 389 U.S. at 353, 88 S.Ct. at 512), any determination of just what protection is to be given requires, in a given case, some reference to a place. And the place in this instance was on federal (BLM) land. The government’s authority over federal lands has been clearly stated by the Supreme Court. “[T]he power over the public land thus entrusted to Congress is without limitations.” United States v.

San Francisco, 310 U.S. 16, 29, 60 S.Ct. 749, 756, 84 L.Ed. 1050 (1940), reh’g denied, 310 U.S. 657, 60 S.Ct. 1071, 84 L.Ed. 1420 (1940). This power derives from the Constitution. “[A]rticle IV, § 3, cl. 2 of the Constitution provides that ‘the Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory and other Property belonging to the United States.’ ” Id.

A necessary ancillary to this regulatory power over lands within the public domain is the power to control their occupancy and use, to protect them from trespass and injury and to prescribe the conditions upon which others may obtain rights....” Utah Power & Light Co. v. United States, 243 U.S. 389, 405, 37 S.Ct. 387, 389, 61 L.Ed. 791 (1917). The Fourth Amendment itself proscribes, inter alia, an unreasonable search of “houses.” Without belaboring the matter, we decline to hold that the instant case comes within the ambit of the Fourth Amendment.

The fact that Ruckman may have subjectively deemed the cave to be his “castle” is not decisive of the present problem. As a Ninth Circuit case involving invalid mining claims on public lands pointed out, “[A] person, under the guise of repeatedly locating invalid mining claims, may not use public lands primarily for residential purposes.” United States v. Allen, 578 F.2d 236, 237-38 (9th Cir.1978). We do not regard the circumstances underlying the “public telephone booth” (Katz, supra) or “public restroom” (People v. Triggs, 95 Nev. 436, 506 P.2d 232 (1973)) cases to be of particular relevance.

The “open field” cases perhaps have more relevance. In explaining the distinction between “open fields” and the “certain enclaves” which should be free from arbitrary government interference, the Supreme Court has noted that, as a practical matter, “open fields” usually are accessible to the public and the police in ways that a home, an office or commercial structure would not be. Oliver v. United States, 466 U.S. 170, 179, 104 S.Ct. 1735, 1741, 80 L.Ed.2d 214 (1984).

This Court has found that a person has no legitimate expectation of privacy even in his own private property where that property is surrounded by barbed wire fences, even if there are “No Trespassing” signs posted. United States v. Rucinski, 658 F.2d 741, 743-46 (10th Cir.1981), cert. denied, 455 U.S. 939, 102 S.Ct. 1430, 71 L.Ed.2d 649 (1982). Other cases with some degree of relevancy include People v.

Sumlin, 105 Misc.2d 134, 431 N.Y.S.2d 967 (1980), in which the New York County Supreme Court held that a casual guest of the employee of a squatter in a city-owned abandoned building did not have any expectation of privacy and that defendant, as a trespasser who was wrongly on premises, could not claim Fourth Amendment violation of rights. Id., at 969-70. In People v. Smith, 113 Misc.2d 176, 448 N.Y.S.2d 404 (1982), the court held that even if defendant was a subtenant, he could not derive any rights from one who has none, i.e., a squatter. Id., 406.

A case having perhaps greater relevance than those above cited is Amezquita v. Hernandez-Colon, 518 F.2d 8 (1st Cir.1975), cert. denied, 424 U.S. 916, 96 S.Ct. 1117, 47 L.Ed.2d 321 (1976). There “squatters” moved onto land owned by the Commonwealth of Puerto Rico and built structures thereon. When the government threatened to oust them, the squatters brought a civil rights action seeking injunctive relief and damages. The district court ruled for the squatters. On appeal, the First Circuit reversed.

In holding that the squatters had no reasonable or legitimate expectation of privacy, the First Circuit opined that, under the circumstances of that case, a claim that the squatters had a reasonable expectation of privacy was “ludicrous.” Amezquita, supra, at 11. (Legitimacy of a privacy claim is determined by the totality of the circumstances. Ra-leas, supra, 439 U.S. at 152, 99 S.Ct. at 435. The test of legitimacy is not whether the individual chooses to conceal assertedly “private” activity but whether the government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment.

Oliver, supra, 466 U.S. at 182-83, 104 S.Ct. at 1743.) Further, considering what constitutes a “home” for Fourth Amendment purposes, the First Circuit commented as follows: But whether a place constitutes a person’s “home” for this purpose cannot be decided without any attention to its location or the means by which it was acquired; that is, whether the occupancy and construction were in bad faith is highly relevant.

Where the plaintiffs had no legal right to occupy the land and build structures on it, those faits accom-plis could give rise to no reasonable expectation of privacy even if the plaintiffs did own the resulting structures. Amezquita, supra, at 12. Judgment affirmed.