Criminal
possession of a weapon in New York City is a serious
crime. A true criminal possession of a weapon case in New York should
not be confused with a case in which a person is charged with criminal
possession of a weapon, but the underlying case is really bigger.
For example, a person charged with attempted murder (using a gun) may
be charged with criminal possession of a weapon as well as the
attempted murder. The attempted murder charge is likely to be far more
serious and carry with it a far more serious sentence than the
additional charge of criminal possession of a weapon.
A "pure" criminal possession of a weapon case (gun
case) in New York will be a situation in which the only (or the most
serious) charge against the defendant is criminal possession of a
weapon of some degree. In other words, the defendant will be charged
with possessing one or more guns and nothing else.
In New York criminal possession of a weapon, for the
purposes of "gun cases" is classified into three "degrees" or levels
of seriousness. Criminal Possession of a Weapon in the Second Degree,
Third Degree, and Fourth Degree.
Criminal Possession of a Weapon in the Second Degree is
a class C felony, Third Degree is a class D felony, and Fourth Degree
is a class A misdemeanor.
The class C felony is punishable by a maximum of 15
years in prison, the D felony by a maximum of 7 years in prison, and
the A misdemeanor by a maximum of 1 year in jail. Also, there is a
theoretical 1 year mandatory jail sentence on any felony gun
conviction.
Conviction of a criminal possession of a weapon case can also
create significant problems for a defendant who is not a citizen, even
if the defendant is a legal resident. Weapons (especially guns)
convictions can cause a non-citizen to be deported, denied
citizenship, or excluded from legal entry to the United States at the
border. This can be true even if the conviction is for the A
misdemeanor criminal possession of a weapon in the fourth degree. Of
course a qualified immigration lawyer needs to be consulted with
respect to any individual situation, but a non-citizen who is
contemplating pleading guilty even to the misdemeanor form of criminal
possession of a weapon needs to be aware of the potential
difficulties.
Return to Top of Article
Different Types of Gun Cases
There are a few major types of gun cases recognized by New York City
criminal defense practitioners. Most pure gun cases will fall into one
of these categories and each category is treated a little differently
by the District Attorney's Office. Gun cases are also an
extremely important sort of criminal case.
1. The Airport Gun Case
2. The "gun in a car" Case
3. The search warrant case
1. Airport Gun Cases
New York City is home to not one but two major
international airports (both in Queens County). New York City is also
home to some of the strictest and harshest gun control legislation in
the nation. Add to this the fact that the major airlines do very
little to make prospective carriers of handguns aware that the Federal
regulations with respect to transportation of handguns on airplanes do
not govern New York and you have a recipe for serious problems.
Here is how it works: Passenger lives in a state where
gun control laws are not as strict as New York, like say, Texas. In
Texas, it is probably illegal not to carry a weapon. Passenger wants
to travel by airplane with his gun as he has done a million times
before to other southern states. He does everything by the book
alerting the airline in advance and checking for the appropriate
procedures.
This time, however, he is traveling to New York City. So this time he
actually contacts the airline and asks for instructions. They give him
instructions. He follows the instructions. He has all the paperwork,
all the licenses, all the everything he needs to be in legal
possession of that gun in Texas and probably 23 other states, except
unfortunately, New York. The airline information people provide him
with the Federal rules about which they are primarily concerned but do
not provide him the information about New York State specific rules.
Is Passenger careless for not paying closer attention
to the rules? Should he have been more careful about making sure that
everything would be ok in New York? Absolutely. Unfortunately for
Passenger, however, aside from being so careless, he is, the moment
the plane lands in New York City, probably guilty of a violent felony
offense in New York City (and he has NO LEGAL DEFENSE).
This scenario, or a version of it, plays itself out
fairly frequently in New York City. At Shalley & Murray alone, we have
handled quite a few of these sorts of cases and we are but one small
new york city criminal law firm. Many people, including celebrities
have been caught up in versions of this scenario, including Harry
Connick Jr. and Axl Rose.
One might expect that the frequency with which this
scenario occurs and the sort of clear absurdity of it would suggest
that the District Attorney's Office would routinely treat these cases
as they seem to deserve to be treated. The reality, however, is that
the District Attorney's Office takes these cases extremely seriously.
They can often be quite difficult to "negotiate away".
One of the difficulties in cases within this general
scenario is that the District Attorney's Office has (legally) a very
strong case. There is virtually no legal defense to these cases
despite how ridiculous it might seem that someone with a license in 23
states who follows all the directions that the FAA and the airlines
told him could be guilty of a violent felony offense.
Therefore, the District Attorney's Office has a great deal of
bargaining power when determining how or whether to negotiate. If they
choose, they can adopt a hostile "take it or be indicted for a violent
felony for which there is a mandatory state prison sentence) approach.
This is not to say that they will adopt such a hostile approach. But
in negotiating these cases, one must keep in mind that the District
Attorney's Office has this over the head of the defendant.
The one bit of room the Passenger in this scenario has
is that he may be able to take advantage of the
Grand Jury process in a way that
most defendants can not. Defendants facing felony gun possession
charges in this circumstance are often good candidates for testifying
in the Grand Jury if the case gets that far. The Grand Jury is of
course normally not a terribly defendant friendly procedure for a
variety of reasons. Furthermore, as I mentioned before, the Passenger
in this scenario really hasn't much of a LEGAL defense. So why on
earth would Passenger want to testify before the Grand Jury and
virtually confess to the crime?
…because members of the Grand Jury are human beings who are likely to
have little use for indicting Passenger for a felony under these sorts
of circumstances. It is not uncommon for Grand Jurors in cases such as
this to refuse to indict.
Keep in mind that a decision to testify in the Grand
Jury in this sort of situation is a HUGE decision and one that
ABSOLUTELY MUST BE MADE ON A CASE BY CASE BASIS WITH AN EXPERIENCED
CRIMINAL DEFENSE ATTORNEY. The defendant must understand the risks
involved and must understand that his testimony before the Grand Jury
under oath is arguably admitting to all of the necessary elements of
the crime.
NOT EVERY GUN CASE, EVEN IF IT IS AN AIRPORT GUN
CASE, IS A GOOD CANDIDATE FOR GRAND JURY PRESENTATION. UNDER NO
CIRCUMSTANCES SHOULD ANYTHING IN THIS ARTICLE BE TAKEN TO MEAN THAT
SHALLEY & MURRAY RECOMMENDS THAT ALL DEFENDANTS IN AIRPORT GUN CASES
TESTIFY IN THE GRAND JURY. IN DISCUSSING THE POSSIBILITY OF A GRAND
JURY PRESENTATION UNDER THESE CIRCUMSTANCES, I MEAN ONLY TO DESCRIBE
THE ONE SMALL AREA OF BARGAINING POWER A DEFENDANT IN SUCH A
CIRCUMSTANCE HAS.
The District Attorney's Office is aware of this risk,
but is certainly more than willing to take it if the assistant
handling the case believes there is sufficient justification to
prosecute the case as a felony.
In such cases, the hope is that through concerted
negotiation a mutually agreeable resolution of the matter would be
possible.
In any event, a person who has been arrested in one of
these airport gun cases needs an experienced criminal defense lawyer.
Return to Top of Article
Gun in a Car
Another frequent type of gun case is the "gun in a car"
case. The gun in a car case presents a significant opportunity for
injustice as the result of a combination of the reality of
police-citizen interactions and a number of laws passed just for gun
cases that most people would find startlingly unfair.
Here is the problem as the Government saw it:
Guns are small and easily hidden in cars. Cars are very
mobile. When inside a car a person is likely to hide the gun somewhere
out of sight (although, judging from police testimony and police
reports, people in New York seem to be generally oblivious to this
strategy).
Furthermore, if the gun is located by a police officer
somewhere inside a car, all of the passengers in the car (if there is
more than one) are likely to say, "not mine". In such a circumstance
it might be very difficult for the Government to convict someone of a
crime even though the Government knows that at least one person in the
car probably committed the crime of illegal weapon possession.
This distressed the Government a great deal.
The New York State Legislature, just like other state
legislatures around the country, came up with an ingenious solution.
They developed a series of "presumptions" that would apply whenever a
gun is found in a car. These presumptions would relieve the Government
of the sticky business of actually having to have direct proof that a
person committed a crime.
For example, in New York, when an illegal gun is found
in a car (and I mean anywhere in or on or about a car, including
secret compartments in the trunk of the car) EVERY SINGLE PERSON IN
THAT CAR, whether there are 2 or 202 people in the car is PRESUMED to
be in possession of that gun. Every single person in that car can be
indicted, brought to trial, and convicted based only on proof of the
fact that the person was in the car and that the gun was in the car at
the same time.
Now the New York Legislature, as well as other state
legislatures realized that this business of PRESUMPTIONS when actual
proof is lacking might pose a problem to those who would try to
pervert our Constitution into a stumbling block to efficient justice.
The New York State Legislators remembered something from 5th Grade
about proof beyond a reasonable doubt and the presumption of
innocence. These two lofty, technical principles represented something
of an obstacle to the more pressing need to make sure that people who
hide guns in cars can't get away with it by relying simply on saying,
"not mine" when the gun is found under their seat.
But our legislators were a clever group of lawmakers
and discovered a magic word that, as long as they used it, would trick
the old fogies in our appeals courts into letting their PRESUMPTIONS
stand. This magic word was "PERMISSIVE." You see they realized that if
they simply said that the PRESUMPTION was PERMISSIVE and not
MANDATORY, then the presumption did not run afoul of the presumption
of innocence or the requirement for proof beyond a reasonable doubt.
They realized that they could create a situation in
which at the end of the trial, AFTER all the lawyers spoke, the judge
would be allowed to tell the jury that despite everything else they
heard, they are allowed (but not required) to find that all of the
occupants of a car possessed the gun found in the car as long as they
believed that the occupants were in the car at the same time as the
gun. This statement from the judge, among the LAST things a jury will
hear before it is released to decide the case, would be completely
acceptable, just as long as the judge said that they "may" use this
presumption.
Now, armed with this presumption, the Government no
longer needs to worry about whose gun it was that was found in the
center console of the car. Was it the driver's? It doesn't matter -
they have the presumption. Was it the front seat passenger's? It
doesn't matter - they have the presumption. Was it the rear
passenger's? You guessed it. It doesn't matter - they have the
presumption.
Every single occupant of the car can now be found
guilty simply based on the presumption. What a relief for the
government!
Now all the government has to prove is that the gun was
in the car (that's easy enough, "Officer where did you find the gun?")
and that all the defendants were in the car (easy again, "Officer
where were the defendants before you found the gun in the car?") It
just doesn't get any easier than that.
Just apply the presumption and presto, everybody's guilty. Efficiency
thy name is PRESUMPTION. It's not the Government's problem anymore now
that the Government has the presumption.
Whose problem is it? Anyone who happens to be an
occupant of the car. This is great news for the Government because it
not only resolves the problem of actually proving something specific,
but it makes it easy by requiring proof of two things they will have
no trouble proving: the gun was in the car and the occupants were in
the car.
It is not so great news for those of us foolish enough
not to perform detailed inspections (including inspections for
exterior secret compartments) of the cars we get into or borrow. Those
of us who are foolish enough to enter or borrow a vehicle (even for a
very short trip) without first inspecting it for guns are running the
risk of being caught up in some major difficulties. If a gun is
recovered from the car while we are in it, we are in big trouble.
You see, in practice, the police are not terribly
discriminating when they find an illegal gun in a car. Even if one
person leaps up and says, "I cannot let my friends be held accountable
for my own wrongdoing. It is my gun and mine alone," the police are
not bound to accept this. In fact, they rarely do. In fact there is at
least one good reason why they are not bound to accept this.
There can be myriad reasons, unrelated to the truth,
why an occupant of a car might leap up and say such a thing. Perhaps
another occupant, who is bigger and stronger than he is just
whispered, "If you don't say it was your gun I am going to kill you."
Perhaps the volunteer is under 18 and expects that if he "takes the
heat" he will be treated lightly. The police are not required to
accept as truth what might well be the agreed upon plan of multiple
people who all may have been a participant in the criminal enterprise
of possessing an illegal gun.
Furthermore, even if the police were inclined to
believe the person who "confesses" to possession of the weapon, the
police have a vested interest in arresting the entire group inside the
vehicle: money and prestige. If one felony is great for your stats and
overtime, then 3 felony arrests is even better.
Therefore, if you are foolish enough to enter a vehicle
in New York without first thoroughly inspecting it for illegal guns,
then you are taking a substantial risk if in fact you are unlucky
enough to be stopped by the police and if the car is searched and an
illegal gun is found.
You will almost certainly be arrested and prosecuted
for a felony as if it were your gun, and, thanks to the PRESUMPTION,
if you go to trial, you stand a substantial chance of being convicted.
Imagine the power for a moment, if you will, of the judge turning to
the jury at the end of the case and saying (essentially), "Despite
everything else you have heard during this trial, if you believe the
defendant was in the car, AND if you believe the gun was in the car at
the same time, you may conclude that the defendant was in possession
of the gun." Realize that in most of these cases, there will be two
facts that are absolutely NOT in dispute: 1) The defendant was in the
car and 2) The gun was in the car at the same time.
Occasionally, the District Attorney's Office will take
into account one occupant's position that the gun was his.
Occasionally the District Attorney's Office will take this into
consideration to the point that they will actually dismiss the charges
against any other occupant of the car. The key word here, however, is
OCCASIONALLY. Remember, the District Attorney's Office is not bound to
accept one occupant's statement that "the gun was his" for the reasons
discussed above.
Occasionally, the District Attorney's Office will take
into account one occupant's position that the gun was his, but instead
of dismissing the case against the others, offer a less serious plea
bargain. This can be a particularly distressing concept for the
occupant who is being offered the less serious charge. This person is
probably someone who is claiming that he had no idea that the gun was
in the car and who is also probably aware that another person is
claiming responsibility
Often times the insistence by the District Attorney's Office on this
resolution will be driven by the defendant's prior criminal history.
As a general rule, a person with a prior criminal history is not
likely to be given the "benefit of the doubt" in a gun in a car case,
even when another person is offering to "take the rap." Often the
District Attorney's Office will insist on something, even if it isn't
a felony.
In such a situation, the defendant will have to measure his distaste
for accepting partial responsibility for the gun against his distaste
for going to trial in the face of the Government's PRESUMPTION. In
many cases, defendants fear going to trial against the presumption.
The Assistant District Attorneys are well aware of the power of the
PRESUMPTION and will use it to their advantage in plea negotiations.
Gun in a car cases do not represent difficult cases to
try for the Government. Essentially, they must prove that an operable
gun was in the car and that the defendants were in the car at the same
time. A first year law student could do it. A high school student with
a day's training could do it.
On the other hand, gun in car cases represent a means
to put people away for substantial periods of prison time.
Most of the time, a criminal possession of a weapon
felony in New York will be considered violent. That means there will
be a mandatory minimum prison term
associated with a conviction, even for a first arrest. More and more,
the Government will indict these gun cases under an "intent to use
unlawfully against another" theory that makes it a C violent felony
for which there is a mandatory minimum even for a person with no
criminal history. Furthermore, the range for a first arrest C violent
permits sentences all the way up to 15 years.
Therefore, those defendants who choose to go to trial
against the Government's Presumption will often be risking at years in
state prison. That is a substantial risk to take when one considers
the power of the Government's Gun Presumption.
But wait, there's more…
Once our legislators tasted the sweetness of
Presumptions, they didn't stop just with the gun in a car presumption.
The world of gun cases is an entire world of
presumptions.
For example, it is a crime in New York to possess a
defaced weapon. But does the Government actually have to prove that
you knew it was defaced? NO! There's a
presumption for that too.
It is also a crime to possess a weapon with the intent
to use it unlawfully against another. But does the government actually
have to prove that your intent was to use it unlawfully against
another? NO! There's a presumption for that too.
That presumption, if it applies, is enough to up the ante of your
crime from a D to a C violent felony, exposing you to a mandatory
minimum.
Our state legislators gave the District Attorneys
wonderful tools to convict people of crimes by creating all these gun
case presumptions, and our appeals courts have told us that it's all
ok as long as they are "permissive" presumptions.
So ride in cars at your own risk residents of and
visitors to New York. Under the circumstances, entering a car makes
you presumptively responsible for any and all guns located within that
car which means you are presumptively going to state prison for up to
15 years.
Return to Top of Article
SEARCH WARRANT CASES
The final broad category of gun cases would be cases in
which guns are recovered as the result of a search warrant. In the
"typical" search warrant case, the police obtain a written
authorization from a judge to search someone's home.
When there is a search warrant, the issue of "probable
cause" or the police's "good reason" to want to explore someone's home
is actually determined up front. Therefore, the probable cause issue
is not typically something that will ever properly be the subject of
any legal motions or hearings on any resulting criminal case.
Presumably, the judge who grants the motion has already determined
that "probable cause" exists.
While I have not personally experienced the "execution"
of a search warrant, I have had it explained to me frequently enough
by people on the receiving end of the "execution" that I feel like I
have a pretty good idea of what search warrant executions are all
about.
Surprising people who are suspected of being criminals
in their homes is certainly a dangerous, risky business. As a result,
the police are quite legitimately concerned for their personal
physical safety during these "executions." Therefore, the police
routinely take a number of precautions that are designed to maximize
their safety as they enter someone's home. Most of these precautions
are designed to disorient anyone in the house at the time and to allow
the police to control the situation quickly.
For example, the police will frequently attempt to
obtain permission for what is called a "no-knock" warrant. A
"no-knock" warrant, as the name suggests, permits the police to
dispense with what is supposedly the presumed manner of executing a
warrant by knocking and announcing the presence of the police. It is
the difference between ringing the doorbell and saying, "Hello this is
the police. We have a search warrant for this house. Let us in or we
will huff and puff and blow the house down" and simply breaking down
the door and rushing inside.
The police much prefer the breaking down the door and
rushing inside approach for two significant reasons. First, it allows
them the element of surprise and therefore limits the time a criminal
would have to take steps to hurt the police officers. Second, it
minimizes the likelihood that any criminals inside would have time to
dispose of or destroy evidence before the police found them.
The United States Supreme Court has told us recently
that the practice of the police always asking for "no-knock" warrants
by simply writing the same boiler plate non-specific reasons for every
case is not sufficient. In practice, however, the police continue to
use extremely general boiler plate language in the application for
"no-knock" warrants and they are frequently granted.
In fairness to the judges who must decide these things, I think they
are primarily concerned for the safety of the officers who are
executing these warrants. The judges who decide these things are
presented with information and are not always in a position to know
the full details of the reliability of the information being presented
to them. It is hard, if not impossible, for the judges to know which
are the "real" cases and which are the less "real" cases based on the
barebones information they are provided in search warrant
applications.
So, while the United States Supreme Court's mandate not to rely on
barebones boilerplate applications for "no-knock" warrants is
certainly present, I think it is easy to understand how judges,
honestly motivated by a desire to help ensure that people don't get
hurt, might give the police a large amount of leeway when requesting
"no-knock" warrants. The issue illustrates an interesting issue with
respect to the level of government intrusion into the privacy of its
citizens that a free society can or should tolerate. I don't think
there is a specific right answer here. The way it plays out in Court,
I suppose will depend on the sense judges have of the tension between
the government's desire to preserve order and its citizens' rights of
privacy.
To come back to the world of the practical, the reality
is, for the time being, that most search warrants will probably be
"no-knocks" for now.
In addition to being "no-knock", warrants will
typically be executed as late at night as is permitted in the warrant
or as early in the morning. This is in keeping with the idea of trying
to have the people inside the house (or apartment) as disoriented as
possible. Disoriented people are less likely to be thinking clearly
and causing the police trouble.
The actual execution of a warrant is usually a
terrifying experience for anyone who is unfortunate enough to be
present. This again is by design. There is no polite discussion. There
is no debate. There is no reasoned review of the search warrant
documentation with the owner of the house. Doors are kicked in and
multiple armed, armored gunman explode into the house shouting and
screaming decisive unambiguous commands. The armed gunmen will
typically be shouting commands to order the occupants of the house to
get down on the ground. The commands will not be polite invitations
but clearly very serious orders from people who are making it clear
that they are prepared to use deadly force in order to see their
orders carried out.
This is not the time to attempt a discussion of any
kind with the police. The officers executing search warrants believe
quite strongly that they are engaged in a highly dangerous operation.
Therefore, they are likely to be extremely "intense". The entire
process is designed to be loud, confusing, violent, and disorienting.
Now when the victims of the execution of these warrants
are real criminals, perhaps we can all feel that the execution of
search warrants is the sort of treatment they deserve.
Unfortunately, the real world isn't often so neat,
tidy, and clear.
Search warrants are frequently executed in people's
homes where one or more members of the family are involved in
something illegal but others are not or have no control over it and
are at a loss for what to do. Real life is almost always a little
fuzzier than we like to believe.
The police officers executing search warrants, however,
pumped up for what they believe (rightly so) is a potentially
personally dangerous activity do not make fine distinctions as to how
to treat occupants of a house. At least in the beginning, grandma,
grandpa, and the ten year old little sister will quite likely find
themselves face down on the floor handcuffed and being shouted at.
This may or may not be official policy, but it happens.
Most people have little sympathy for the indignities of
search warrant execution on the theory that search warrants will only
be executed at locations where serious crimes are being committed and
that the people at those locations are not terribly deserving of much
sympathy. Notice, however, that this lack of sympathy is based on the
concept that search warrants will be executed only at locations where
serious crimes are being committed.
In the real world, however, search warrants are
frequently obtained based on information provided by "confidential
informants". Confidential informants are not often civic minded
upstanding citizens who are providing information to the police solely
for the betterment of society. Confidential informants are usually
criminals themselves who have been recently arrested for something
serious. Once faced with the prospect of spending the better part of a
decade in prison, they will frequently scramble to provide
"information" to the police in hopes of gaining a benefit far more
valuable than money - freedom. These confidential informants are
desperate people. They desperately want to avoid going to prison. They
have often led a life of depravity and crime. To imagine that, faced
with the prospect of providing "information" or going to prison for a
long time, they will always provide reliable information seems overly
optimistic.
The number of times I have spoken to people whose homes
have been ransacked as the result of a search warrant and the police
have found nothing more than a small amount of marijuana or
misdemeanor weight cocaine, seems to suggest that the reliability of
the information upon which search warrants are frequently obtained, is
not always as high as we all might hope.
The informant has an incentive to paint the object of
his treachery as a bigger criminal than he or she might really be. For
example, if the informant knows someone who smokes marijuana at home
from to time, the informant might pitch this person to the police as a
"major marijuana dealer". This makes the police interested and makes
it more likely that the police will believe that the information is
being "helpful". When the police execute a warrant and find only a
small bag of marijuana consistent with personal use, it is only
because the dealer had just happened to sell the truckload of
marijuana he usually keeps under his bed.
When the police do find illegal things during a search
warrant, they often have an easy time of it convincing the people in
the house to make all sorts of damaging statements. One favorite ploy
by the police is to use grandma and the 10 year old little sister as
pawns. The police will explain to the true target of their search (the
person they believe truly responsible for the guns, drugs or whatever
else) that unless he "cooperates" (translation - makes statements
conceding his guilt to serious felony offenses for which there may
well be mandatory state prison sentences) they will arrest grandma and
ten year old little sister will be placed with professional foster
parents caring for twelve "troubled" teens somewhere in New York City.
These are not idle threats either. I have been involved
in multiple cases where entire families, including the 80+ year old
grandma have been arrested and charged with serious felonies because
they all happened to be in the house when the police executed a search
warrant.
By the way, the reason the police are able to arrest
the 80+ year old grandma when they find something in the house as the
result of a search warrant is because of yet another PRESUMPTION (see
previous section on gun in car cases). Presumptions seem to follow
illegal guns around like little dogs.
This presumption says that if you are in a room in
which an illegal gun is found, you can be presumed to be in possession
of it, just as if it were found in a car in which you were an
occupant.
This runs into all sorts of knotty debates about where
people were when the search warrant was executed.
Having listened to a great deal of police testimony on
the locations of people and illegal things during search warrant
execution and having read countless police reports on the subject, I
have come to the inescapable conclusion that New York City harbors a
strange breed of criminals indeed.
It seems that, as a general rule, when New York City
criminals have illegal guns or drugs in their homes, they inexplicably
tend to congregate in the room where the illegal guns or drugs are
kept. Furthermore, they rarely keep their illegal guns and drugs in
secret locations, preferring instead to make sure they are plainly
visible to all the multitudes who are congregating in the room
(especially the police).
Of course after the fact, 80 year old grandma will have
the audacity to claim that she really wasn't in the basement with the
bag of cocaine and the 12 other family members at the moment the
search warrant was executed.
Search warrant cases tend to be either pretty good or
really exceedingly bad from a defense point of view. They are really
exceedingly bad when the kilo of cocaine is found underneath the
defendant's bed in the defendant's bedroom and the defendant was
sleeping in the bed at the time the search warrant is executed.
They can be better for the 80 year old grandma or the
person who happened to be visiting the home at the time the search
warrant was executed.
With a search warrant there is not likely to be any
ability to argue about the probable cause for the warrant since that
was decided up front by a judge. There are some substantial legal
issues in play in a search warrant case, although being successful on
any one of them is probably more of a longshot than being successful
at a traditional suppression hearing.
One issue with a search warrant can be the "staleness"
of the information that led to the issuance of a warrant. Warrants are
often obtained but not acted upon immediately. After a certain time
(to be determined on a case by case basis, not a specific number) it
is considered inappropriate to execute that warrant.
For example, assume that on January 2, 2003 the police
get a search warrant to search a home on the basis of information that
a kilo of cocaine was delivered to a location on January 1, 2003.
Armed with the warrant, the police go back to the Precinct and forget
about it for a while. On December 31, 2003, the police remember the
warrant and execute the search warrant (about one year later.)
That year old warrant would probably be considered
"stale" and a judge would probably find that its execution one year
later was improper.
Another issue with search warrants is the "scope" of a
warrant. Search warrants typically will describe a specific location
or locations to be searched. Without sufficient reason, it is improper
for the police to search beyond what is specifically described in the
warrant. For example, if the search warrant says that the house at
1313 Mockingbird Lane may be searched, it might be a "scope" problem
if the police search the house and then also search the legal
apartment over the garage that is rented to a third party.
There are a number of other issues related to the
execution of search warrants, but they are extremely technical,
abstract, and unlikely to come to anything favorable for a defendant.
While of course they are worth exploring in a real case, they are
beyond the scope of this introductory article.
Return to Top of Article
Why Gun Cases are Important
All criminal cases are vitally important of course, to
the person accused of a crime, and gun cases are no different from any
other type of case in that respect. But gun cases also frequently
involve issues that help define the very concept of freedom as we know
it in the United States. This is not an exaggeration. At a state
level, the day to day relationship between citizens of this country
and our Government can be measured by the way gun cases are dealt with
in criminal court.
This is not because there is something abstract about
guns. It essentially has to do with one quality that many guns share:
they are small enough to be easily hidden.
The fact that guns are small enough to be easily hidden
creates a sort of tug-of-war between the Government's desire to root
out illegal activities and the average American citizen's desire to be
able to go about his business free from worry about unpleasant
interactions with uniformed government agents, snarling hounds, and
requests for "papers".
At this sort of street level where the Government's
interests and the interests of its citizens meet is really where
freedom is defined. It is here at this level where citizens either are
free of unwarranted government intrusion or they are not.
Gun cases help to define the extent of this type of
personally felt freedom because there will often be disputes over how
the guns in question came to be discovered by the police. Here's why.
The Fourth Amendment to the United States Constitution
tells us that we citizens are to be free from warrantless search and
seizure, but it really doesn't offer much in the way of practical
street to street level advice on what this really means.
One big thing noticeably absent from the Fourth
Amendment is what to do when or if the Government violates this right.
Pretend for a moment that the police have violated a citizen's right
to be free from warrantless search and seizure (whatever that means).
So what? Where is the remedy?
As reality played itself out and government agents
began acting like agents of the government, it turned out that the
courts were being plagued with uncomfortable questions about how to
handle alleged violations of this Fourth Amendment. The Constitution
didn't say what should be done.
So the United States Supreme Court came up with an
answer. The Court said that since the Constitution doesn't provide a
remedy, we'll provide a remedy. And that remedy is that the Government
will not be allowed to benefit from its own unconstitutional
wrongdoing. At a practical level that meant that if the Government
violated a citizen's 4th Amendment rights by say, kicking down his
door for no reason and searching his house until they found a gun, the
Government would not be allowed to use the gun they found in any
prosecution. In legal mumbo jumbo, the gun is "suppressed" or
"excluded."
To this day there are those who say that the Supreme
Court had no business inventing such a remedy that was not part of the
Constitution or that it is an inappropriate remedy. After all, these
critics say, the evidence is perfectly reliable and perfectly
legitimate. The illegal guns they find when they kick down my door for
no reason and search my bedroom closet are still illegal and still
guns regardless of the motivations and actions of the government
agents. How unfair to society, they say that I should get away with a
crime merely because some overzealous police officer was unclear that
kicking down a door for no reason and searching a bedroom closet might
later be determined to run afoul of the Constitution.
But despite its critics (including former Chief Justice Rhenquist of
the United States Supreme Court) the exclusionary rule, as it
is called in the legal world says that evidence that is found to have
been obtained illegally (that is, against the Constitution) is not
generally admissible in court against a defendant.
Realize however, that the remedy is not, never was, and
never will be, that the entire case against a defendant must always be
dismissed. The exclusionary rule only operates to exclude a specific
piece, or pieces, of illegally obtained evidence. The Government is
free to continue the case against the defendant as long as it has
sufficient evidence that was obtained without violating the principles
of freedom upon which our country was founded. In other words, the
drooling psychotic murderer's 12 homicide indictments will not be
dismissed because the police illegally obtained a single marijuana
cigarette from his car's ashtray. Just the marijuana would be excluded
from his cases.
And those of you reading this article that might be
ready nonetheless to grab your pitchforks and storm the local chapter
of the ACLU because judges have to suppress perfectly reliable
legitimate evidence, relax, sit back, and take it easy for just a
minute. There's more…
If you listen to the press and watch television and
movies that depict the criminal justice system, you are probably under
the impression that the police are "hamstrung" by abstract,
indecipherable, impossibly technical rules that are constantly causing
murder weapons and truckloads of drugs to be excluded.
Judges are helpless to do anything but follow the law
no matter how absurd they know the law has become in the hands of high
priced greasy haired lawyers who could talk the birds out of the
trees. And the poor police, well how could you possibly expect the
police to be "hip" to the latest technicalities in the law as they try
ever so hard to abide by long lists of rules of behavior on the
street? What a miserable state of affairs when the founding principles
of freedom are twisted into such impractical lists of irrational
requirements.
Well the preceding state of affairs certainly is an
interesting place to introduce fictional characters like "Dirty Harry"
who "bend the rules for justice". But the truth is that the preceding
state of affairs is nothing more than a preposterous fantasy.
The truth of the matter is that evidence does not
frequently get suppressed at these suppression hearings. In fact, the
phrase "does not frequently get suppressed" is something of an
understatement. The phrase that is closer to the truth, the phrase
that is more statistically accurate would be "evidence never gets
suppressed".
One study found that in fewer than 5% of criminal cases
was any evidence at all, let alone case-critical evidence, suppressed.
Suppression hearings are conducted by a Judge. There is
no jury. By their nature, they will often boil down to a determination
of the believability of the witness.
If the police officer witness says, for example, "I
happened to observe two bullets on the floor of the passenger side of
the car," then the judge must decide whether to believe that. If the
judge believes that and decides that it happened that way, then in
most circumstances the police officer will have had the right to then
search the car.
Now in the rare and unlikely event that the truth is
that there were not actually bullets so easily visible on the floor of
the car, and the police officer just said that because he knew it
would justify his actions in searching the car, then it is up to the
defense lawyer to use the great truth-revealing engine of cross
examination to ferret out the truth.
But what then does the defense lawyer say? I suppose he
could dramatically clear his throat and say to the police officer,
"Isn't it true there really weren't two bullets on the ground?" to
which the police officer would naturally reply, "That is the truth. I
just committed perjury before."
…or maybe not.
Instead, the police officer is likely to say something
like, "No counselor, there were two bullets right there in plain view
on the floor." But perhaps the shrewd defense lawyer will ask the
unbeatable follow-up, "Liar liar your pants are on fire," (see a
wonderful scene in the movie A Few Good Men in which the
character played by Tom Cruise explains this sort of difficulty to the
character played by Demi Moore) to which the police officer will
immediately say, "You're right. You got me. I was lying."
…or maybe not.
The police officer has a number of advantages at this
point, not the least of which is that as a general rule the only
people in a position to dispute his claims will be his partner and the
defendant. One partner is not terribly likely to step forward and
proclaim his partner a liar.
Certainly the defendant is free to take the stand and
explain to the judge how there were not really bullets rolling around
the floor of his car just at the moment that the police officer was
innocently peering in. Well now that creates a difficult situation for
the judge because the judge has two competing versions of the same
course of events.
One version (the police officer's) would mean that
suppression of evidence would be denied and the case could proceed
toward trial. The other version (the defendant's) would mean that
suppression of evidence would be granted and the Government's case
could be severely impaired if not destroyed. Thus, the suppression
hearing can boil down to a determination of believability as between
the police officer and the criminal defendant.
Of course if there are independent witnesses or
serious discrepancies in the police officer's paperwork, the judge may
be put in the difficult bind of being hard-pressed to credit the
police officer's testimony. But read on…
That brings us to one final little tidbit that needs to
be tossed into the mix. The determination of the believability of a
witness is virtually unappealable. The judge will virtually never be
reversed because an appeals judge disagrees with his assessment of the
believability of a witness. As long as the judge determines the facts
based on the believability of a witness, he can decide as he chooses
and in only the rarest of circumstances (on the order of comet
striking the earth rarity) will any appeals court bother him with a
reversal.
So what is a judge to do?
Cynical people might say that a judge who is given the
power to make unappealable decisions will tend toward making decisions
that favor NOT suppressing evidence. If, by finding that the truth of
the matter is that the defendant had a couple of bullets rolling
around the floor of his car the judge can avoid suppressing evidence,
then these cynical people would say that the judge will tend toward
finding that the defendant had a couple of bullets rolling around the
floor of his car.
Once this fact is found, the judge, in not suppressing
the evidence is legitimately following the law that sensibly tells us
that police are permitted to assume that where there are bullets there
are also guns worth trying to find.
The judge can also tell himself that the police
officer's testimony was not uncovered to be a bald faced lie. The
judge can even point to the witness' unwavering ability to withstand
withering "liar liar pants are on fire" cross-examination.
Furthermore, in most cases, judges are not even faced
with having to make the uncomfortable determination as to crediting
the police officer's version or the defendant's version. For a variety
of reasons,
defense lawyers will not usually have their clients testify simply to
set up an alternative fact pattern to a stop unless there is
additional corroboration of the defendant's version.
A number of years ago, there was a scandal in New York
City because some police officers claimed that there was a general
practice within the Department of fudging the truth a bit in these
suppression hearings. They claimed there was even a clever name for
the practice, "testilying".
The police justified the practice by telling themselves
that the law with respect to how they dealt with ordinary citizens
involved too many absurd "technicalities" that did nothing but impose
dangerous stumbling blocks to their ability to fight crime. In essence
they believed that systematically perjuring themselves was doing
society a greater good.
After all, the guns they found were real. The drugs
they found were real. Or at least most of the time anyway. They
believed the good they did by getting these illegal things off the
streets far outweighed systematic government
perjury with respect to violations of the Bill of Rights.
So you see, the police were really convinced they were
doing us all a great service by saying that the bullets were on the
floor of the car instead of telling the truth which was that the car
was stopped because the driver looked "out of place" and upon being
stopped he was ordered out of the car, frisked, and his car was
thoroughly searched - and ultimately a gun and bullets were recovered
in a secret location under the driver's seat.
And it is certainly hard to argue with the officer, who
when somehow caught in his lie reminds us that in taking that gun off
the street he may well have saved the lives of whoever might have been
shot by that gun.
People who might be labeled "radical" might point out, however, that while
it is true that the officer's actions in this one instance uncovered a
gun, there are likely other instances in which his actions were not so
glorious and heroic.
What about the time before that when he pulled over a
17 year old kid driving his parents' expensive car, ordered him out of
the car at gunpoint for no particular reason other than he looked "out
of place" to that police officer and he and his partner then turned
the car inside out looking for guns or drugs? He didn't find anything,
and then sent the kid on his way.
Someone who might be labeled a "radical" might complain that there
was something fundamentally horrific about this scenario - something
so horrific that if it were repeated frequently enough would have a
significant impact on whether or not we really live in a free society.
Perhaps the technicalities that require the police to
obey the law, including some of our Constitution's most basic
principles, and the general hope that police officers would not
systematically perjure themselves (the radical might say), are
actually pretty important - maybe even MORE important than an
individual gun or any individual case.
There will be a constant tension between a police
force's desire to ferret out crime at all costs and a free society's
desire not to be plagued by checkpoints, snarling hounds, random
intrusive stops by armed paramilitary personnel, and requests for
"papers".
Gun cases by their nature will often be at the focal
point of this tension. They will go a long way toward defining the day
to day manner in which the police deal with citizens. The more judges
are willing to believe that the bullets are rolling around the floor
of a car in plain view, the more judges are willing to believe that
the center console of the car was open to reveal the gun as the police
officer walked up to the car to give a ticket for no seatbelt, the
more unfettered the police will feel in how they interact with people
on the street on a day to day basis.
So gun cases, while not seemingly as interesting or
serious as more familiar types of criminal cases, really are among the
most important. The next time a police officer interacts with you, the
manner in which he conducts himself and the way that he treats you
during your interaction may well be driven in large part by manner in
which our criminal justice system handles gun cases.
As a result of the "testilying" scandal mentioned
above, a commission was formed to look into it, a number of police
officers were scolded quite severely, and the problem has been nearly
completely eradicated…
