Federal Firearm Laws for State and Local Law Enforcement Agencies

The third in a series of articles by Todd Martin, Division Counsel for ATF.

B. Todd Martin, Division Counsel

ATF

Nashville Field Office

 

The Gun Control Act of 1968, as amended (GCA) controls application, issuance, operation, and regulation of a Federal Firearms License (FFL). A State or local government agency may obtain an FFL, but must comply with the relevant provisions of the GCA and Title 27, Code of Federal Regulations, Part 478, related to operations, and Title 28, C.F.R., Part 25, related to background checks. The applying agency will file an ATF Form 7, application for an FFL, which requires hours of operation, signage, responsible persons, ATF inspections, etc.

Certain activities for firearms and ammunition imported for, sold or shipped to, or issued for the use of, a government agency are exempt from the GCA. These are: 1) transportation, 2) shipment, 3) receipt, 4) possession, and 5) importation. Although most prohibited categories (felons, unlawful drug users, etc.) get an exemption, Misdemeanor Crimes of Domestic Violence (MCDV) convictions are not exempt.

 

Sales to Law Enforcement

A law enforcement officer (LEO) may purchase a firearm for official use by providing a licensee with a certification, on agency letterhead, and signed by a person of authority, that states the LEO will use the firearm in official duties and that a records check reveals the LEO does not have an MCDV conviction.

ATF considers the following as persons having authority to certify that LEOs purchasing firearms will use the firearms in performance of official duties:

1) in a police department – Chief or equivalent,

2) in a sheriff’s office, the sheriff,

3) in a State police or highway patrol department, the superintendent or the supervisor in charge of the office to which the State officer or employee is assigned, or

4) someone signing on behalf of a person in authority, provided there is a proper delegation of authority and overall responsibility has not changed in any way.

If the purchasing officer is a supervisory officer, the certification must be made by the supervising, purchasing officer’s supervisor. In other words, the purchasing officer and the certifying officer may not be the same person.

Although an ATF Form 4473 and a background check is not required for official use firearms, the licensee may require one; ATF cannot intervene. Personal firearm purchases require an ATF Form 4473 and background check.

Interstate shipments

Sales and deliveries of firearms to out-of-State police and sheriff departments are not prohibited by the GCA. A dealer may also sell or ship firearms, other than NFA firearms, to an individual LEO, regardless of age, if the dealer has a proper certification on official duty use.

Handguns (pistols, revolvers, and other firearms capable of being concealed on the person) for use in official duties may be mailed through the U.S. Postal Service to any officer whose official duty is to serve warrants of arrest or commitments. 18 U.S.C. § 1715. You must follow postal service regulations.

National Firearms Act (NFA)

All non-US possessed/controlled NFA firearms manufactured, imported, made, or transferred must be registered in the National Firearms Act Registration and Transfer Record (NFRTR), which must have the identification of the firearm, date of registration, and identification and address of the person/agency entitled to possess the firearm.

 

NFA Forms

Form 1 Application to make
Form 2 Notice of making/importation
Form 3 SOT to SOT transfer
Form 4 Tax-paid transfers
Form 5 Tax-exempt transfers
Form 9 Permanent export
Form 10 Registration by LE agency

 

Forms Used

Form 4 Form 5 Form 10
Transfers to a non-government entity, such as an employee or an SOT (except for repairs of an unserviceable firearm).

 

Receipt from a manufacturer, importer, or individual. Making an NFA firearm.

Transfers to another State or local agency, or back to DOD/DLA’s

Disposition Services LESO.

ATF recommends Form 5 when transferring to a gunsmith.

 

Possession of an NFA firearm acquired for official use that is: 1) a court-ordered forfeiture to the agency, or 2) abandoned to the agency.

Receipts DOD’s LESO.

Future transfers are limited to LE-type agencies.

 

Dealer Sales to agencies

NFA dealers can’t receive a machinegun manufactured after 5/19/86 unless they have a letter from an expected governmental customer requiring demonstration of the weapon, information as to the availability of the machinegun to fill subsequent orders, and letters from governmental entities expressing a need for a particular model or interest in seeing a demonstration of a particular weapon. The agency must provide the letter to the dealer, who will complete any remaining requirements. A demonstration request form letter is available in ATF’s NFA Handbook.

 

Processing Individuals/Trusts ATF Forms 4 or 5

ATF now requires only that the applicant of an NFA transfer provide a copy of the ATF Form 4 or 5 to the Chief Law Enforcement Officer (CLEO) of their jurisdiction (Chief of Police, Sheriff, District Attorney, State Police Director, etc., or a properly, authorized delegate). A CLEO is encouraged to notify ATF of any reason the person should not receive the firearm.

 

Confidentiality

The NFA is a tax provision. Title 26, U.S.C., § 6103 of the Internal Revenue Code prohibits the release of tax information. As a result, ATF is prohibited from disclosing tax information. That includes the existence or non-existence of the registration, or other information.

 

The law allows disclosure of the information to Federal agencies involved in criminal investigations, to fight terrorism, and to prevent fugitives from escaping.  Additionally, if circumstances involve imminent danger of death or physical injury to any individual, ATF may disclose taxpayer information to the extent necessary to apprise appropriate officers or employees of any Federal or State law enforcement agency of such circumstances. Although there are other exemptions, none likely apply to routine encounters by law enforcement. Unless one of the statutory exemptions exists, ATF will not release the registration or non-registration of an NFA firearm.

*Views expressed are not necessarily the views of ATF.

Juveniles and Handguns

The second in a series of articles by Todd Martin, Division Counsel for ATF.

 

B.Todd Martin, Division Counsel*

ATF

Nashville Field Division

 

The Gun Control Act of 1968, as amended (GCA), prohibits a Federal firearms licensee from selling or delivering any firearm or ammunition to any person under the age of 18, and selling or delivering a firearm or ammunition, other than firearm or ammunition for a rifle or shotgun, to any person under the age of 21. Additionally, it is unlawful for any person, regardless of whether they are a Federal firearms licensee, to sell, deliver, or otherwise transfer a handgun or ammunition suitable for use only in a handgun, to any person they know or have reasonable cause to believe is a juvenile (a person less than 18 years old). Likewise, is unlawful for a juvenile to knowingly possess a handgun or ammunition suitable for use only in a handgun. It is important to note that a firearm frame, even with a shoulder stock attached, may not qualify as a rifle or shotgun, since, under the GCA, those two firearms require a barrel.

 

The prohibition related to juveniles and handguns, and ammunition suitable for use only in a handgun, has some exemptions. Temporary transfers of handguns or handgun ammunition are exempt if it the firearm or ammunition is possessed and used by the juvenile:

  1.  In the course of employment, ranching and farming at the residence of the juvenile or where the juvenile is ranching and farming with permission of the owner, target practice, hunting, or instruction on the lawful and safe use of a handgun,
  2. With prior, written consent of the juveniles parent or guardian, as long as the consenting parent or guardian isn’t prohibited by State or Federal law from possessing a firearm, and,

a.  During transportation by the juvenile, the firearm is unloaded, in a locked container, and the juvenile is transporting the firearm from the point of transfer to the location where an authorized activity will take place, or returning from where the authorized activity took place and returning the firearm back to the point of transferor, or

b. For ranching and farming activities require the juvenile may possess and use a handgun or handgun ammunition with the prior, written approval of a non-prohibited parent or guardian, and at the direction of an adult who is not prohibited by State or Federal law from possessing a firearm.

3.       The juvenile has the prior, written consent in the juvenile’s possession at all times when a handgun is in the possession of the juvenile, and

4.      In accordance with State and local law.

 

In addition, a juvenile who is a member of the U.S. Armed Forces may possess a handgun, or be armed with a handgun, in the line of duty. A juvenile may obtain a handgun through inheritance of title, but may not possess the handgun or handgun ammunition. Finally, a juvenile may possess a handgun or handgun ammunition in defense of self, or another person, against an intruder into the residence of the juvenile, or a residence in which the juvenile is an invited guest.

ATF recognizes other instances in which a juvenile may possess a handgun or handgun ammunition. For instance, a juvenile may be employed by a Federal firearm licensee and, through the course of employment, possess a handgun or handgun ammunition; however, the juvenile must have prior written consent of a non-prohibited parent, and maintain the writing in their possession during any such possession.

Violations of 922(b)(1) and/or 922 (x) range from fines, to terms of imprisonment of not less more than 1 year to 10 years, or both a fine and a term of imprisonment.

While the GCA provides prohibitions and several exemptions to a juvenile’s possession of a handgun or handgun ammunition, Tennessee law enforcement officers should be aware of the Tennessee Code Annotated provision that addresses a juvenile’s possession of a handgun.

Similar to Federal law, TCA § 39-17-1319 prohibits a juvenile (person under 18 years old) from knowingly possessing a handgun. Unlike the GCA, which defines a handgun as a firearm with a short stock, designed to be held and fired with a single hand, and a combination of parts from which a handgun can be assembled, Tennessee defines a handgun as:

“a pistol, revolver, or other firearm of any description, loaded or unloaded, from which any shot, bullet, or other missile can be discharged, the length of the barrel of which, not including any revolving, detachable, or magazine breech, does not exceed twelve inches (12”)”
Tennessee also provides several exemptions. A juvenile may knowingly possess a handgun while:

  • Engaging in an organized competition involving the use of a firearm, or participating in or practicing for a performance by an organized group which is exempt from federal income taxation under § 501(c)(3) of the Internal Revenue Code of 1986 (26 U.S.C. § 501(c)(3)), as amended, and which uses firearms as part of the performance;
  • Hunting or trapping pursuant to a valid license issued to the juvenile pursuant to title 70;
  • Accompanied by the juvenile’s parent or guardian and is being instructed by the adult or guardian in the use of the handgun possessed by the juvenile;
  • On real property which is under the control of an adult and has the permission of that adult and the juvenile’s parent or legal guardian to possess a handgun;
  • Traveling to or from any activity described in 1-4 above, with an unloaded gun, or
  • At the juvenile’s residence and with the permission of the juvenile’s parent or legal guardian, and the juvenile is justified in using physical force or deadly force.

 

With regard to instances of possessions while traveling to or from an approved activity, Tennessee sets out when a handgun is “unloaded.” Under Tennessee law, a handgun is unloaded if:
1) there is not a cartridge in the chamber of the handgun;

2) there is not a cartridge in the cylinder of the handgun if the handgun is a revolver; or

3) the handgun, and the ammunition for the handgun, are not carried on the person of a juvenile or are not in such close proximity to the juvenile that the juvenile could readily gain access to the handgun and the ammunition and load the handgun.

Penalties for an offending juvenile in Tennessee range from community service to suspension of driving privileges.You should confer with the District Attorney and local ATF agents when encountering a juvenile with a handgun and/or handgun ammunition.

 

**Views expressed are not necessarily the views of ATF.

 

 

The National Firearms Act: An Overview

As most of you know, our office maintains a strong relationship with other law enforcement agencies throughout the state and welcomes the submission of articles from outside agencies.   Tapping into that vein we are happy to present a series of three articles from  Todd Martin, a former assistant in our office who now calls the ATF home.

B. Todd Martin, Division Counsel

ATF

Nashville Field Office

On today’s streets, or even at a firing range, law enforcement may encounter firearms classified under the National Firearms Act (NFA). These are the broad categories of NFA firearms:

short-barreled shotguns

short-barrel

short-barreled rifles

short-barreled-rifles

weapons made from shotguns

weapons-from-shotguns

weapons made from rifles

weapon-from-rifle

any other weapons

destructive devices

silencers

silencers

machineguns

The NFA requires firearms not in the possession of the United States (federal agencies and the U.S. military) to be registered in the National Firearms Registration and Transfer Record (NFRTR), which is maintained by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in Martinsburg, WV. The NFRTR requires the identification of the firearm (serial number, name of the manufacture, importer, or maker, model (if designated), city and state of domestically made firearms, and city and state of the importer, as well as the country, of imported firearms), date of registration, and the identification and address of the person entitled to possession of the firearm. Any person who manufactures, imports, or makes a firearm must register it in the NFRTR.  A maker must receive permission from ATF before making an NFA firearm, but a qualified manufacturer or importers only provides ATF with notice, after the fact.

Section 39-17-1302(b)(7) of the Tennessee Code Annotated specifically excludes firearms registered with ATF from the prohibited weapon statute, but law enforcement officers may encounter difficulty in obtaining information from ATF on whether the firearm is properly registered.

The NFA is a tax code within the Internal Revenue Code under Title 26.  In the 1930’s, when the NFA was enacted, Congress used its taxing power, not interstate commerce, as a basis for the law, so – makers pay a “making tax,” transferors pay a “transfer tax,” and manufacturers and importers pay special occupational tax (SOT). As a tax code provision, 26 U.S.C. § 6103 of the Internal Revenue Code prohibits any officers or employees of the United States, as well as State officers and employees who have access to the information, from disclosure taxpayer information, including the registration or non-registration of an NFA firearm. The IRS should not give anyone your income tax filings out to anyone without your permission, and ATF cannot give making, transfer, or SOT tax information out.

Unlike some States and Commonwealths, Tennessee does not maintain a registry of NFA firearms, and Federal law does not allow any person other than ATF to demand proof of registration, including State and local law enforcement. In fact, ATF can only demand proof of registration, not the existence of the firearm.

There are, of course, exemptions.  Consent of the person in possession may grant access to registration documents or the firearm, but oral consent will not grant access to taxpayer information. ATF requires specific language, in writing, before disclosure of the existence or non-existence of taxpayer information.

The law allows disclosure of the information to Federal agencies involved in criminal investigations, to fight terrorism, and prevent fugitives from escaping.  Additionally, if circumstances involve imminent danger of death or physical injury to any individual, ATF may disclose taxpayer information to the extent necessary to apprise appropriate officers or employees of any Federal or State law enforcement agency of such circumstances. Although there are other exemptions, none likely apply to routine encounters by law enforcement.

Because of the restrictions on disclosure of taxpayer information related to NFA firearms, law enforcement officers are encouraged to contact their local ATF office to refer the matter of suspected, unlawful possession of an NFA firearm. ATF does not accept cases for investigation and prosecution when the firearm is lawfully registered and possessed.

*Views expressed are not necessarily the views of ATF.

Tennessee Supreme Court Adopts Limited Good Faith Exception to Exclusionary Rule

A good decision from the Tennessee Supreme Court released yesterday:

State of Tennessee v. Corrin Reynolds    No. E2013-02309-SC-R11-CD

Facts and Procedural History:

Sometime before 8:43 p.m. on the evening of October 29, 2011, a single-vehicle accident occurred in Knox County. Two occupants of the vehicle were killed in the accident, and two others in the vehicle, the defendant, Corrin K. Reynolds, and Shawn Page, were transported to the University of Tennessee Medical Center (“UT Medical Center”) for medical treatment. Deputy Lee Strzelecki, a member of the crash reconstruction team for the Knox County Sheriff’s Department, was tasked with interviewing the survivors at UT Medical Center. After speaking with them, Deputy Strzelecki concluded that the defendant was driving the car when it crashed, so he asked medical personnel to obtain a sample of her blood. Believing the defendant had verbally consented to the blood draw, Deputy Strzelecki did not obtain a warrant nor advise the defendant that she could refuse the blood draw, or of the legal consequences under the implied consent law should she refuse.  The defendant told Deputy Stzelecki to “do whatever he needed to do.”

After considering the proof offered at the suppression hearing and the affidavit and medical records the defendant submitted afterwards, the trial court, on May 14, 2013, denied the defendant’s motion to suppress, finding that the defendant had provided actual, verbal consent to the blood draw.

Several months later, the defendant filed a second motion to suppress and hired an expert witness to testify regarding the defendant’s ability to consent to the blood draw.  After a hearing on this second motion, the trial court reversed itself and entered an order granting the defendant’s motion to suppress. The trial court found that the defendant had not actually consented to the blood draw and that Deputy Strzlecki lacked “reasonable grounds” to believe the defendant was driving while intoxicated, which was required under the implied consent statute to justify the warrantless blood draw.

The State filed an interlocutory appeal and argued that “(1) exigent circumstances supported the blood draw; (2) [the] [d]efendant gave actual consent to the blood draw; and (3) the blood draw was authorized under the implied consent statute.” State v. Reynolds, No. E2013-02309-CCA-R9-CD, 2014 WL 5840567, at *8 (Tenn. Crim. App. Nov. 12, 2014). The Court of Criminal Appeals affirmed the trial court’s finding that the defendant had not given actual consent for the blood draw. Id. at *10. But the Court of Criminal Appeals concluded that Deputy Strzelecki had probable cause to believe that the defendant was driving under the influence of alcohol, which triggered the implied consent law and provided a basis for the warrantless blood draw.

Alternatively, the intermediate appellate court opined that, were the implied consent law held unconstitutional, the good-faith exception to the exclusionary rule should be adopted and applied to prevent suppression of the evidence in this case. Id. at *16. The Court of Criminal Appeals recognized that Tennessee has not formally adopted the good-faith exception. Id. Nevertheless, the intermediate appellate court opined that the facts of this case would fit squarely within the good-faith exceptions articulated in Davis v. United States, 564 U.S. 229 (2011), and Illinois v. Krull, 430 U.S. 340 (1987), were this Court to adopt these exceptions. Reynolds, 2014 WL 5840567, at *16.

The defendant subsequently filed a writ with the Supreme Court which was granted.

Holding and Analysis: The Court concluded that Deputy Strzelecki had probable cause to believe that the defendant was driving while intoxicated at the time of the accident; thus the implied consent statute was triggered. They declined to decide in the appeal whether statutory implied consent satisfies the consent exception to the warrant requirement, because even assuming the warrantless blood draw violated the Fourth Amendment and article I, section 7, the exclusionary rule does not apply. Instead they adopted the good-faith exception to the exclusionary rule as articulated in Davis and held that the exception applies here.  Nevertheless, even if the warrantless blood draw violated the state and federal constitutional prohibitions against unreasonable searches, they concluded, as explained hereinafter, that the exclusionary rule does not require suppression of the evidence because the warrantless blood draw was conducted in objectively reasonable, good-faith reliance on binding precedent. Therefore, given the unusual facts in this case, and because this issue is not determinative to the outcome of this appeal, we decline to decide here whether the implied consent law satisfies the consent exception to the warrant requirement.

The Supreme Court did specifically limit their holding, however, articulating that that we wish to “note the narrowness of our holding.” State v. Lindquist, 869 N.W.2d 863, 876 (Minn. 2015). We adopt only the Davis good-faith exception, which “represents a small fragment of federal good-faith jurisprudence.” Id. Furthermore, the Davis good-faith exception we adopt applies only when the law enforcement officers‟ action is in objectively reasonable good faith reliance on “binding appellate precedent” that “specifically authorizes a particular police practice.”

To read the full opinion:  http://www.tba.org/sites/default/files/reynoldsc_110316.pdf?fid=6189d38d44d62f91812f55de8f48e69f7ec00812

 

 

 

 

 

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2016 Mark Vance Memorial Award

On October 21, 2016, District Attorney General Barry Staubus presented the 2016 Mark Vance Award for excellence in the investigation of domestic violence cases to Tracy Haraz with the Sullivan County Sheriff’s Office.   Congratulations Tracy!   Donna Mix, Director of Abuse Alternatives, was also honored at the ceremony for her many years of excellence in advocating and supporting  victims of domestic violence.  Attached are links to local media coverage:

http://wjhl.com/2016/10/21/mark-vance-award-presented-to-sullivan-co-detective/

 

http://www.heraldcourier.com/news/sullivan-county-sheriff-s-office-detective-receives-mark-vance-memorial/article_469d0afe-97a2-11e6-9f3d-23539c347a6a.html

 

A Good Day for the Good Guys: Community Caretaking Lives!

For those of you unlucky enough to suffer through the recent in-service training that I did on search and seizure, you know the contempt that I have held for many of the recent CCA opinions on the community caretaker doctrine (or lack thereof).  Apparently the Tennessee Supreme Court heard my rant and rewarded us all with an excellent decision in State v. Kenneth McCormick,  — S.W. 3d — (2016), that helps restore a little of the balance to the world by reversing the CCA decision in Moats that held community caretaking was not an exception to federal and state constitutional warrant requirements.

Thanks again to Deputy DA Gene Perrin for his summary of the opinion.  The full text of the opinion can be found here:

http://www.tncourts.gov/sites/default/files/mccormickk_opn.pdf

 

FACTS:

 Trooper on routine patrol at 2:45 a.m. observes a vehicle parked in the roadway in front of a grocery store that was not open.  Upon approaching the car to do a welfare check, the trooper realized that the car was parked in such a manner that it blocked 75% of the entrance into the parking lot resulting in the left rear wheel protruding partially into the roadway.  The car’s engine was running and its lights were on.  The trooper parked on the roadway behind the car and activated his patrol car’s rear facing blue lights for safety reasons so that neither his own patrol car nor the suspect vehicle would be rear ended.  Upon approaching the car on the driver’s side, the trooper observed the defendant slumped over the steering wheel, despite a blaring radio, running engine, and activated headlights.  After taps on the window failed to arouse the defendant, the trooper opened the door and in so doing, detected a strong odor of alcohol on the defendant’s breath and person as well as observed an open beer bottle in the center console.  The trooper tried to wake the defendant for about a minute before the defendant responded.  At that time, the defendant was asked to step out of the vehicle and he was ultimately arrested for DUI.  The defense moved to suppress arguing an unlawful seizure of the defendant.  The trial court denied the motion finding the trooper’s testimony at all stages had been consistent that he approached the defendant’s car to conduct a welfare check and he had turned on his rear blue lights for safety reasons.  The DUI conviction was ultimately appealed to the TN Supreme Court.

 

HOLDINGS:

1) The TN Supreme Court overruled Moats and held that the community caretaker doctrine is an exception to the state and federal constitutional warrant requirements and as such, will justify a warrantless seizure of an automobile when an officer is acting as a community  caretaker.

2) For the purpose of this appeal, the Supreme Court presumed that the trooper’s actions in parking behind the defendant and activating his blue lights constituted a seizure.  The Court went on to note the community caretaker doctrine is an exception to the warrant requirements because modern society expects police officers to fulfill many duties and  interact with citizens in a number of ways beyond investigating criminal conduct.  Such activities include a general safety and welfare role for police officers in helping citizens in peril or who may otherwise be in need of some form of assistance.  The Court did caution that the caretaker role would be much more limited in a home or office than when dealing with vehicles that are movable and often contain in plain view evidence and fruits of criminal activity.

3) The community caretaking exception will justify a warrantless seizure so long as the State establishes (1) the officer possessed specific and articulable facts which, viewed objectively and in the totality of the circumstances, reasonably warranted a conclusion that a community caretaking action was needed, such as the possibility of a person in need of assistance or the existence of a potential threat to public safety; and (2) the officer’s behavior and the scope of the intrusion were reasonably restrained and tailored to the community caretaking need.

4) A trial court must carefully consider the facts of each case including the nature and level of  distress exhibited by the citizen, the location, the time of day, the accessibility and availability  of assistance other than the officer and the risk of danger if the officer provides no assistance. The officer’s subjective motivation is irrelevant since the law does not require an  officer to suppress his or her training and investigatory experience when carrying out the community caretaking function.  It should be noted in this case that the Trooper did testify he called for a municipal officer to come to the scene to assist him in his welfare check of the driver (defendant).

5) The Supreme Court found that the facts of the case warranted the trooper’s conclusion that a welfare check (community caretaking action) was necessary and appropriate.  The facts confronting the trooper suggested either a person in need of assistance or a potential threat to public safety, or both.   Additionally, the trooper’s behavior and scope of intrusion was reasonably restrained and tailored to his community caretaking need.  The defendant was slumped over the steering wheel of a car partially protruding in the roadway.  Given the time, location, and lack of assistance from other sources, the Court ruled the risk of danger had the officer provided no assistance was substantial and that the officer would be derelict in his duty as a police officer had he failed to take steps to determine the defendant’s welfare.

6) The Court further found that by the time the trooper asked the defendant to step out of his vehicle, he possessed at least reasonable suspicion that the defendant was under the influence of an intoxicant thus allowing the follow-up DUI investigation.  Conviction affirmed.

 

Be Careful What you Promise: Recent CCA Decision Overturns Conviction Based on Pre-Plea Agreement

Thanks to Deputy District Gene Perrin for his summary of this recent Court of Criminal Appeals decision.  The decision highlights the perils of making agreements on the front end of an investigation.

The full decision can be found here:

State v. Randy Lane, 2015 WL 8029834 (Tenn. Crim. App. at Knoxville, Dec. 7, 2015)

Facts:

After being notified that the defendant had been taken into custody by the Bradley County Sheriff’s Department and at the time of his arrest, the defendant was in possession of property that had been stolen from Knox County residents, a Knox County Detective went to Bradley County to speak with the defendant. The defendant asked Detective Webb to “solicit a plea deal” from the district attorney’s office in which he would plead guilty to “[s]ix felony burglaries” in exchange for serving the new sentences concurrently with the previously imposed nine–year sentence.  Detective Webb testified that he telephoned Knox County Assistant District Attorney General Jennifer Welch. General Welch told Detective Webb that based on what he was telling her, “that we could offer that to him.” Detective Webb acknowledged that he “passed that along to” the defendant and that everyone intended for the defendant to plead guilty to six new burglaries and receive sentencing concurrent with the nine–year sentence. Subsequently, Detective Webb arranged for the defendant to be released into his custody so that the defendant could ride with him, point out the locations of the burglaries, and disclose where the stolen property was sold.

Detective Webb said that before they left the jail with the defendant, he advised the defendant of his rights. The officers then drove the defendant to Knox County, and the defendant identified the locations of his crimes. As they drove, Detective Coulter made a list of the addresses on a statement form, which became the defendant’s confession.  At the top of the rights form, the detectives wrote: “Per Knox County DA’s office—Randy Lane will be charged with no more than six felony charges—any sentence he may receive will run concurrent with the nine year sentence. Mr. Lane advised he has already been sentenced to nine years in Knox County TN.” A list of twenty–eight addresses is in the middle of the statement form, and the defendant initialed each address. At the bottom of the statement form, the detectives wrote: “Randy Lane—pointed out the above listed locations inside Knox Co. and advised he had either stole property/broke into the residence and stole property.”  It was later learned that the defendant was on bail at the time that he committed the Knox County crimes and that the agreed concurrent sentence could not be imposed due to the sentencing provision requiring consecutive sentencing. The defendant was later convicted at trial and on appeal, argued that his confession should have suppressed.

Holdings:

1) Unlike a plea agreement that involves court approval, this agreement was between two parties: the defendant and the State.  At the time the defendant and the State entered into the initial agreement, the State had not charged the defendant with a crime related to the burglaries. Therefore, the agreement in this case, in which the prosecutor promised not to prosecute the defendant fully in exchange for his truthful information, was a cooperation–immunity agreement.

2) Cooperation–immunity agreements, like plea agreements, are enforceable as contracts. When a contract involves a criminal prosecution, due process rights must be fiercely protected.”  Based on the agreement, the defendant confessed to twenty–eight burglaries. However, the agreement turned out to include an illegal sentence. Since the initial agreement provided for an illegal sentence, it was unenforceable.  As a result, the trial court should have granted the defendant’s motion to suppress.

What this means for you:

This scenario occurs often and should be dealt with carefully.  The ADAG in this case entered into an agreement without the benefit of knowing all the facts and circumstances surrounding the defendant and his past.  Understandably, the detective was under pressure to solve a number of burglaries so he facilitated the deal that would lead to the defendant’s cooperation.  Unfortunately, the defendant got the last laugh since the confession was the only thing that linked him to the crimes charged.  An agreement with a defendant that “all cooperation will be considered by the State in its charge decision and plea offer” is always appropriate.  Anything beyond that on the front end, especially when dealing with the defendant and not his attorney, should be carefully scrutinized

 

New Decision on Tampering With Evidence

The Court of Criminal Appeals released a new opinion last week regarding the sufficiency of evidence in a tampering with evidence case.  State v. Elahu Hill, Jr., W2015-00688-CCA-R3-CD (Tenn. Crim. App. Oct. 28, 2015)   Special thanks to Deputy District Attorney Gene Perrin for the following summary of the case:

Facts:

The Defendant was a passenger in a vehicle that ran a stop sign.  Investigator Smith conducted a traffic stop based upon this traffic violation. At some point, Sergeant Anderson took the Defendant out of the vehicle, handcuffed him, and placed him in the back of a patrol car. While doing so, Sergeant Anderson smelled marijuana and asked the Defendant if he “had anything on him,” and the Defendant initially denied having any contraband. Later, Sergeant Anderson took the Defendant out of the patrol car so that the Defendant could provide the officer with information for a booking sheet. Sergeant Anderson again smelled marijuana and asked the Defendant if he “had anything on him, to which the Defendant responded, “No.” Sergeant Anderson then specifically asked the Defendant, “Do you have marijuana in your mouth or something?” At that time, in plain view, the Defendant spit out the baggie of marijuana that had been underneath his tongue.

Legal Analysis:

A tampering with the evidence charge requires the State to prove three elements beyond a reasonable doubt—“timing, action, and intent.  The timing element requires that the act be done only after the defendant forms a belief that an investigation or proceeding „is pending or in progress.   The action element requires alteration, destruction, or concealment.  Here, the State’s case against the Defendant was based on the Defendant’s concealment of the baggie of marijuana from investigators. To “conceal” a thing means “to prevent disclosure or recognition of” a thing or “to place [a thing] out of sight.  To establish the “intent” element, the proof must show that the defendant intended for his actions “to hinder the investigation or official proceeding by impairing the record’s, document’s, or thing’s verity, legibility, or availability as evidence. Tampering with evidence is a “specific intent” crime.  Accordingly, the State in this case was required to prove beyond a reasonable doubt that when the Defendant placed the baggie of marijuana in his mouth, he intended to impair its availability as evidence in either the police investigation or his eventual trial.

Holding:

The Defendant’s alleged concealment delayed minimally, if at all, the officers’ discovery of the marijuana.  Moreover, there was no proof that the Defendant’s act of putting the baggie into his mouth impaired the availability of the marijuana as evidence against the Defendant.  Officers collected the baggie and sent it to the crime lab, and the State offered the recovered evidence against the Defendant at trial. Accordingly, under the facts of this case, we conclude that the evidence presented was insufficient to support the Defendant’s conviction for tampering with evidence, and we reverse and vacate the conviction.

State v. Elahu Hill, Jr., W2015-00688-CCA-R3-CD (Tenn. Crim. App. Oct. 28, 2015)

Points of Consideration:

1) In a similar situation as this, charge attempt to tamper with evidence since it is clear that the

defendant intended to conceal the evidence and took a step towards the crime.

2) An officer should always advise a suspect that taking contraband into jail will result in an

introduction charge thus be prepared to deal with this situation.

3) Had the defendant actually swallowed any part of the evidence, the tampering conviction

would stand. As in all cases, call us if you have any questions.