Reexamining the importance of firearm investigations.

Historically, most firearm laws in the United States have focused on prohibiting specific dangerous classes of persons, especially felons, from receiving or possessing firearms. While these laws have advocated denying these individuals access to firearms, critics often complain that the laws have been somewhat ineffective in accomplishing this task.(1)

However, in 1986, firearm violations took on a new impetus when Congress mandated 15-year minimum sentences for certain career criminals convicted in federal court of firearm possession.(2) This "armed career criminal" statute now mandates a minimum 15-year incarceration for possession of any firearm by a person with three prior convictions for violent or drug-trafficking crimes.(3) Sentences can range as high as life imprisonment if the defendant's record proves extensive.(4)

Some states have created even more severe sanctions. For example, California now mandates a sentence of 25 years to life for any felony conviction if the defendant has two previous convictions for serious or violent crimes.(5)

Such draconian sentences for the mere possession of a firearm might, at first glance, seem out of proportion to the offense and a waste of public resources. However, an intensive survey of incarcerated felons in 10 states concluded that approximately 20 percent of the subjects surveyed accounted for about 50 percent of all crimes and most of the violent crimes reported by the sample.(6) This same group of subjects, described in the survey as firearm predators, also reported habitually acquiring, possessing, and carrying firearms, which differentiated them from the majority of other felons. This subset of criminals apparently accounts for a significant portion of serious crime and presumably generates a significant portion of the police workload. For example, one third of active armed robbers in a St. Louis, Missouri, study reported having committed 50 or more robberies and over half reported having committed burglaries, assaults, and larcenies.(7) Thus, time spent developing a firearm case for court may prove more productive in terms of impacting public safety than conducting follow-up investigations on robberies or assaults.(8) Also, besides improving the quality of investigation and trial preparation of opportunistic seizures of firearms from serious felons, police can initiate proactive efforts at targeting specific, high-risk offenders.

RECOGNIZING TACTICAL ADVANTAGES

Many law enforcement agencies establish career offender units to arrest and prosecute active violent offenders. Firearm statutes can help in such efforts. Offenders maximize their sensitivity to surveillance and police observation immediately before, during, and after criminal activities. Thus, subjects who perennially possess or carry firearms may prove vulnerable to arrest and prosecution for possessing a firearm rather than for their more substantive crimes. Also, operations that seek to arrest suspects during, or immediately after, violent crimes require extensive resources and present a variety of risks. One of the most difficult decisions for tactical commanders remains whether to allow the crime to take place and risk injury to the public or act before the crime occurs and risk forgoing prosecution. However, in cases involving perennial firearm carriers, commanders can employ firearm laws to help reduce both the operational complexity and the physical risk of such proactive operations.

From a tactical perspective, firearm violations offer investigators another advantage. Often, proactive enforcement efforts against career offenders require inside information from a confidential informant regarding the details of a pending crime. Because only a few individuals know these details, acting on that information can compromise the informant's identity. Thus, investigators find themselves in a moral and professional dilemma - to act and place the informant at risk or not act and allow a crime to occur. However, because they often know about offenders who usually possess or carry firearms, investigators can use parole search authority or other means to make a seizure and arrest, which will provide little or no evidence that they had inside information. Then, when investigators must disclose an informant's existence, as in a search warrant affidavit, they can conceal the informant's identity, if necessary.

Additionally, investigators can enhance the probability of obtaining a search warrant if they capitalize on certain characteristics of firearms and reasons for their possession. Unlike many items, the utility of a firearm, unless it is being held as a commodity, depends upon ready availability. Therefore, offenders usually keep firearms on their persons, in their vehicles, or in their residences.(9) Also, because firearms are durable, offenders generally retain them for a long time.(10) While Bureau of Alcohol, Tobacco and Firearms (ATF) agents and investigators who specialize in firearm investigations have capitalized on these characteristics to obtain search warrants for firearms, other investigators may not be as aware of how these characteristics can be used to expand both the scope and the duration of probable cause. For example, if informants observe suspects in possession of firearms on several occasions but have not had access to their residences, investigators can draw on their past experience and logic to explain why probable cause exists for them to believe that the suspects store the firearms at their residences. If the purpose of a firearm is primarily self-defense, and ample scholarly and experiential evidence supports this assumption for repeat offenders,(11) then it follows that offenders will keep their weapons nearby. Moreover, research and investigative experience support the idea that firearm possession is a pattern behavior. When investigators can provide adequate documentation of such a pattern, they may convince a magistrate that a "fair probability" exists that the suspects currently possess firearms on their persons or in their vehicles or residences.(12)

Most experienced investigators have recognized this pattern of behavior in subjects of their investigations. In fact, most experienced officers instinctively will search the area around the bed for weapons almost immediately upon initiating a search of a residence. However, translating this intuitive knowledge into a written affidavit that someone without the officer's specialized knowledge and experience will understand remains the challenge. First, investigators must become aware of such knowledge and then document it. By maintaining a record of past experiences, investigators build a foundation of specialized knowledge that they can translate into such statements as:

I have participated in the service of over 100 search warrants for firearms and over 200 parole searches. It has been my experience that individuals engaged in criminal activity who possess firearms do so primarily for personal protection. As a result, they routinely retain these firearms in places easily accessible to them, such as on their persons, in their vehicles, and in their places of residence.

Just as they do during narcotics and stolen property investigations, officers can use their personal experiences and expertise to interpret the facts in the affidavit.

The broad discretion granted police officers in firearm searches illustrates the final tactical advantage of firearm violations. Because guns present a unique danger, courts have granted substantial latitude to officers during firearm searches. For example, in Terry v. Ohio, the court allowed pat-downs for weapons without probable cause.(13)

MAXIMIZING THE USE OF FIREARM LAWS

How can officers maximize the potential utility of firearm laws to impact career offenders? First, they must have access to statutes that impose significant incarceration on armed career offenders. Federal statutes apply throughout the country and both ATF and the majority of U.S. Attorneys have shown a willingness to adopt quality cases for federal prosecution. State statutes, such as California's three strikes law, offer a less cumbersome and potentially more effective alternative. Police agencies in states without effective statutes should cultivate a close cooperation with ATF, while working on more effective state laws. Also, officers should consider both reactive and proactive strategies when employing firearm laws against career criminals.

Reactive Strategies

At the organizational level, several reactive strategies may help to enhance the use of firearm laws. First, administrators should recognize unlawful firearm possession as a serious offense and assign cases for proper follow-up investigation and court preparation. Prosecutions can fail for such basic oversights as not checking for prior criminal records or obtaining proof of prior convictions. Because officers may detect armed career offenders in a wide variety of circumstances, including disturbances and individuals unlawfully carrying a firearm, all incidents involving firearms should include a criminal record check of the individual in possession of the firearm. Additionally, when possible, departments should form investigative task forces with ATF, thus increasing expertise and resources at no cost to the agencies. Also, police departments can supplement their own resources by training parole and probation officers to alert investigators upon discovering a firearm in the possession of a career offender. This cooperation allows police officers to respond and initiate a proper follow-up investigation of the scene and to interview potential witnesses.

Moreover, proper training of officers proves critical to maximizing the use of firearm laws. Patrol personnel must remember to focus on the prosecution of these criminals, as well as their apprehension. Because new technologies have increased the probability of obtaining usable latent prints from firearms, both recruit academies and refresher training programs should emphasize the proper handling and packing of all firearms. Managers should encourage patrol officers to verify identities and check criminal records for all individuals found in possession of firearms. Even when suspects are not known felons, officers should inquire about the circumstances surrounding firearm possession and note the responses. Further, by obtaining critical information while the original scene remains intact, officers can increase follow-up investigative opportunities.

Proactive Strategies

Although most firearm arrests result from other police actions, some simple initiatives can enhance proactive efforts. All officers, particularly narcotics officers, should inquire about weapons possessed by known felons when interviewing informants or witnesses. This procedure proves most effective when administrators assign officers the responsibility of investigating firearm violations and train them in obtaining firearm search warrants.

Administrators also can capitalize on the unique nature of firearms to maximize the scope of search authority and overcome problems with probable cause by training officers and familiarizing prosecutors and judges with the underlying logic. Assigning responsibility for firearm investigations also can facilitate this process by developing expertise and rewarding continued focus on the investigation and prosecution of these offenses. Officers assigned responsibility for firearm violations should ensure that other personnel understand the potential value of proper investigative procedures and apply them to all firearm cases.

Another proactive strategy involves understanding the unique nature of proof required to prevail in cases of illegal firearm possession. For example, in most jurisdictions, firearms are not contraband. Therefore, any third party can, absent a felony conviction or other disability, step forward and claim ownership of a firearm. Such claims serve to raise issues of doubt regarding the possession of the firearm by the prohibited person and constitute a common defense strategy when efforts to suppress evidence fail.

Because the elements of firearm possession are simple and the key witnesses are usually police officers, creating doubt regarding possession remains one of the few available defenses. When officers find the firearm on the defendant, such defense strategies prove virtually useless. However, officers routinely seize firearms from vehicles and residences, as well as find those discarded by suspects prior to their arrest.

To counter such a defense, officers should interview all potential firearm possessors as quickly as possible. At the early stages of investigations, suspects and other third-party individuals, such as friends, family, and associates, routinely deny ownership or knowledge of firearms. Officers should document these denials, which may become critical in impeaching or precluding later claims. Officers should ask questions regarding access and control of the vehicle or area where the firearm was found and should note and photograph the surrounding items. If officers find a firearm in a drawer with items of clothing, they should note the type and size.

Officers also should ensure that search warrants include such indicia of ownership and evidence as holsters, ammunition, receipts, and photographs of firearms. In one case, a shoulder holster harness adjusted for a large-framed man served to undercut a claim by his wife that the pistol belonged to her. In another, the defense began to negotiate a plea after examining photographs of the defendant posing with the firearm. Additionally, both ammunition and ammunition boxes can provide fingerprints, and, under federal law, ammunition is the legal equivalent of a firearm.(14)

Moreover, firearm cases need the same follow-up investigation that other serious felonies require, including such basic procedures as interviewing all potential witnesses and tracing all firearms. Third-party witnesses can serve to counter a popular defense strategy of claiming that the police planted evidence. Also, testimony of witnesses who observed the incident that brought officers to the scene may provide the jury with a better understanding of the events. Similarly, tracing firearms often can bolster a circumstantial case and make the difference between winning and losing.

In two cases, suspects being pursued by police discarded their handguns before being arrested. Although officers found the guns nearby, no physical evidence linked the defendants to the guns. In both instances, investigators traced the guns from the original purchasers to locations where the defendants had access to them. Both owners of the firearms testified that the guns disappeared near the time the defendants were present, and both defendants, who collectively committed at least five homicides and numerous other felonies, were convicted and sentenced to over 20 years each.

Finally, investigators intent on solving other crimes should not overlook the innovative use of firearm charges. For instance, felons seeking firearms represent potential targets for undercover stings. Also, little justification for high-risk undercover drug purchases exists if investigators can arrest multi-convicted felons on a firearm violation. Once officers understand that a conviction for possession of a firearm will impact a career offender as seriously as a conviction for a violent felony, successful prosecutions will follow.

CONCLUSION

Effective law enforcement management requires that resources be directed in a way that will maximize desired outcomes. If a primary goal of police agencies is to reduce serious crimes, then firearm prosecutions offer a unique opportunity to do so at little cost. By using existing firearm laws and joining forces with other agencies, including the ATF and local probation and parole efforts, officers can pursue another avenue of attack on those criminals who may have evaded capture on more serious charges. Further, by reexamining the importance of firearm investigations, administrators can offer their officers an alternative to the often dangerous and costly apprehension of violent repeat offenders. With the lives of their officers and the citizens they serve at stake, administrators should remain alert to any viable methods of solving violent crimes.

Endnotes

1 Polsby, Daniel D., "The False Promise of Gun Control," The Atlantic Monthly, March 1994.

2 18 U.S.C. [section] 922 (a)(6).

3 Id.

4 U.S. Sentencing Commission, Sentencing Guidelines Manual, Washington, DC, 1995.

5 California Penal Code [section] 1170.12 (c)(2).

6 James D. Wright and Peter Rossi, Armed and Considered Dangerous: Aldine De Gruyter, 1986, 13 and 75.

7 Richard T. Wright and Scott H. Decker, Armed and Considered Dangerous: Northeastern University Press, 1997, 13 and 17.

8 Only 26.9 percent of reported robberies and 58 percent of reported assaults are cleared by arrests, see Federal Bureau of Investigation, Crime in the United States (Washington, DC, 1996) 205. About 40 percent of assault arrests and 54 percent of robbery arrests subsequently result in convictions for some felony crime, see Brain Reaves, "Felony Defendants in Large Urban Centers, 1994," Bureau of Justice Statistics, 1998. However, even the probabilities implied by these statistics, 14.6 percent conviction rate for robbery investigations, overstates the probability of any given investigation resulting in a conviction absent certain advantages such as a patrol arrest or a suspect known to the victim.

9 See United States v. Steeves, 525 F.2d 33, 38 (8th Cir. 1975).

10 See United States v. Singer, 943 F.2d 758, 763 (7th Cir. 1991) and United States v. Collins 61 F.3d 1379, 1384 (9th Cir. 1995).

11 Supra note 6, 14.

12 Regarding threshold of evidence necessary for issuance of a warrant, see United States v. Mendonsa, 989 F.2d 366, 368 (9th Cir. 1993) and United States v. Clark, 31 F.3d 831, 834 (9th Cir. 1994).

13 Terry v. Ohio, 392 U. S. 1 (1968) (although probable cause is not required for the protective pat-down, the police are required to possess reasonable suspicion or other legitimate reason for the initial contact).

14 18 U.S.C. 922(g).