Monday, September 24, 2012

EDITOR'S NOTE: This is an update of a post I did about four years ago.

About this time of year many Iowans get the urge to head out to the field and do a little hunting and one of the things that happens is that there's a fresh crop of felon in possession charges that come across the county attorney's desk. Often the offenders are people who may have had a third operating while intoxicated conviction a few years ago, and memory has faded. I had more than a few at the county attorney's office myself. There are also a number of people who have had convictions for domestic violence or who are subject to protective orders who ask the same things.

One question that always gets asked is "Well, can I hunt with an antique weapon like a muzzle loading rifle or shotgun?" The answer is decidedly "no", even though some folks may argue that federal law doesn't forbid it. 

Our state has not specifically defined a "firearm" in the code-such things are subsumed in the definition of a dangerous weapon found in Iowa Code Chapter 702, which specifically exempts a bow and arrow possessed for hunting and other lawful purposes. In State v. Lawr, 263 N.W.2d 747 (Iowa 1978) the Court did say that a firearm is a small arms weapon from which a projectile is fired by gunpowder. It must be able to propel a projectile and it must do so by explosive force.

The last time I did this piece a fellow took issue with me, saying that black powder and pyrodex are not gunpowder and therefore a muzzle loader is not a dangerous weapon subject to regulation. I would like to see that fellow try to sell that to the veterans of the Civil War, but nevermind.

There's a recent case from Nevada that applies. In State v. Pohlabel, a defendant argued that the state's statute prohibiting felons from possessing firearms violated his second amendment right to keep and bear arms. Pohlabel's argument was that 18 U.S.C 921(a)(3) does not forbid felons from possessing antique or black powder firearms:

(3) The term “firearm” means
(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive;
(B) the frame or receiver of any such weapon;
(C) any firearm muffler or firearm silencer; or
(D) any destructive device. Such term does not include an antique firearm. 
Further we find this:
(16) The term “antique firearm” means—
(A) any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898; or
(B) any replica of any firearm described in subparagraph (A) if such replica—
(i) is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or
(ii) uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; or
(C) any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition. For purposes of this subparagraph, the term “antique firearm” shall not include any weapon which incorporates a firearm frame or receiver, any firearm which is converted into a muzzle loading weapon, or any muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof. 
Next, to further confuse the issue is 26 U.S.C. 5845 a/k/a the National Firearms Act:
(a) Firearm
The term “firearm” means
(1) a shotgun having a barrel or barrels of less than 18 inches in length;
(2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length;
(3) a rifle having a barrel or barrels of less than 16 inches in length;
(4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length;
(5) any other weapon, as defined in subsection (e);
(6) a machinegun;
(7) any silencer (as defined in section 921 of title 18, United States Code); and
(8) a destructive device. The term “firearm” shall not include an antique firearm or any device (other than a machinegun or destructive device) which, although designed as a weapon, the Secretary finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector’s item and is not likely to be used as a weapon.
Of course the NFA serves only to regulate weapons, rather than regulating who has command and control over the weapons as 18 U.S.C. 921 does. 
I tend to disagree with such a liberal interpretation of the definition in 18 U.S.C. 921(a)(3)  myself because I think that the exception, if there is one, means only that an antique firearm is not considered a destructive device. But nevermind.
The Court disagreed with Pohlabel's argument, saying that while federal law currently permits felons to possess black powder rifles, that does not mandate that Nevada (should) follow suit.

At this point, the answer's clear. If you're a felon in Iowa you might want to consider taking up archery, and the same applies if you've been convicted of a domestic violence offense or are subject to a protective order in a domestic violence case, no matter how minor.

Friday, September 14, 2012

I Always Feel Like Somebody's Texting Me

Folks, I  have been away from my desk at the Iowa Law Enforcement Reporter for a while but I promise that I will faithfully execute the duties of my office henceforth and forevermore til death do us part.

With that said, there are a couple of very interesting cases kicking around, both  of which are from outside the jurisdiction. I'll get to the other one later.

Cell phone text messaging has become commonplace but extracting the information and authenticating it so as to use it as evidence presents a number of problems for law enforcement.

In Commonwealth v. Koch, no 1669 MDA 2010 (Pa. Sup. Ct. 2011) a Pennsylvania case,  a defendant was convicted of possession with intent.The police had seized two cell phones, one of which belonged to Koch and one to her brother. The text messages extracted from the phone were transcribed and offered into evidence over timely objections. On appeal, Koch argued that the text messages were not properly authenticated, the author of the messages could not be determined, and were inadmissible hearsay.

The court first noted that under Pa. R. Evid. 901(a) to introduce evidence it must first be authenticated. This rule is similar to the Iowa rule. The proponent must introduce sufficient evidence that the matter is what it purports to be.Electronic writings typically show their source, and hence can be authenticated in the same way a written document can be. Police could not determine the source of drug related text messages, and some had been deleted.

The difficulty lies in establishing authorship, but text messages are sent from a phone bearing the number identified in the message. There was no evidence tending to show the defendant sent any of the messages. Thus, the defendant could not be identified as the source of the messages.

That led to the question of hearsay, which is an out of court statement offered in evidence to prove the truth of the matter asserted. In this case, the only relevance of the text messages was to show that they demonstrated intent to deliver. Because the defendant's authorship could not be identified they could not be admitted as a statement of a party opponent.

Iowa has not comprehensively addressed the matter. In State v. Simpson, 804 N.W.2d 314 (Iowa Ct. App. 2011). In this case Simpson attacked a text message on foundational matters, but the message was sent contemporaneously with the underlying criminal investigation, another person was present and saw the message as it was received,  and the victim confirmed that the message presented was the same message he had been sent. it was also the admission of a party opponent.

So where's this taking us? There's no doubt that text messages, even when inadmissible, are extremely relevant to an investigation. However, unless they can be reliably authenticated it is not good practice to bet the ranch on them from a prosecutions standpoint.

And we haven't even touched the issue of whether a warrant is needed to extract the contents of a cellphone, whether it's stored messages, contacts, locational data or whatever else can be gleaned from it. The conservative approach would be to err on the side of caution and obtain a warrant.