A Ballistics Test is a Search

by: Ryan Scott • November 10, 2023 • no comments

Assume your client is arrested and his firearm is seized. There wasn't a warrant, just PC to seize the firearm. The police subsequently perform a ballistics test on the firearm and connect the firearm to earlier shootings. In that situation, you absolutely should move to suppress the ballistics test and all evidence that flowed from it. The reasons are as follows:

I. A Ballistics Test is a Search

Testing the firearm – including ballistics testing, which reveals characteristics of that firearm that are not plainly visible -- is a search under Article I, section 9, of the Oregon Constitution and the 4th Amendment of the United States Constitution (made applicable to state prosecutions through the due process clause.)

Testing that reveals something about an item, other than confirmation of what that item is, is a search.

In State v. Binner, 131 Or. App. 677, 886 P2d 1056 (1994), the defendant consented to a search of his blood to determine its alcohol content. That test indicated that his blood alcohol content was below the legal limit. Two weeks later, the police had his sample tested for THC content. The Court of Appeals held that the search of the defendant’s blood for a chemical other than the chemical for which he consented to a search exceeded the scope of his consent, and therefore violated the defendant’s privacy interest under Article I, section 9. Id. at 683.

Binner is important for two reasons. First, it holds that testing is a search, since it reveals something about the evidence being tested that is not apparent to the naked eye.

Secondly, Binner holds that the otherwise lawful seizure of evidence – as the blood was lawfully seized – does not equal the right to search that evidence.

In Walter v. United States, 447 US 649, 65 L Ed 2d 410, 100 S Ct 2395 (1980), hundreds of boxes of 8 mm film were mistakenly delivered to a business. Employees there opened the packages. The exterior of the individual film containers had “suggestive drawings” and “explicit descriptions of the contents” indicating that “they contained obscene pictures.” 447 US at 651-52. The employees contacted the FBI, and an agent picked up the packages. FBI agents subsequently viewed the videotapes using a projector, without first applying for a warrant. Id. at 652. The court noted that the FBI agents “lawfully acquired possession” of the films. Walter, 447 US at 649. Although the boxes evidently announced their contents, the court concluded that viewing the films without first obtaining a warrant violated the Fourth Amendment. Id. at 659.

Even though the cases before us involve no invasion of the privacy of the home, and notwithstanding that the nature of the contents of these films was indicated by descriptive material on their individual containers, we are nevertheless persuaded that the unauthorized exhibition of the films constituted an unreasonable invasion of their owner’s constitutionally protected interest in privacy. It was a search; there was no warrant; the owner had not consented; and there were no exigent circumstances.

It is perfectly obvious that the agents’ reason for viewing the films was to determine whether their owner was guilty of a federal offense. To be sure, the labels on the film boxes gave them probable cause to believe that the films were obscene and that their shipment in interstate commerce had offended the federal criminal code. But the labels were not sufficient to support a conviction and were not mentioned in the indictment. Further investigation—that is to say, a search of the contents of the films—was necessary in order to obtain the evidence which was to be used at trial.

The fact that FBI agents were lawfully in possession of the boxes of film did not give them authority to search their contents. Ever since 1878 when Mr. Justice Field’s opinion for the Court in Ex parte Jackson, 96 US 727, [24 L Ed 877 (1877),] established that sealed packages in the mail cannot be opened without a warrant, it has been settled that an officer’s authority to possess a package is distinct from his authority to examine its contents.”

Walter, 447 US at 653-54.

Again, Walter holds that lawful possession does not give the state authority to test or inspect the seized item under the 4th Amendment to the United States Constitution, made applicable to the states via the Due Process Clause of the 14th Amendment. .

Under Article 1, section 9, when ordinary property that can be lawfully owned or possessed is seized lawfully by the police, but without a warrant, the “state may ‘observe, feel, smell, shake and weigh’ the property ‘or otherwise 'thoroughly examine' its exterior without obtaining a warrant,’ but the state's ability to examine the interior of the property without invading a protected privacy interest ‘depends on whether the contents are open to view or the property by [its] very nature announce[s] [its] contents (such as by touch or smell)'." State v. Sines, 287 Or. App. 850, 864 (2017) (citing Newcomb 359 Or at 765 quoting Owens, 302 Or 196, 206 (1986)). A good example of this is a transparent container versus an opaque container - if the police possess a transparent container lawfully, but do not have a warrant to search it, they may still open the container without conducting a search, “because they already know exactly what they will find,” on the other hand, “Article 1, section 9 protects the contents of an opaque container because the contents are secret, that is, not presently discernible.” State v. Sines, 287 Or App at 874-75.

In Sines, the defendant’s housekeeper began to suspect he was having sex with his nine-year old daughter, and wanting to do something about it, she took a pair of the girl’s underwear from the house and gave it to Deschutes County Sheriff’s Office. Sines, 287 Or App at 854. The police had the underwear tested at the Oregon State Police Crime Lab, where they tested the underwear for both semen and spermatozoa, which involved extracting the contents of the underwear with liquid and then looking at the liquid extraction under a microscope. Id., at 859-60. The court ruled that such testing was an impermissible as “[c]utting pieces from underwear, chemically testing some of the pieces, extracting the contents of one piece into liquid, and examining the liquid under a microscope would certainly be "searches" under ordinary circumstances,” and the police’s lawful possession of the underwear did not “automatically extinguish the owner’s privacy interest in the item.” Sines, 287 Or App at 876. The court rejected the state’s argument that the testing in Sines was effectively the same as a field test on contraband, saying that if “the testing will reveal information other than whether or not the substance is contraband, it does invade a protected privacy interest because the police do not know exactly what they will find—the information is still secret.” Id., at 880.

Sines is exactly on point. In this case, a firearm was seized at the same time that defendant was arrested. It was never fired by defendant or anyone else during the incident for which defendant was arrested. The subsequent testing and test firing was a search because it revealed characteristics of the firearm that were not visible to the naked eye, just like the THC in Mr. Binner’s blood (which had been lawfully seized by the police), or the videdotapes in Walters and the underwear in Sines. The police did not know exactly what they would find; they were not merely testing an item to confirm whether or not it was the contraband that they already suspected that it was. Thus, for the reasons given in Walters and Sines, the lawful, warrantless seizure of the firearm did not destroy defendant’s privacy interest in the firearm and therefore the search of that firearm required a search warrant.

Since no search warrant was obtained, the results from the testing of the firearm should be suppressed. Furthermore, any and all search warrant affidavits that relied on those results should have the results stricken from the affidavits and the search warrants looked at anew.