Thursday, March 8, 2007
Use of Information Provided by Gun Dealer Voids Warrant to Search His Premises—Appeals Court
By KENNETH OFGANG, Staff Writer
Information supplied by a firearms licensee as mandated by the National Firearms Act may not be used to obtain a warrant to search the dealer’s home and business premises, the Fourth District Court of Appeal ruled yesterday.
Div. Three affirmed Orange Superior Court Judge Francisco Briseno’s order suppressing evidence obtained in a search by agents of the California Department of Justice and his subsequent dismissal of charges against Andy Sun.
Sun was charged with 53 weapons violations after agents executing a warrant discovered more than 500 assault weapons and 23,000 large-capacity magazines.
Briseno ruled that the evidence was illegally seized because 26 U.S.C. Sec. 5848 provides that information provided to the federal government in compliance with the NFA “may not be used, directly or indirectly, as evidence against [the person providing the information] in a criminal proceeding.”
The statute does not apply when the defendant is charged with furnishing false information or with a crime committed after the information was provided. In Sun’s case, the warrant was issued pursuant to an affidavit in which a federal inspector said he examined Sun’s inventory and noticed that it listed a number of assault weapons whose possession violates California, but not federal, law.
The inspector said he personally verified that Sun was in possession of some of those weapons before turning the matter over to the Department of Justice.
In concluding that the trial judge was correct in suppressing the evidence, Presiding Justice David Sills noted that Sec. 5848 was adopted in response to earlier court rulings striking down provisions of the NFA as violative of the Fifth Amendment. A 1971 U.S. Supreme Court ruling, the presiding justice noted, held that the adoption of Sec. 5848 precluded a claim that requiring the furnishing of information may require the licensee to self-incriminate.
“Such strong assurances that the Fifth Amendment is not violated are entirely undermined if, as the District Attorney encourages us, we hold the provisions of the privilege statute are to be limited to actual trial evidence and do not apply to information that triggers a prosecution,” Sills explained.
He went on to say:
“Sun is faced with neither a crime resulting from his falsification of his NFA documents nor a future crime occurring subsequent to the transactions reflected in his NFA records. The documents reviewed by the federal inspector reflected Sun’s concurrent possession of firearms. Thus, he properly was protected by the privilege or immunity provisions of 26 United State Code section 5848 at the time the federal inspector breached the confidentiality protections of 26 United States Code section 6103 and divulged the privileged information to the state authorities.”
Sills went on to reject the contention that the evidence is admissible because the federal exclusionary rule does not apply when a law enforcement agency relies in good faith on a facially valid warrant.
In this case, Sills reasoned, federal authorities did not act in objective good faith when they provided state agents data that federal law required them to keep confidential. And the state authorities did not act in objective good faith by using information that the magistrate did not know was obtained in violation of federal law.
“Such manipulation of a magistrate will be repeated if we permit one police agency to use information that another police agency is barred from using,” he wrote. “Police reliance cannot be deemed in ‘objective good faith’ when the original agent is aware the incriminating information was obtained by less than legal means.”
The case is People v. Sun, G035328.
Copyright 2007, Metropolitan News Company