Technologies to Detect Concealed Weapons: Fourth Amendment Limits on a New Public Health and Law Enforcement Tool

Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, Web-based Injury Statistics Query Reporting System, at <http://www.cdc.gov/ncipc/wisqars/default.htm> (last visited November, 17, 2003).

U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Firearms and Crime Statistics: Summary Findings, at <http://www.ojp.usdoj.gov/bjs/guns.htm> (last revised April 18, 2003).

Cook P.J. Ludwig J. , Gun Violence: The Real Costs (New York: Oxford University Press, 2000).

See “Gun Violence and Gun Carrying” and accompanying references.

See “New Concealed Weapon Detection Tech-nology” and accompanying references.

U.S. Const. amend. IV.

See “Constitutionality Of Suspicionless Gun Scans” and accompanying references.

Smith T.W. , 2001 National Gun Policy Survey of the National Opinion Research Center: Research Findings (Chicago: University of Chicago, National Opinion Research Center, 2001).

Hemenway D. , “The Myth of Millions of Annual Self-defensive Gun Uses: A Case Study of Survey Overestimates of Rare Events,” Chance, 10, no. 3 (1997): 6–10; Hemenway D. Azrael D.R. , “The Relative Frequency of Offensive and Defensive Gun Use: Results of a National Survey,” Violence and Victims, 15 (2000): 257–72; Cook P.J. Ludwig J. Hemenway D. , “The Gun Debate's New Mythical Number: How Many Defensive Gun Uses per Year,” Journal of Policy Analysis and Management, 16 (1997): 463–69.

Diaz T. ,—Making a Killing (New York: The New Press, 1999): At 169–71.

Kleck G. Gertz M. , “Armed Resistance to Crime: The Prevalence and Nature of Self-defense with a Gun,” Journal of Criminal Law and Criminology, 86 (1995): 150–87.

Vernick J.S. Hepburn L.M. , “State and Federal Gun Laws: Trends for 1970–99,” in Ludwig J. Cook P.J. , eds., Evaluating Gun Policy: Effects on Crime and Violence (Washington, DC: Brookings Institution Press, 2003): 345–403, at 360.

Lott J.R. Jr. Mustard D.B. , “Crime, Deterrence, and Right-to-Carry Concealed Handguns,” Journal of Legal Studies, 26 (1997): 1–68; Lott J.R. Jr. More Guns, Less Crime: Understanding Crime and Gun Control Laws, 2d. ed. (Chicago: University of Chicago Press, 2000).

Black D.A. Nagin D.S. , “Do Right-to-Carry Laws Deter Violent Crime?” Journal of Legal Studies, 27 (1998): 209–19; Ludwig J. , “Concealed-Gun-Carrying Laws and Violent Crime: Evidence from State Panel Data,” International Review of Law and Economics, 18 (1998):239–54; Donohue J. J. , “The Impact of Concealed-Carry Laws,” in Ludwig J. Cook P.J. , eds., Evaluating Gun Policy: Effects on Crime and Violence (Washington, DC: Brookings Institution Press, 2003): 287–341.

Maltz M.D. Targonski J. , “A Note on the Use of County-level UCR Data,” Journal of Quantitative Criminology, 18 (2002): 297–318.

Smith , supra note 8.

Hood M.V. III Neeley G.W. , “Packin' in the Hood? Examining Assumptions of Concealed-Handgun Research,” Social Science Quarterly, 81 (2000): 523–37.

Harlow C.W. , Firearm Use by Offenders: Survey of Inmates in State and Federal Correctional Facilities, NCJ 189369 (Washington, DC: U.S. Department of Defense, Bureau of Justice Statistics, 2001): At 10.

Decker S. Pennell S. , Arrestees and Guns: Monitoring the Illegal Firearms Market (Washington, DC: U.S. Department of Justice, National Institute of Justice Research Preview, 1995); Lizotte A.J. Krohn M.D. Howell J.C. Tobin K. Howard G.J. , “Factors Influencing Gun Carrying Among Young Urban Males Over Adolescent-Young Adult Life Course,” Criminology, 38 (2000): 811–34; Wilkinson D.L. Fagan J. , “What We Know About Gun Use Among Adolescents,” Clinical Child and Family Psychology Review, 4, no. 2 (2001): 109–32; Freed L.H. Webster D.W. Longwell J. , “Factors Preventing Gun Acquisition and Carrying Among Incarcerated Adolescent Males,” Archives of Pediatric and Adolescent Medicine, 155 (2001): 335–41.

Decker Pennell , supra note 19.

Wilkinson D.L. , Guns, Violence, and Identity Among African American and Latino Youth (New York: LFB Scholarly Publishing, 2003).

Fagan J. , “Policing Guns and Youth Violence,” The Future of Children, 12, no. 2 (2002): 133–51.

Sherman L.W. Rogan D.P. , “Effects of Gun Seizures on Gun Violence: ‘Hot Spots’ Patrol in Kansas City,” Justice Quarterly, 12 (1995): 673–93.

McGarrell E.F. Chermak S. Weiss A. , Reducing Gun Violence: Evaluation of the Indianapolis Police Department's Directed Patrol Project, NCJ 188740 (Washington, DC: U.S. Department of Justice, National Institute of Justice Research Preview, 2002).

Cohen J. Ludwig J. , “Policing Crime Guns,” in Ludwig J. Cook P.J. , eds., Evaluating Gun Policy: Effects on Crime and Violence (Washington, DC: Brookings Institution Press, 2003): 217–39.

Wilson J.Q. , “Just Take Away Their Guns: Forget Gun Control,” New York Times Magazine, March 20, 1994, at 46–47.

National Institute of Justice, National Law Enforcement and Corrections Technology Center, Technology Beat (June 1996).

Id.; Hansen M. , “No Place to Hide,” ABA Journal, 83, (August 1997): 44–48.

See “Constitutionality Of Suspicionless Gun Scans” and accompanying references.

Paulter N.G. , Guide to the Technologies of Concealed Weapon and Contraband Imaging and Detection, National Institute of Justice, NIJ Guide 602–00, (February 2001).

National Institute of Justice, National Law Enforcement and Corrections Technology Center, Technology Beat, (October 1997).

National Institute of Justice, supra note 28; Paulter , supra note 31.

Hansen M. , supra note 29; National Institute of Justice, supra note 28.

Paulter , supra note 31.

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National Institute of Justice, supra note 28.

Nacci P.L. Mockensturm L. , “Detecting Concealed Weapons,” Corrections Today, 63, no. 4 (2001): 1–4; Paulter , supra note 31.

National Institute of Justice, supra note 28; Paulter , supra note 31.

See generally, LaFave W.R. Israel J.H. , Criminal Procedure, (St. Paul, MN: West Publishing Company, 1992): 103–243. Of course, other constitutional provisions could still limit police actions if, for example, gun scanners were used to unfairly target racial or ethnic minorities.

Katz v. United States, 389 U.S. 347 (1967).

Id. at 361 (Harlan, J., concurring).

See “Constitutionality of Suspicionless Gun Scans,” and accompanying references.

Webster D.W. Vernick J.S. Frattaroli S. , “Public Attitudes Concerning New Law Enforcement Technologies and Related Strategies to Reduce Gun Violence,” (unpublished final report submitted to the National Institute of Justice, on file with authors) (February 2003): At 42.

Id. at 50–52.

Id. at 45.

Id. at 44–45.

Id. at 43, 46.

United States v. Place, 462 U.S. 696 (1983).

United States v. Jacobsen, 466 U.S. 109 (1984).

Id. at 124 n.24 (1984) (“[T]he reason [the search in Place] did not intrude upon any legitimate privacy interest was that the governmental conduct could reveal nothing about noncontraband items. That rationale is fully applicable here.”).

LaFave W.R. , Criminal Procedure , 2d. ed., § 32(b), at 60 (St. Paul, MN: West Publishing Company, 1992); Harris , supra note 62, at 29; Iraola R. , “New Detection Technologies and the Fourth Amendment,” South Dakota Law Review, 47 (2002): 8–32, at 25–26; Kamin S. , “Law and Technology: The Case for a Smart Gun Detector,” Law and Contemporary Problems, 59 (1996): 221–62, at 241; Simmons R. , “From Katz to Kyllo: A Blueprint for Adapting the Fourth Amendment to Twenty-First Century Technologies,” Hastings Law Journal, 53 (2002): 1303–58, at 1353.

B.C. v. Plumas Unified School District, 192 F.3d 1260, 1266 (9th Cir. 1999) (“[T]he level of intrusiveness is greater when the dog is permitted to sniff a person than when a dog sniffs unattended luggage … [and] the level of intrusiveness … is critical to whether the actions of government officials constitute a search.”).

Id. at 1267 (internal citations omitted).

Paulter , supra note 31, at 31.

Liptak A. , “In the Name of Security, Privacy for Me, Not Thee,” New York Times, November 24, 2002, at 4–1.

Miller C.J. , Annotation, Employment of Photographic Equipment to Record Presence and Nature of Items as Constituting Unreasonable Search, 27 A.L.R. 4th 532, 533 (1984).

The obvious objection to analogizing speed guns to gun scanners is that the speed guns target the vehicle and not the person. But this distinction is tenuous when applied, for example, to motorcycles. One could just as well argue that the gun scanner targets the gun and not the individual.

United States v. Bronstein, 521 F.2d 459 (2d. Cir. 1975) (“The magnetometer search is indiscriminate and the presence of sufficient metal willy-nilly leads to the body or baggage search.”).

Harris D.A. , “Superman's X-Ray Vision and the Fourth Amendment: The New Gun Detection Technology,” Temple Law Review, 69 (1996): 1–60, at 20–21.

Dow Chemical v. United States, 476 U.S. 227 (1986).

Id. at 238.

Slobogin C. , “Technologically-Assisted Physical Surveillance: The American Bar Association's Tentative Draft Standards,” Harvard Journal of Law & Technology, 10 (1997): 383–463, at 400; Harris , supra note 62, at 23.

United States v. Place, 462 U.S. 696, 709–710 (1983); see also Harris , supra note 62, at 33.

Id. at 707.

United States v. Beale, 736 F.2d 1289, 1291 (9th Cir. 1984).

United States v. Jacobsen, 466 U.S. 109, 115 (1984).

Id. at 119.

Place, 462 U.S. at 706 (concluding that the initial seizure of Place's luggage was permissible because the police reasonably suspected that his luggage contained narcotics); Jacobsen, 466 U.S. at 119 (noting that even before the government reopened the Fed Ex package, “it was virtually certain that it contained nothing but contraband”).

Jacobsen, 466 U.S. at 138 (internal citations omitted).

Kyllo v. United States, 533 U.S. 27 (2001).

Id. at 40.

Id. at 47 (Stevens, J., dissenting).

Id. at 35–6.

Id. at 37.

Id. at 31 (internal citation omitted).

Id. at 38.

See, e.g., United States v. 37.29 Pounds of Semi-Precious Stones, 7 F.3d 480, 485 (6th Cir. 1993) (stating that illegal narcotics are intrinsically illegal to possess) abrogated on other grounds as recognized by United States v. Certain Real Property Located at 1650 Ashton, Detroit, Wayne County, Michigan, 47 F.3d 1465, 1470 (6th Cir. 1995).

Vernick Hepburn , supra note 12.

LaFave , supra note 54; Harris , supra note 62, at 56–58; Iraola , supra note 54, at 25 n.135; Simmons , supra note 54, at 1353 n.10.

In holding that a police officer had probable cause to believe that a man carrying a concealed weapon was not licensed (and was thus in violation of Washington D.C.'s concealed carrying laws) the D.C. Court of Appeals explained it was “common knowledge … that with very rare exceptions licenses to carry pistols have not been issued in the District of Columbia for many years and are virtually unobtainable.” See Bsharah v. United States, 646 A.2d 993, 996 n.12 (D.C. 1994). And in holding that an arrest based on an anonymous tip that a juvenile was carrying a concealed weapon was improper, the Florida Supreme Court cited Florida's “shall issue” statute and noted that in Florida “individuals are permitted to carry concealed weapons with a proper license.” J.L. v. State, 727 So.2d 204, 209 (Fla. 1999). The court did not, however, specifically state that the fact that Florida was a “shall issue” as opposed to a “may issue” or “prohibited” state made any difference. See id.

Hood Neeley , supra note 17.

People v. Superior Court for County of Santa Barbara, 2 Cal.App.3d 197, 202 n.7 (1969); see also People v. Tarkington, 273 Cal.App.2d 466, 468–69 (1969) (“For the purpose of probable cause at least, the existence of a license which validates the possession of what would otherwise be contraband need not be disproved by the investigating officer. It is the burden of the person possessing the weapon to show his license.”).

Commonwealth v. Couture, 552 N.E.2d 538, 540–41 (Mass. 1990).

Vernick Hepburn , supra note 12.

Sternberg D.E. , Annotation, Burden of Proof as to Lack of License in Criminal Prosecution for Carrying or Possession of Weapon Without License, 69 A.L.R. 3d 1054, 1057 (1976).

In California, Delaware, Hawaii, Indiana, Iowa, Massachusetts, Michigan, New Jersey, Rhode Island, South Carolina, Washington, and Washington, D.C., defendants have the burden of proving or providing evidence that they were licensed to carry a gun. See People v. Superior Court for County of Santa Barbara, 82 Cal. Rptr. 463, 466 n.7 (Cal. Ct. App. 1969); Lively v. State, 427 A.2d 882, 884 (Del. 1981); State v. Jenkins, 997 P.2d 13, 32–33 (Haw. 2000); Harris v. Sate, 716 N.E.2d 406, 412 (Ind. 1999); State v. Bowdry, 337 N.W.2d 216, 218–19 (Iowa 1983); Com v. Jones, 361 N.E.2d 1308, 1311 (Mass. 1978); People v. Henderson, 218 N.W.2d 2, 4 (Mich. 1974); State v. Ingram, 488 A.2d 545 (N.J. 1985); State v. Neary, 409 A.2d 551 (R.I. 1979); State v. Clarke, 396 S.E.2d 827, 827–28 (S.C. 1990); City of Seattle v. Parker, 467 P.2d 858 (Wash. Ct. App. 1970); Chapman v. United States, 493 A.2d 1026, 1029 n.4 (D.C. 1985).

In Alabama, Connecticut, Idaho, Oregon, Pennsylvania, and West Virginia, the state has the burden of proving that the defendant did not have a license to carry a concealed gun. See DKF v. State, 651 So.2d 48, 50 (Ala. Crim. App. 1994); State v. Smith, 518 A.2d 956, 960 (Conn. App. Ct. 1986); State v. Morales, 908 P.2d 1258, 1261 (Idaho Ct. App. 1996); State v. Brust, 974 P.2d 734, 737 (Or. Ct. App. 1999); Com v. Lopez, 565 A.2d 437, 439–440 (Pa. 1989); State v. Hodges, 305 S.E.2d 278, 284 (W. Va. 1983).

Georgia, Minnesota, and New York have also considered the issue, but their courts have provided mixed signals. Compare Jordan v. State, 304 S.E.2d 522, 524 (Ga. Ct. App. 1983) (“A prima facie case is established by proof that the defendant carried a pistol in a public place and he bears the burden of proving he has a valid license.”) with Head v. State, 221 S.E.2d 435, 437 (Ga. 1975) (reversing conviction for carrying a concealed weapon because the State did not introduce evidence showing that defendant was unlicensed); compare State v. Paige, 256 N.W.2d 298, 304 (placing the burden on the defendant to come forward with some evidence of a permit) with State v. Burg, 648 N.W.2d 673, 678–79 (declining to follow the method of statutory construction in State v. Paige); and compare People v. Psilakis, 538 N.Y.S.2d 623, 624–25 (N.Y. 1989) (requiring defendant to introduce evidence that he was licensed) with People v. Ressler, 754 N.Y.S.2d 485, 488 (N.Y. 2003) (requiring only that defendant “assert[] as a defense that he possessed an appropriate firearms license”).

18 U.S.C. § 922(g)(1) (2002).

18 U.S.C. § 925(c) (2002).

18 U.S.C. § 922(x)(2) (2002).

See Waters v. Barry, 711 F. Supp 1125, 1138 (D. D.C. 1989) (noting that a curfew ordinance that criminalized the public presence of those under age eighteen would have given police officers probable cause to arrest any individuals that the officers reasonably concluded looked like a minor).

City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000).

Ferguson v. City of Charleston, 532 U.S. 67, 76 (2001).

Id. at 74 n.7.

Dery G. III , “Remote Frisking Down to the Skin: Government Searching Technology Powerful Enough to Locate Holes in Fourth Amendment Fundamentals,” Creighton Law Review, 30 (1997): 353–392, at 387; Flores S.S. , “Gun Detector Technology and the Special Needs Exception,” Rutgers Computer and Technology Law Journal, 25 (1999): 135–156, at 152; see also Harris , supra note 62, at 7; Iraola , supra note 54, at 27.

Flores , supra note 101, at 153–54.

Id. at 153; see also Harris , supra note 62, at 28.

Griffin v. Wisconsin, 483 U.S. 868, 875 (1987).

Ferguson v. City of Charleston, 532 U.S. 67, 80 (2001).

Ferguson v. City of Charleston, 532 U.S. 67, 82–83 (2001) (italics omitted).

Flores , supra note 101, at 153; Dery, supra note 101.

Ferguson v. City of Charleston, 532 U.S. 67, 81 (2001); Chandler v. Miller, 520 U.S. 305, 322 (1997).

Ferguson, 532 U.S. at 84.

Id. at 81–83 (detailing the extensive involvement of the police in the drug-testing program and concluding that the “immediate objective of the [drug tests] was to generate evidence for law enforcement purposes”) (italics omitted).

Michigan v. Sitz, 496 U.S. 444 (1990); see also United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (upholding suspicionless vehicle checkpoints near the Mexico border to prevent illegal immigration).

Sitz, 496 U.S. at 455.

In Ferguson, the Court stated that “the [Sitz] Court explicitly distinguished the cases dealing with checkpoints from those dealing with ‘special needs.’” Ferguson, 532 U.S. at 83 n.21 (2001). In truth, the language in Sitz was not particularly explicit, see Sitz, 496 U.S. at 450 (stating that the special needs cases were “in no way designed to repudiate [the Court's] prior cases dealing with police stops of motorists on public highways”), which is probably why some courts before Ferguson treated Sitz as a “special needs” case. See, e.g., Ferguson v. City of Charleston, 186 F.3d 469, 477 n.7 (4th Cir. 1999) rev'd, Ferguson v. City of Charleston, 532 U.S. 67 (2001); Pierce v. Smith, 117 F.3d 866, 873 n.8 (5th Cir. 1997).

Ferguson, 532 U.S. at 83 n.21 (2001) (distinguishing Sitz and other checkpoint cases from drug tests by stating that “[the checkpoint cases] involved roadblock seizures, rather than the intrusive search of the body or the home”) (internal citation omitted).

City of Indianapolis v. Edmond, 531 U.S. 32, 44 (2000).

Id. at 47.