IN: Test firing defendant’s gun in inventory and sending it to IBIS was not an unreasonable search

Defendant’s gun was taken during a 2004 traffic stop and test-fired with the results going into IBIS (Integrated Ballistic Identification System) under a departmental policy of testing all guns in inventory. In 2006, the gun was linked to a murder and then back to the defendant. The 2004 test of the gun was not unreasonable. Engram v. State, 2008 Ind. App. LEXIS 2035 (September 19, 2008):

Engram also argues that the results of the 2004 ballistic test should have been suppressed because the test was performed without probable cause in violation of the Fourth Amendment. As noted above, the police department test-fired Engram’s handgun pursuant to a department policy. That policy required test-firing on all handguns of specified calibers that are in police custody, as well as documentation of the results in a national database. The constitutionality of routine test-firing by law enforcement of firearms legitimately in its custody is a matter of first impression. From the record it appears that the routine testing of firearms in the custody of the Indianapolis Police Department (now the Indianapolis Metropolitan Police Department) was commonplace in 2004, and there is no indication that the policy has changed in the interim. Thus, we consider whether the routine test-firing of firearms that are legitimately in police custody violates the Fourth Amendment.

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Here, Engram has not shown that he exhibited an actual expectation of privacy in the unique markings made by his handgun on bullets and casings fired from that weapon. Engram argues in his brief that he had an expectation of privacy, but he does not support that argument with citations to the record supporting that contention. As such, Engram has waived his claim that he had a subjective expectation of privacy in the unique markings made by his handgun.

Further, Engram has not shown that the markings made by his firearm on bullets and casings constitutes a privacy interest that society is prepared to recognize as reasonable. Indeed, society has a substantial interest in maintaining a record of firearms confiscated by law enforcement incident to a valid arrest. Carrying a handgun requires a license, which is obtained only after the applicant is cleared to carry a handgun pursuant to statutory criteria. See Ind. Code §§ 35-47-2-1, -3. Given the danger of firearms when improperly used and the connection between firearms and violent crime, we cannot conclude that society is willing to recognize a privacy interest in the markings made by firearms on bullets and casings.

“Official conduct that does not ‘compromise any legitimate interest in privacy’ is not a search subject to the Fourth Amendment.” Illinois v. Caballes, 543 U.S. 405, 408, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005). Because Engram had no subjective expectation of privacy in the unique markings made by his handgun and because society is not willing to recognize such a privacy interest, we hold that the police department’s routine test-firing of weapons legitimately under its custody is not a search protected by the Fourth Amendment. See State v. Friedel, 714 N.E.2d 1231, 1236 (Ind. Ct. App. 1999) (“In order to challenge the constitutionality of a search, a defendant must have a legitimate expectation of privacy in that which is searched.”). The test-firing of Engram’s handgun revealed no private information but did provide an additional means to identify his weapon apart from its serial number. Engram’s argument that the 2004 test-firing of his handgun violated his Fourth Amendment rights must fail.