Criminal Law

Tourists and US gun ranges

It can be tempting to go to a gun range in the US and shoot some guns, especially fully automatic weapons such as machine guns which are prohibited in Canada. Gun ranges near Las Vegas cater especially to the tourist crowd, and a simple Google search turns up at least half a dozen all promising a very exciting time.

Unless you’re a US resident or citizen, try to resist the temptation and stay away from firearms while in the US.

The highly promoted American 2nd amendment “right to bear arms” does not apply to non-residents or non-citizens of the United States. As a Canadian tourist, you were likely admitted into the US as an alien under a non-immigrant visa (aka a tourist visa).

It’s not prosecuted often, but 18 USC 922(g)(5)(B) makes it unlawful to possess or even receive a firearm or related ammunition by tourists:

TITLE 18 – CRIMES AND CRIMINAL PROCEDURE
PART I – CRIMES
CHAPTER 44 – FIREARMS
§ 922. Unlawful acts
(g) It shall be unlawful for any person—
(5) who, being an alien—
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

“receive” seems like the broadest term, and would likely cover a tourist borrowing or renting a firearm at a US gun range.

There is an exception, but only for hunting or for shooting competitions and only if this was done at the US border:

TITLE 18 – CRIMES AND CRIMINAL PROCEDURE
PART I – CRIMES
CHAPTER 44 – FIREARMS
§ 922. Unlawful acts
(y) Provisions Relating to Aliens Admitted Under Nonimmigrant Visas.—
(2) Exceptions.— Subsections (d)(5)(B), (g)(5)(B), and (s)(3)(B)(v)(II) do not apply to any alien who has been lawfully admitted to the United States under a nonimmigrant visa, if that alien is—
(A) admitted to the United States for lawful hunting or sporting purposes or is in possession of a hunting license or permit lawfully issued in the United States;

Interestingly, this exact issue came up in a recent hearing for Marcus Hutchins. Mr. Hutchins is a security researcher from the UK who was arrested in Nevada and accused of being the author of the Kronos malware. Fortunately for him, the court was lenient based on his lack of past criminal history but it is nonetheless technically prohibited:

USA v. Marcus Hutchins
Case 2:17-MJ-0825-NJK on August 4, 2017
Page 8
18 During his time here in Las Vegas,
19 Mr. Hutchins, according to tweets that he made to his Twitter
20 account under the handle of “Malwaretech”, Mr. Hutchins
21 indicated that he had visited firearms ranges twice and used
22 firearms here.
23 As a foreign national who’s not accepted under 18
24 U.S. Code 922(y), he is a prohibited person for purposes of 18
25 United States Code 922(g)(5)(B).
[…]
Page 13
5 Regarding the gun range, the Court agrees with
6 Ms. Lobo. People — there are advertisements in the airport
7 about shooting at the range. And he showed his passport.
8 People are, of course, charged with knowing the law. However,
9 shooting guns at a range in Las Vegas is very different from
10 carrying guns on the street in Las Vegas.

United States 18 USC 922(g)(5)(B) USA v. Marcus Hutchins P8 Line 23

Police can search smartphone without a warrant on arrest

Smartphones today hold our entire digital lives. Not only do they hold our intimate emails and text messages, but much more importantly our smartphones also contains apps such as Dropbox and OneDrive which are already logged in and allows access to a treasure trove of our most personal files in the cloud. What happens when the police get a hold of our smartphone?

The good news is that the courts realize our smartphones are used to do more than just make phone calls, and recognize that a search of a smartphone is much more intrusive than, for example, a simple search of a bag. In R. v. Fearon, 2014 SCC 77, the Supreme Court wrote at at para 51:

[…] the search of cell phones, like the search of computers, implicates important privacy interests which are different in both nature and extent from the search of other “places” […]. It is unrealistic to equate a cell phone with a briefcase or document found in someone’s possession at the time of arrest. As outlined in Vu, computers — and I would add cell phones — may have immense storage capacity, may generate information about intimate details of the user’s interests, habits and identity without the knowledge or intent of the user, may retain information even after the user thinks that it has been destroyed, and may provide access to information that is in no meaningful sense “at” the location of the search […]

Moreover, the Supreme Court at para 53 recognizes that the law should not treat a smartphone differently whether it is password protected or not:

An individual’s decision not to password protect his or her cell phone does not indicate any sort of abandonment of the significant privacy interests one generally will have in the contents of the phone.

But the good news ends there. In a ruling released today, the Supreme Court held in R. v. Fearon, 2014 SCC 77 at para 64 & 83 that the police can search a smartphone without a warrant when arresting a suspect, and that this does not infringe on our constitutional rights against unreasonable search and seizure (which is what s. 8 of the Charter is all about):

I therefore reject the idea that s. 8 of the Charter categorically precludes any search of a cell phone seized incidental to a lawful arrest.

[…]

To summarize, police officers will not be justified in searching a cell phone or similar device incidental to every arrest. Rather, such a search will comply with s. 8 where:

(1) The arrest was lawful;

(2) The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:

(a) Protecting the police, the accused, or the public;

(b) Preserving evidence; or

(c) Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest;

(3) The nature and the extent of the search are tailored to the purpose of the search; and

(4) The police take detailed notes of what they have examined on the device and how it was searched.

This is in contrast to a series of rulings by the Supreme Court recently in R. v. Spencer, 2014 SCC 43, R. v. Vu, 2013 SCC 60, and R. v. Telus, 2013 SCC 16, where the court concluded that searches of a computer in a residence required a separate warrant for computer data, and searches of records at a telecommunications provider also required a warrant.

Fearon was a narrow 4-3 decision with a strong dissent, and in time it may be overturned. However,  given the state of the law at the moment, it would be prudent to lock your phone with a strong password (instead of a biometric feature like a fingerprint or a weak 4 digit passcode), and to enable strong data protection/encryption.  Finally, keep in mind that if questioned by the police, you are under no obligation to answer any questions, incriminate yourself, or to disclose your password to the authorities.

%d bloggers like this: