Assault & Battery How to we prove the BB gun isn't ours?

[Markleathe]

Jurisdiction

Illinois

Hi Everyone,

I hope you are well. My wife and I are parents of 2 children with no prior problems with the law much less criminal records. Last year my wife was charged with 2 counts aggravated assault and 1 count of disorderly conduct, all misdemeanors, when she was seen with a BB gun on our apartment balcony. She was cleaning the house and found my BB gun pistol which she took out onto our balcony to see if she could hide it from me because she was tired of me leaving it laying around. Unfortunately for her, there happened to be a couple utility workers right next to our balcony that day who saw the gun and, thinking it was real, called the police. My wife had already gone back inside when the police showed up and our curtains were closed so we had to idea what was happening. The police showed up in force; instead of knocking on our door they cordoned off and evacuated the building. They had a SWAT team in place and were ready to break our door down until my sister showed up (she lived in the complex too) and told them there was no threat. They still arrested my wife and took her in, calling social services in the process since our kids were present, over an unloaded BB GUN.

Here's where it get interesting; when they were about ready to release my wife, an officer came out and handed me her belongings along with a receipt for our BB gun that they had supposedly taken into evidence. I thought nothing of it until I was in cleaning our bedroom closet a couple months later and I found the BB gun that they had supposedly taken into evidence. It was in the same spot my wife had left it on the day of the incident. I had led an officer into the closet on the day of the incident and shown it to him at gunpoint, so I had assumed he had taken it at that time. I admit I nearly had a heart attack on the spot when I found that BB gun, it seemed like some twilight zone action going on. I quickly went and looked at the receipt from the police station, sure enough it said that they had the BB gun (even had a locker number). I was bewildered, why would they say they have it if they don't? I stayed bewildered for quite a few months until we finally got to see pictures of what was supposed to be our BB gun. Here's where it gets interesting: The BB gun in evidence is not our BB gun. For some unfathomable reason they planted another BB gun in evidence saying that it was ours. I can't imagine why they would do that when they could have easily just taken ours on the day of the incident. Regardless of their reasoning this is an obvious opportunity for us to have to case dismissed; if we can prove it.

HOW CAN WE PROVE THE BB GUN PLANTED IN EVIDENCE ISN'T OURS?

Some idea's I had:

· Dusting for prints, or lack of them

· Looking up the planted BB gun's serial number to trace it's origin

Please expound on these ideas and give some ideas of your own. My wife doesn't deserve these charges and this conduct is unbecoming of police officers.

Thanks for taking the time to look over this and help!

Sincerely,

Mark Leathe

 

[leslie82]

You need a lawyer - asap. Not random strangers on the Internet.

 

[Markleathe]

You need a lawyer - asap. Not random strangers on the Internet.

We have a lawyer, 2nd one as a matter of fact. Unfortunately he doesn't have many ideas on this subject so I am being proactive. I am thinking many random strangers on the internet may mean many random ideas that might be useful. Thanks for the advice though.

 

[leslie82]

We have a lawyer, 2nd one as a matter of fact. Unfortunately he doesn't have many ideas on this subject so I am being proactive. I am thinking many random strangers on the internet may mean many random ideas that might be useful. Thanks for the advice though.

Well your lawyer is the only one who can give you actual legal advice. No one on here - even those who are lawyers - can do so. Read the disclaimer.

Perhaps you need a new lawyer. Again.

 

[adjusterjack]

Does the receipt have a serial number from the BB Gun that remained in your home.

 

[Highwayman]

Stop trying to play Perry Mason. If you don't think your attorney is competent get another one ASAP.

 

[mightymoose]

What exactly is the crime she is accused of committing?
It is not illegal to own a bb gun.
Was she accused of brandishing a weapon at the utility workers, pointing it at them or threatening them with it?

 

[army judge]

What exactly is the crime she is accused of committing?
It is not illegal to own a bb gun.
Was she accused of brandishing a weapon at the utility workers, pointing it at them or threatening them with it?

Probably firing it, maybe even hitting them or their property.
I'm thinking multiple parties had weapons (BB guns) in the home.
How can you "hide" anything on an apartment balcony?
I've never known of one cop planting even one BB Gun.
Ahhhh, the love affair with guns.

 

[Markleathe]

Does the receipt have a serial number from the BB Gun that remained in your home.

No unfortunately.

What exactly is the crime she is accused of committing?
It is not illegal to own a bb gun.
Was she accused of brandishing a weapon at the utility workers, pointing it at them or threatening them with it?

She is accused of pointing at them, which she definitely didn't. Personally I think that the situation and corresponding police report might have been embellished slightly to save the officers the embarrassment of such a strong reaction for a BB gun. Especially considering the fact of the planted BB gun.

 

[Markleathe]

Probably firing it, maybe even hitting them or their property.
I'm thinking multiple parties had weapons (BB guns) in the home.
How can you "hide" anything on an apartment balcony?
I've never known of one cop planting even one BB Gun.
Ahhhh, the love affair with guns.

I know for a fact that we never had more than one BB gun. The one BB gun we have was a gift from my brother, who likes guns. My wife and I have little interest in weapons and my kids are 8 and 10 and definitely don't own any BB guns. I would not think that a police officer would plant evidence for any reason but the fact is we looked at the BB gun in the pictures that the police have as evidence and it is not our BB gun, no doubt in either of our minds. Do you have any ideas how we can prove that the BB gun in question was never in our possession? I know there are great minds on here, show off your knowledge!

 

[Markleathe]

Stop trying to play Perry Mason. If you don't think your attorney is competent get another one ASAP.

Another Lawyer might help but the truth is this isn't really a question of law, of course it's illegal to plant evidence. It's more a question of how to prove to the court that the BB gun they have as evidence isn't ours. I need ideas, not legal advice.

 

[hrforme]

do you have any pictures of yourself or other family members with the BB gun that you own? Is it in anyway different from the "planted" one? That's about the only way I think you can fight that point. It's hard to imagine that cops would go and search and find the same exact BB gun to put into evidence when they could have just confiscated yours at the time or after!

That said, that is not the point that I would fight but rather why your wife was out on the balcony with it in the first place. Probably not the safest idea to "hide" it on a balcony especially if you have kids that go on the balcony and could find it.

Heck, I am not against BB guns. My son owes the real Red Ryder one and we lost friends over the fact that I allowed him to shoot it. But I have to admit that your wife's behavior at minimum sounds strange as does the fact that you are still in possession of the BB gun and there is one in evidence. Something is not adding up....and I just don't see the cops risking their careers on this one!

 

[Markleathe]

do you have any pictures of yourself or other family members with the BB gun that you own? Is it in anyway different from the "planted" one? That's about the only way I think you can fight that point. It's hard to imagine that cops would go and search and find the same exact BB gun to put into evidence when they could have just confiscated yours at the time or after!

That said, that is not the point that I would fight but rather why your wife was out on the balcony with it in the first place. Probably not the safest idea to "hide" it on a balcony especially if you have kids that go on the balcony and could find it.

Heck, I am not against BB guns. My son owes the real Red Ryder one and we lost friends over the fact that I allowed him to shoot it. But I have to admit that your wife's behavior at minimum sounds strange as does the fact that you are still in possession of the BB gun and there is one in evidence. Something is not adding up....and I just don't see the cops risking their careers on this one!

No pictures unfortunately. My brother told me that he had bought the gun he gave me on Amazon, and so could produce a receipt, but then the prosecutor could just argue we had more than one BB gun in the house. I agree it's strange that the officers involved would risk their careers over these minor charges but the BB gun in the pictures provided is obviously not the same as ours. I recognized it as a Colman BB gun (our is not a Colman) as soon as I saw it in the evidence pictures due to the big target on the handle which marks that particular brand, plus other visible differences.

 

[army judge]

I know for a fact that we never had more than one BB gun. The one BB gun we have was a gift from my brother, who likes guns. My wife and I have little interest in weapons and my kids are 8 and 10 and definitely don't own any BB guns. I would not think that a police officer would plant evidence for any reason but the fact is we looked at the BB gun in the pictures that the police have as evidence and it is not our BB gun, no doubt in either of our minds. Do you have any ideas how we can prove that the BB gun in question was never in our possession? I know there are great minds on here, show off your knowledge!

If your spouse "touched" the item, her DNA could be recovered from it.
I suggest you ask her attorney to have the weapon swabbed for DNA.
If things are as you suggest, her DNA would never be recovered from an item she never touched, owned, or possessed.

On the other hand, you should immediately take the item you allege you found in your home to her attorney.
That item wouldn't have her DNA on it, either.
It should, however, have yours.
You would then further buttress your accusations by producing a copy of the original sales receipt.
Because if you don't, or somehow can't, the prosecution will contend that you simply purchased another item or already owned more than one.

Proving a negative has been (and remains) impossible.

 

[ElleMD]

Ultimately, the actual bb gun isn't going to matter much to the actual charges. Just a guess but I'm betting multiple bb guns have been confiscated and though yours was not picked up, one from another case got attributed to yours.

Leaving aside that the story about taking it out on the balcony makes no sense at all, especially it being in the back of your closet instead of on the balcony, your wife needs to listen to her attorney.

 

[leslie82]

"She was cleaning the house and found my BB gun pistol which she took out onto our balcony to see if she could hide it from me because she was tired of me leaving it laying around."

Do you have a storage closet or something on your balcony? Why would she think that was the best place to hide it from you? Did she change her mind and put it in the closet in the bedroom? It is very odd how it ended up from the balcony to the bedroom closet.

" Personally I think that the situation and corresponding police report might have been embellished slightly to save the officers the embarrassment of such a strong reaction for a BB gun."

Except that is not what they responded to. The call they got very likely did not say "BB gun." They likely were told that someone had a weapon out on a balcony and was aiming it at people. So that's why they reacted the way they did.

 

[mightymoose]

If police we going to go to the trouble of planting a gun it would be a real one. Nobody carries bb guns around just in case.
Keep in mind you don't have to prove it wasn't yours. The state must prove that it IS yours.

 

[army judge]

Keep in mind you don't have to prove it wasn't yours. The state must prove that it IS yours.

True, but I'm forced to make a legal distinction.

Please excuse me, as this isn't an attack on your logic.

The state must prove the ITEM they hold (which will likely be presented as evidence in court) was the ITEM alleged to have been seen by the victims on the day of the ALLEGED crime.

You make the most prescient point offered throughout this discussion, as you often do Mighty Moose, the state must prove their allegations; sufficient to convince the jury to convict the defendant at the end of the trial.

A wise defendant is one that resists the temptation to PROVE or DISPROVE anything.

However, convincing any criminal defendant that he/she should never attempt to prove anything is a tough sell.

Many a client has fired a good attorney for making the great argument you espouse my friend.

 

[Markleathe]

If your spouse "touched" the item, her DNA could be recovered from it.
I suggest you ask her attorney to have the weapon swabbed for DNA.
If things are as you suggest, her DNA would never be recovered from an item she never touched, owned, or possessed.

On the other hand, you should immediately take the item you allege you found in your home to her attorney.
That item wouldn't have her DNA on it, either.
It should, however, have yours.
You would then further buttress your accusations by producing a copy of the original sales receipt.
Because if you don't, or somehow can't, the prosecution will contend that you simply purchased another item or already owned more than one.

Proving a negative has been (and remains) impossible.

Thanks for the suggestion. My attorney thought this was a good idea coupled with dusting for prints. Either way he said we don't need to prove the BB gun isn't ours, we need to ask the prosecutor to prove that it is ours using the DNA swabbing and/or dusting for prints. All we need is a little doubt after all. And fortunately my brother does have the BB gun's original sales receipt since it was purchased on Amazon. Very helpful!

 

[Markleathe]

If police we going to go to the trouble of planting a gun it would be a real one. Nobody carries bb guns around just in case.
Keep in mind you don't have to prove it wasn't yours. The state must prove that it IS yours.

Thank you for the tip, you're absolutely right. We just need to create the element of doubt that the BB gun is ours which can be accomplished with the DNA swabbing and dusting for prints.