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View Full Version : Can a convicted felon be in the same house as a gun?


Jwood562
08-14-2009, 7:46 PM
Just a quick question that had me thinking today. I am a LEO and want to bounce ideas or experiences off you other LEOs or someone with this experience.

For example. Boyfriend/girlfriend who live together. One is a convicted felon in the state. can the other own a gun in the house?

I know it gets in the gray area of "possession" like if ammo/gun was left in a common area. but what is the gun is left in a common area like the nightstand?

does the owner of the gun need to have it locked up all the time where the felon does not have access?

what are your thoughts?

Fire in the Hole
08-14-2009, 7:51 PM
I remember G. Gordon Liddy's response to a caller on his radio talk show, who commented that the G Man was a convicted felon and not allowed to own any firearms. The G Man agreed, saying, "You are correct sir, as a convicted felon, I'm not allowed to own any firearms. But my wife owns several hundred of them."

Blue
08-14-2009, 7:53 PM
IIRC gun can be in the house, but the felon CANNOT have ANY access to it.

CSDGuy
08-14-2009, 8:00 PM
Just a quick question that had me thinking today. I am a LEO and want to bounce ideas or experiences off you other LEOs or someone with this experience.

For example. Boyfriend/girlfriend who live together. One is a convicted felon in the state. can the other own a gun in the house?

I know it gets in the gray area of "possession" like if ammo/gun was left in a common area. but what is the gun is left in a common area like the nightstand?

does the owner of the gun need to have it locked up all the time where the felon does not have access?

what are your thoughts?Not a LEO here... but the law is pretty clear. The Felon can NOT have access to a firearm and ammunition. The firearm needs to be secured in such a manner that the felon can not access it. I would consider a firearm hidden, but not secured, in a nightstand, to be felon in possession. The fact that the Felon can't own a firearm doesn't make the other person lose their rights to own a firearm. It just has to be secured in such a way that the Felon can't have access to it...

Royal PITA if you ask me... I'd rather not have to deal with that. Better for the couple to not reside in the same residence...

Jwood562
08-14-2009, 9:16 PM
Not a LEO here... but the law is pretty clear. The Felon can NOT have access to a firearm and ammunition. The firearm needs to be secured in such a manner that the felon can not access it. I would consider a firearm hidden, but not secured, in a nightstand, to be felon in possession. The fact that the Felon can't own a firearm doesn't make the other person lose their rights to own a firearm. It just has to be secured in such a way that the Felon can't have access to it...

Royal PITA if you ask me... I'd rather not have to deal with that. Better for the couple to not reside in the same residence...

that is more of what I was thinking. If you lived with a convicted felon you would always have to lock it in a safe where the felon could have no access at all to it or the ammo.

sucky situation. oh well thank for the input

sac550
08-15-2009, 9:17 PM
12021 doesn't prohibit access. Urban myth that a felon can't live in a house where a roommate has a gun.

Jwood562
08-15-2009, 9:53 PM
12021 doesn't prohibit access. Urban myth that a felon can't live in a house where a roommate has a gun.


what exact sub-section are you referring to.

a felon cannot be in possession of a firearm/ammo and we are discussing that any ammo/firearm that is kept in a common area can be deemed as possession.

BigDogatPlay
08-15-2009, 9:55 PM
Access to a stored firearm does not necessarily constructive possession make in my mind. If the firearm is stored within the guidelines of the safe storage law in someplace that can be articulated as not necessarily a common area between the two would be an awfully hard felon in possession to prove.

For that matter, if the safe storage law is being obeyed I'd be thinking that even in a common area it would be hard to peg the felon for possession.

yzernie
08-16-2009, 10:02 AM
A person who is not a felon can possess firearms in the same residence. Our DA has established guidlines regarding such a situation. I'm not in favor of a felon having any access to a firearm however, this is a perfect example of the letter of the law vs the spirit of the law.

sac550
08-16-2009, 10:19 AM
Lets say my wife is felon and I am not. I can keep a loaded gun in my night stand and she is not in violation of 12021. 12021 only deals with owning/possessing. She doesn't own it or possess it.

Think of it like someone who has a medical marijuana prescription. If I have a prescription for MJ and my wife doesn't. Lets say I have an ounce of MJ on my night stand. It is not illegal for me to have it. However, it would be illegal for my wife to possess it. However, you couldn't arrest her for possession of marijuana because it is in our room. For some reason when it comes to guns people forget to use common sense.

The only time you can get in trouble for being in the same house/room with a gun that doesn't belong to you is if you are on probation or parole. You could find yourself in trouble with your PO and get arrested for VOP or 3056, not 12021. However, once you are off probation/parole you would be fine.

sac550
08-16-2009, 10:20 AM
what exact sub-section are you referring to.

a felon cannot be in possession of a firearm/ammo and we are discussing that any ammo/firearm that is kept in a common area can be deemed as possession.

All sections. They all require you to possess or own. Show me where in 12021 you see the word "access".

tyrist
08-16-2009, 10:54 AM
All sections. They all require you to possess or own. Show me where in 12021 you see the word "access".

If the felon is in control of the room where the gun is then that could be seen as possession.

sac550
08-16-2009, 11:52 AM
If the felon is in control of the room where the gun is then that could be seen as possession.

So then in my marijuana scenario you would arrest my wife for possession of MJ when it is prescribed to me. Or how about as we speak my wife has a prescription for Vicodin on the kitchen counter. She is at the store and I am in the same room with it. If an officer were to come into my house right now, under your theory, I should be arrested for 11350 (felony poss controlled substance). Why then should the prescription be looked at any differently then a gun? Does anyone really think access equals possession?

I agree you may get some cop that doesn't think the situation through and just wants to hook/book. When it comes to guns cops have a hard time leaving guns behind and think they should take them. but that doesn't make it right or illegal. Know the law and be able to articulate your position. common sense usually does win out.

Jwood562
08-16-2009, 3:57 PM
All sections. They all require you to possess or own. Show me where in 12021 you see the word "access".

just like if the gun were in a car. all people in the car can be charged with "possession" because it was in the passenger area of the car where they all have "access" to it. it happenes all the time, same thing with narcotics.

If I came in contact with that type of situation where I was in a house and there was a firearm in a common area and one person was a convicted felon, If I did not charge the felon with possession I would at least take the gun in for safe keeping because the legal owner of the firearm is not following the law and having it secured where the felon could not have access to it

sac550
08-16-2009, 4:11 PM
just like if the gun were in a car. all people in the car can be charged with "possession" because it was in the passenger area of the car where they all have "access" to it. it happenes all the time, same thing with narcotics.

If I came in contact with that type of situation where I was in a house and there was a firearm in a common area and one person was a convicted felon, If I did not charge the felon with possession I would at least take the gun in for safe keeping because the legal owner of the firearm is not following the law and having it secured where the felon could not have access to it

You are comparing apples to oranges. First you can't arrest everyone in the vehicle (legally). If the gun is under the back seat, you can't arrest the front seat passengers. 2nd 12025 requires the DA prove the person knew the gun was there and caused it to be placed there. Again access will not get your case filed. However, your scenario is different the situation we are talking about. In your scenario it would be illegal for anyone of them to have the gun concealed in the car or to possess drugs. Under your theory if the gun was concealed in the car and the gun belonged to the driver who has a CCW you could arrest the passengers for 12025 because they have access?

Again my scenario about the prescription pills is comparing apples to apples and I think we all agree you wouldn't arrest the person for possession of vicodin. Why is so hard for people to substitute a gun for the pill bottle
and come up with the same conclusion?

The question we are talking about is, is it legal for a felon to live with a person (wife or roommate) who owns a gun and isn't prohibited. The answer is yes. If you want to get sued for 42 U.S.C 1983 lawsuit then go ahead and arrest someone for living in a house where a someone lawfully possess a firearm.

sac550
08-16-2009, 4:18 PM
If I came in contact with that type of situation where I was in a house and there was a firearm in a common area and one person was a convicted felon, If I did not charge the felon with possession I would at least take the gun in for safe keeping because the legal owner of the firearm is not following the law and having it secured where the felon could not have access to it[/QUOTE]

What law requires someone to secure their firearm so a felon can't have access? Please post the PC or U.S Code you are thinking of. If you were to take my gun for safekeeping in the situation you are talking about I would sue for a 4th amendment violation. There is "no safekeeping" exception to the 4 amendment when it comes to taking firearms. Remember during Katrina the government took the firearms from law abiding citizens for "safekeeping". The city and police all got sued for 4th amendment violations and lost! The gun owners received huge settlement. However, you could also be prosecuted for depriving a citizen of his/her constitutional rights in federal court.

tyrist
08-16-2009, 4:44 PM
So then in my marijuana scenario you would arrest my wife for possession of MJ when it is prescribed to me. Or how about as we speak my wife has a prescription for Vicodin on the kitchen counter. She is at the store and I am in the same room with it. If an officer were to come into my house right now, under your theory, I should be arrested for 11350 (felony poss controlled substance). Why then should the prescription be looked at any differently then a gun? Does anyone really think access equals possession?

I agree you may get some cop that doesn't think the situation through and just wants to hook/book. When it comes to guns cops have a hard time leaving guns behind and think they should take them. but that doesn't make it right or illegal. Know the law and be able to articulate your position. common sense usually does win out.

The weed both of you can be arrested...the vicodin nobody. What do you think we do when we find an illegal gun in the house and nobody will claim it?

sac550
08-16-2009, 4:48 PM
But why is the vicodin different then the gun? There is no difference. It is illegal for one occupant to have and legal for the other. How would you arrest both occupants for the weed when one person has a prescription for it under 215?

We are not talking about going into a house and finding a gun that no occupant is claiming. That is a different scenario that doesn't apply to the question that started all this.

tyrist
08-16-2009, 4:59 PM
But why is the vicodin different then the gun? There is no difference. It is illegal for one occupant to have and legal for the other. How would you arrest both occupants for the weed when one person has a prescription for it under 215?

We are not talking about going into a house and finding a gun that no occupant is claiming. That is a different scenario that doesn't apply to the question that started all this.

You need to remember all we need is probable cause....basically it probably happened. A convicted felon in control and ownership of a room in a residence which contains a firearm. That suspect probably has/had possession of that firearm.

Marijuana is still contraband whether you have a prescription or not. There is also no legit way of verifying the legality of any of the prescriptions anyway...the whole issue is so grey. Just book the weed issue the cite and let the City Attorney figure it out. It's still 100% a violation of federal law anyway so you are legally covered as far as unlawful arrests.

The prescription medicine possession scenario is just silly.

sac550
08-16-2009, 5:17 PM
I suggest you read the latest 9th Circuit opinions and 3rd District opinions which say officers can be sued for seizing marijuana when the person has a prescription. Federal law doesn't apply to possession of marijuana (cultivation or possession for sale is a federal crime). However, again we are getting off topic.

Why is the prescription scenario different then a gun? nobody can answer that. And you better believe when a good civil attorney is giving his closing while you are in federal court he/she will ask the jury to think of the scenario.

You said, "A convicted felon in control and ownership of a room in a residence which contains a firearm." I would agree with you, if that was the question. However, the scenario is the felon lives in a room where a non-prohibited person possesses a firearm. If the felon lived alone, then yes he/she is a 12021 arrest.

"That suspect probably has/had possession of that firearm", well that is not 51 % so you don't have PC to arrest. You have to have facts not just a hunch.

I am not trying to be argumentative. I just think when it comes to guns officer often open themselves up to being sued. Stewart Katz makes a lot of money suing cops for bad gun arrest, even when the officer had good intentions.

If someone can tell me why the Vicodin scenario is not right on point I would love to hear it.

Jwood562
08-16-2009, 6:36 PM
I understand your aguements.

Lets touch a little back on my convicted felon roomate scenario to try and clear things a little bit. So you would be comfortable with the gun in the living room or kitchen where the convicted felon resides? That would be an easy arrest and all the PC exists to make an arrest. Would the DA file on it? mayabe a 50/50 chance, but the PC exists. And if the arrest is made the gun would be taken from the rightful owner anyways. they probably will get it back eventually.

Honestly if any officer stepped into a home and there was an unsecrued firearm that the restricted person had access to for example on the dining room table. that is enough for a PC arrest.

Now a little on the dope or gun in a car. If it in the center console of the vehcile and all four people in the car are within arms reach and no one takes responsibility for it, they can all be arrested for it.

Now my experiences for "medical" marijuana. Everyone and their mom has a license to have medical marijuana. In the field I have no way to validate if their prescription is real or not. All of the cards look different, the doctors phone numbers never work or they do not answer. I wish the state would come together and make one universal looking card (like a dirvers license) so it make it easy for us to validate it. Plus I have heard many different things like the person can have the marijuana but not transport it on their person or in their car unless just filling their prescription. maybe someone can shed some light on that. Marijuana is not the crime of the century and I usually take the spirit of the law with that issue.


now with your Vicodin scenario. it can be pursued in the same manner. If I found roomate near other guys bottle of pills I would definatly ask questions but probably not prusue the point I would if it were a gun. Why you ask? honestly because pills do not pose a risk of killing me but guns do. That is why situations with guns get pursued a lot harder by police.

There hopefully everything is clear as mud now right boys :)

sac550
08-16-2009, 6:56 PM
well we will just have to a agree to disagree. If the gun is on the kitchen counter and nobody claims it and it is the felons house then he goes. However, if it is on the kitchen table and the wife who is home claims it and lets say there is a DROS in her name there is no-way you can take him.

The fact that it is a gun and not a pill bottle doesn't make a difference when it comes to the 4th amendment and taking some into custody or seizing their property. Obviously you could secure the gun while you were on scene for officer safety.

Jwood562
08-16-2009, 7:59 PM
Agreed. Honestly thanks for bringing valid arguemdnts and a very educated point of view into the arguements and getting your points across clearly. Thnks to everyone who replied in this topic

sac550
08-16-2009, 8:13 PM
Agreed. Honestly thanks for bringing valid arguemdnts and a very educated point of view into the arguements and getting your points across clearly. Thnks to everyone who replied in this topic

Yes, I agree that some very good points were brought up and discussed in this debate. I have great respect for people that can articulate a position and argue their point (right or wrong).

tyrist
08-16-2009, 8:57 PM
Sac550

The issue is being placed into a very small box. There are so many issues which can come into play and change at anytime. The mere presence of a firearm inside of a dwelling with the legal owner and a convicted felon may not result in arrest. I could list hundred of circumstances which could occur that link the felon to the firearm and would result in arrest even if it was legally owned by another person inside of the residence. I just merely stated it could be seen as possession.

If a firearm was owned by the felons wife and it had a trigger lock on it that the felon was in possession of the key etc. The situation can be dynamic and change throughout the day which is why it is not advisable to have a firearm which a felon could have any access too.

oddjob
08-16-2009, 9:32 PM
To the original question...the answer is yes. The felon can be in the same house as a gun. As long as the felon has no access to the weapon (like dad has guns locked in a safe the felon son can't get to). I've done enough work with parole agents to figure this one out. Hope this helps.......

tyrist
08-16-2009, 10:08 PM
To the original question...the answer is yes. The felon can be in the same house as a gun. As long as the felon has no access to the weapon (like dad has guns locked in a safe the felon son can't get to). I've done enough work with parole agents to figure this one out. Hope this helps.......

Being a convicted felon is different than parole. If you are on parole it is a parole violation to even have access to a firearm. It changes when you have discharged.

Ron-Solo
08-17-2009, 8:14 AM
If I have reasonable cause to believe the felon has control of the firearm, he goes, period.

No freebies for felons.

You have to work hard to get a felony conviction in California, and I don't care if it is for armed robbery or sneaking into an orchard and stealing more than $101 worth of avocados or oranges from an orchard. If you get a felony conviction for that, you've done a lot of bad things that were misdemeanors, which means you are STUPID and deserve everything you get, and probably aren't smart enough to be trusted with a gun.

Same with anyone who falls under the 3 strikes guidelines. You're done, go away forever.

rambo
08-18-2009, 8:59 PM
So then in my marijuana scenario you would arrest my wife for possession of MJ when it is prescribed to me. Or how about as we speak my wife has a prescription for Vicodin on the kitchen counter. She is at the store and I am in the same room with it. If an officer were to come into my house right now, under your theory, I should be arrested for 11350 (felony poss controlled substance). Why then should the prescription be looked at any differently then a gun? Does anyone really think access equals possession?

I agree you may get some cop that doesn't think the situation through and just wants to hook/book. When it comes to guns cops have a hard time leaving guns behind and think they should take them. but that doesn't make it right or illegal. Know the law and be able to articulate your position. common sense usually does win out.

I agree and clearly see your view!