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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 03-09-2005, 7:22 PM
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Greetings,

A few weeks ago, my place of employment was issued a Search Warrant, the warrant was for a reportedly stolen car. While the police searched thru my office looking for paperwork or anything that could lead them to said vehicle, they found 2 bare receivers, one an AR-15, the other one an FAL. Neither receiver belongs to me, however, both belong to a friend which has them legally and has the paperwork/receipts to prove it. The AR-15 is registered, the FAL is not from what I understand (not until it is built does it need to be registered??)

Anyways,

What is the general consensus involving the search and seizure of these receivers? The warrant was for the car and anything related to the car. The police are telling me that with the warrant, they can take anything they deem illegal.


I now know (a little too late) that the only legal way for me to have possession of these receivers is A) I be a listened gunsmith with the appropriate signoffs B) the owner of these receivers are in the same room as I am.

The police have had these parts now for 2 weeks (14 days), is there a specific time frame in which my friend can pick up his receivers? As far as I know, I have not been charged with anything. My concern is can I be charged, and if so, will they just decide to waltz on into my job and arrest me right in front of my co-workers/boss?

As for the car, it appears my other friend was sold a stolen car, his case is still pending.

Thanks, and if someone has a referral for an attorney in the Alameda County area, I might be in the market for one.
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  #2  
Old 03-09-2005, 7:53 PM
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<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Newbie:
both belong to a friend which has them legally and has the paperwork/receipts to prove it. The AR-15 is registered, the FAL is not from what I understand (not until it is built does it need to be registered??)
</div></BLOCKQUOTE>

The receiver is legally the gun since this is the part with the serial number. All AW receivers HAD to be registered w/ CADOJ whether they were assembled into complete rifles or not. Therefore, your friend did not "legally" own the FAL even if he does have receipts showing he bought it. Sounds like you need a lawyer bigtime. Best bet would be to hope they just confiscate the lowers and do not press charges, so I would'nt be pushing to get them back as you just might make them decide to prosecute.
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Old 03-10-2005, 9:05 AM
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Newbie...

Whoa, lotsa issues here. Good luck.

This is also why I've been telling folks for years that if they have illegal/unreg'd AWs, destroy them, or get them the HELL out of CA. It may seem improbable but it's not that difficult to get busted for something that is now a felony - as we've just seen above - some minor thing like a simple traffic stop, a car accident, house fire, grandma having a heart attack at your house, your kid gets popped stealing a candybar & has visit from juvy officer to your home, or you didn't pay your storage locker bill, all can lead to discovery of an unreg'd/illegal AW.

This is a terrible situation, and lots of perfectly good, perfectly innocent-in-general people will be 'entrapped' into felonies in the future by their lack of knowledge of the laws.

Now, my perception is that you're in less legal jeapordy than your friend, but this is just my opinion and I'm not a lawyer (nor do I know how much of a hard-on your DA has for such violations where non-violent simple possession laws were broken, etc.)

YOU NEED TO TALK TO A LAWYER - AT LEAST INITIAL AN 1 HR CONSULTATION. DO NOT LIE TO HIM. TELL HIM EVERYTHING IN BRUTAL DETAIL.

As far as search, I certainly have no expertise in this area but I believe the search likely turns out to be good since they were searching for not just stolen cars but information leading to stolen car(s) (paperwork, etc.) and these receivers were casually found in plain view during course of that search - they didn't take a jackhammer to floor, tear down wallboards, etc.

Now, as for the gun issues. Let's get the FAL receiver out of the way first.

Firstly, on a FAL or FAL clone, as Ted A. mentioned, the UPPER receiver is the firearm/registered part. Lower receivers of FAL rifles are NOT a firearm OR assault weapon. They can be possessed freely, sold and traded without paperwork, handed to schoolchildren as presents, tossed in the garbage, glued to your front door, etc. [Sometimes cops/DOJ agents don't know this - for example, DOJ agents busting gunshow dealer for selling HK pistol grip lowers, when HK uppers are the serialized legal firearm.]

If it's a lower receiver, you are both home free on the FAL. If it's an upper receiver, read on:

...if receiver isn't specifically marked as an FN/FAL by Fabrique National, it is NOT an assault weapon ("AW"). (Even if registered as an AW but not having any evil features, it's legal if it's not specifically an FN/FAL. (Remember, an FN/FAL upper receiver alone is considered a CA AW.) If it's a FAL clone (IMBEL, Coonan, DPMS, etc.) receiver, it's not considered an AW until certain evil parts combinations are affixed (pistol grip w/detachable mag, etc.)

Since this is after 31 Dec 2000, this FAL receiver cannot ever be registered as an AW in CA. It cannot be made into an AW in CA; it must be built into a 'CaliFAL' fixed mag FAL, or not have a pistol grip, to be legally possessed and used in Calif. These latter configurations are NOT considered AWs.

The FAL receiver is, however, a firearm - even if no parts attached. It needs to be legally transferred from your friend to be possessed by others, etc.

By contrast, an AR receiver is both a firearm and an assault weapon (AW) in & of itself within CA - no matter what parts are or aren't on it!

True Calif AWs can only be worked on by FFL gunsmiths that also hold a (rare) CA assault weapons permit. So even while a regular FFL gunsmith could work on and keep the FAL receiver, he couldn't do that with the AR lower - unless the registered AR owner were standing over his shoulder 100% of the time and took it home each night fully obeying the law (unloaded, locked case, specific destination, etc.)

Leaving both these receivers present, unlocked, in this shop - where no one even has an FFL - could perhaps be construed as illegal transfer(s) of firearms if not locked up, etc. There's something in the law about infrequent loans of firearms for under 30 days, and that may help you and even your freind -- but ONLY for the FAL receiver, not the AR receiver.

It's much worse for AWs: here, the AR receiver needs to be in the continual presence of its registered owner - and also needs the express permission of the owner of the business (not just a friendly employee, office manager, etc.) to allow its presence on the business' property. Even more so than regular guns, AWs can't just "hang around", esp unlocked, etc. except in your home or shooting range.

If these receivers are in general work area not specifically assigned to you and you don't have clearly exclusive control/possession of these receivers at the workplace, etc. then you're probably one step down the food chain for prosecution, too much grief for DA, etc. Depends on how 'open' your 'office' is. The fact that these are not complete guns may be helpful: there's nothing that 'evil' to wave in front of a jury or excite cops too much.

If prosecution for gun stuff ensues, the primary target is likely your friend. Your friend could rat you out accidentally, or intentionally to try to lower his charge from felony to misdemeanor. The receivers surely can be traced to him with little effort. That can be done quickly on the radio for at least the AR receiver - if indeed legally reg'd as an AW.

There could easily be 2 initial counts of illegal weapons transfer (or attempt) - for both receivers, and illegal transfer/storage of an AW (for the AR receiver). Not sure, but one charge could 'enhance' the other. As I said before the infrequent under-30-day loan provisions int the law may help with the FAL situation.

But I'm not sure if charges have been filed even. The longer this goes without charges, the better off both you are.

These cops may be dealing just w/stolen car case and this gun stuff on the side just gets 'lost in the system' - not uncommon for metro PDs that have a stovepipe organization. The cops may be too busy to give info over to DA office.

But if I were your friend, I'd be talking to an attorney FAST.

Losing his AWs is his smallest concern here, and essentially irrelevant now. He should FORGET about them. Trying to stay out of jail and avoid at least one felony charge is the big thing.

The very best outcome one could expect is to just lose the receivers. Misdemeanor charge w/fine would, frankly, be a desirable secondary outcome.

Your friend shouldn't even try to get these receivers back: contacting the PD/sheriff's office to reclaim them might even be more incriminating, I dunno. And even if everything were 'right' about this case - i.e., no laws violated - the attorney costs to get a $199 FAL receiver and an admittedly reasonably valuable AR receiver will far exceed their values.

I would frankly advise you to NOT talk to your 'friend' anymore til this is over/settled. Talk ONLY to your attorney. Your attorney might talk to his attorney or talk to your friend directly. You may have to bring attorney up to speed on AW law details that I've mentioned above because this is more complex than a regular gun case.

Good luck. Please don't talk anymore on this board about you/your friend's case. Do let us know of final outcome when you can, please.

If prosecuting DA found your posts here he could likely track their origin to you, if he cared to do so - and possibly use that against you or show you said something here contrary to testimony/deposition, etc.


Bill Wiese
San Jose
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  #4  
Old 03-10-2005, 10:46 AM
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Another thing:

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Technical Ted wrote:
At no time admit or state that you were in possession of the receivers for "reverse engineering". </div></BLOCKQUOTE>

Absolutely. This can just "color" the case - worse.

Prosecution/cops will not even understand why someone would want to make a single-shot, etc. AR or FAL and could readily assume that kind of analysis implies possible full-auto conversion, etc. That might raise their hackles further and direct more attention to your/friend's situation.

At this point, newbie, if you are asked ANY QUESTIONS by the relevant PD, your friend, your freind's attorney, or the DA office, you should clam up and refer them to your attorney.


Bill Wiese
San Jose
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  #5  
Old 03-10-2005, 10:58 AM
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<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by bwiese:
Tony..

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Tony:
Tell your friend to eat the loss for being an idiot (having an unregistered assualt weapon). Make sure he doesn't call trying to get his lowers back. </div></BLOCKQUOTE>

The problem was not registration. The orig post in fact said the AR was in fact reg'd as an AW. The FAL clone receiver did not have to be reg'd as an AW (unless a rare by-name FN/FAL receiver, very unlikely).

The whole issue is about being considered an illegal "transfer", and illegal AW storage.

I feel he should NOT talk to his friend except thru attorney until all is settled. This is for the good of BOTH so no chance of 'self-reinforcing cross-incrimination"!!

Bill Wiese
San Jose </div></BLOCKQUOTE>

Ah, Thanks for clearing that up Bill. I read over it too quickly.

Under no circumstances would I try to get them back though!
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Old 03-10-2005, 9:09 AM
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One further comment..

Like Ted said, the receivers are likely 'toast'.

Guns seized in crimes are usu destroyed/given to PDs. Even if not charged, the guns were involved in a 'crime' - illegal transfer/ possession, etc.

Even if not charged, your buddy's attempts to explain himself to claim his receivers could dig himself further in and perhaps offer a useful piece of info to a DA to trigger prosecution.

Bill Wiese
San Jose
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  #7  
Old 03-09-2005, 9:45 PM
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<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Technical Ted:
<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Bling Bling:
With FALS aren't the uppers registered and the lowers okay? </div></BLOCKQUOTE>

My advise is to get legal counsel ASAP and have them contact the police department to find out the disposition of his situation. The case may be sitting in the in box of the local district attorney awaiting review. The PD or the DA may be waiting to hear back from the CA DOJ to see who the registered owner of the "AW" is. </div></BLOCKQUOTE>

We really need to get AB448 passed, then it wouldn't be a crime to own a gun that's legal in the most of the US.
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Old 03-10-2005, 10:00 AM
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1st: Get a good lawyer.

2nd: Get a copy of the warrant.

3rd: I am taking a police training class right now, and this is my understanding of a similar type of scenario, under the statutory and case law w.r.t search & seizure:

The police only have the right to search for whatever is listed on the warrant. If the warrant only lists a car, they have no right to search your office or cubicle, because it is not reasonable to expect to find a car there.

Even if they have a warrant to search the office, they can only search spaces which are big enough to contain whatever they are allowed to look for. So if they were looking for, say, a gun, and there is a 3x3" box on your desk, which they open and find 5 grams of cocaine, it would be thrown out, because they should not have opened something which was smaller than what they were looking for.

4th: Get a good lawyer. You should be able to have this evidence excluded if they file charges against you.
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Old 03-10-2005, 8:24 AM
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Sounds like a hairy situation, good luck with your case!
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Old 03-09-2005, 8:14 PM
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With FALS aren't the uppers registered and the lowers okay?

I referred Newbie to our board and I really hope we can help him. My guess is that since the AW's weren't on the warrant or even close, the charges may be dropped. But I don't imagine they would return the receivers.

I'm sure CA is so much safer now that the police have those receivers.
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Old 03-09-2005, 7:22 PM
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Greetings,

A few weeks ago, my place of employment was issued a Search Warrant, the warrant was for a reportedly stolen car. While the police searched thru my office looking for paperwork or anything that could lead them to said vehicle, they found 2 bare receivers, one an AR-15, the other one an FAL. Neither receiver belongs to me, however, both belong to a friend which has them legally and has the paperwork/receipts to prove it. The AR-15 is registered, the FAL is not from what I understand (not until it is built does it need to be registered??)

Anyways,

What is the general consensus involving the search and seizure of these receivers? The warrant was for the car and anything related to the car. The police are telling me that with the warrant, they can take anything they deem illegal.


I now know (a little too late) that the only legal way for me to have possession of these receivers is A) I be a listened gunsmith with the appropriate signoffs B) the owner of these receivers are in the same room as I am.

The police have had these parts now for 2 weeks (14 days), is there a specific time frame in which my friend can pick up his receivers? As far as I know, I have not been charged with anything. My concern is can I be charged, and if so, will they just decide to waltz on into my job and arrest me right in front of my co-workers/boss?

As for the car, it appears my other friend was sold a stolen car, his case is still pending.

Thanks, and if someone has a referral for an attorney in the Alameda County area, I might be in the market for one.
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Old 03-10-2005, 10:08 AM
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I would follow some of the advice mentioned above. However, I wouldn't attempt to retrieve the lowers. With all the uncertainty over interpretation of firearms laws I would just let them go. Hopefully the police forget (or simply decide not to pursue it) and it all goes away. I wouldn't rock the boat. Tell your friend to eat the loss for being an idiot (having an unregistered assualt weapon). Make sure he doesn't call trying to get his lowers back. I'd just lay low, maybe talk to a lawyer, but wouldn't contact the police.

Best of luck =)
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Old 03-10-2005, 9:24 AM
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<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by DRH:
...unclear to me how the law works in regards to storage of registered AW's (receivers). Is it legal for your friend to store a legally registered reciever at a location he does not own? I am sure many non homeowners do this daily. When I leave to go to work and my wife is home am I loaning her the AWs illegally because they are stored in the safe and she is there alone, I think not. </div></BLOCKQUOTE>

If it's an AW - as the AR receiver is here - then there are only specified storage and transit options available.

Storing your AW at home - where it's reg'd - and you away while your wife is there is NOT a problem. That's the reg'd address and you own/rent that home, etc.

[Note that if your wife or other co-resident is a convicted felon, that may be different, esp under federal law. I recall G. Gordon Liddy's wife 'owns' all of of G. Gordon's guns now and has to keep them in a locked safe, of which G. Gordon doesn't know the combo.]

AWs - even if just a mere receiver on a Type I or II AW - must be transported in locked case to a specific destination where it's authorized to be possessed. This can be a gun range, it can be a friend's house where you want to show off your toy (as long as you have express permission), or you can take it to a gunshop for quick fix - ALL OF THESE WHILE YOU ARE PRESENT. You can't walk off and leave the AW. Type III by-feature AWs can temporarily lose their AW status when evil feature(s) are removed.)

Taking your AW to a business means you need express permission of business owner or majority shareholder, etc. - not just that your buddy who wants to measure something. He can't speak for the company even if he's a VP.

AWs can be stored at another site than reg'd address providing that AW owner has exclusive control over the area (locked, etc.) Storing your AW in a locked storage unit would be fine, for example. Those are kinda regarded like residences in many ways.

When you have ingress/egress to non-home area you have specific express permission to have an AW there. Storing it in a friend's gunsafe would NOT be fine. Storing your gunsafe - w/AWs (and in which only YOU have the combo) at your friend's house would be OK.

Bill Wiese
San Jose
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Old 03-09-2005, 10:22 PM
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Lawyer. Now.
Call the CRPA. Hopefully they can refer you to someone who specializes in firearms cases.
I suspect that it would be prudent not to discuss this here or anywhere else for that matter until you do this.
Good luck.

[rant]Not that it will help - but understand that you broke no laws, as you are not bound to obey laws that are unconstitutional.[/rant]
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Old 03-10-2005, 10:59 AM
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<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Tony:
Under no circumstances would I try to get them back though! </div></BLOCKQUOTE>

Absolutely.

No need to walk in the lion's cage and tickle his tummy


Bill Wiese
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Old 03-10-2005, 7:37 AM
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Of course, I don't agree with the laws regarding firearms in this State...but...the search will be good; the warrant was good.

Do you think nothing would happen if while searching for a stolen car that they found 5lbs of cocaine?

Unfortunately harmless pieces of steel which are legal in the rest of America rank right up there with drugs in our state.
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Old 03-10-2005, 8:19 AM
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I think this can be beat, honestly. The seizure of the receivers was unrelated to the stolen car, and that appears to be unrelated to you or the friend that owns the receivers.

There's plenty of case law, some of it all the way from SCOTUS, regarding unlawful search-and-seizure relating to search warrants. You will definately need a good attorney, and as the receivers aren't yours (and you can't be in legal possesion of them) the PD will probably want to turn them over to the rightful owner after running the serial numbers and such. And then only after they determine that the receivers weren't involved with the crime. This is why search warrants are normally very specific about what's being searched for and where at.

But be careful, even if/when you beat this thing the officers involved will know about it and probably be watching you carefully. In other words, better keep your nose clean for a while!

And like everyones said, get a good attorney!

John
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Old 03-10-2005, 8:30 AM
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Why even go to the trouble of listing what you are looking for on a warrant if ANYTHING that is found can result in a conviction? I don't presume judges have these powers. "You, police officer, go look for a stolen car and if you can't find it, FIND some other felony." How is that consititutional?

I think any good attorney should be able to have these charges dropped if the DA raises.
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Old 03-10-2005, 10:40 AM
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Tony..

<BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Tony:
Tell your friend to eat the loss for being an idiot (having an unregistered assualt weapon). Make sure he doesn't call trying to get his lowers back. </div></BLOCKQUOTE>

The problem was not registration. The orig post in fact said the AR was in fact reg'd as an AW. The FAL clone receiver did not have to be reg'd as an AW (unless a rare by-name FN/FAL receiver, very unlikely).

The whole issue is about being considered an illegal "transfer", and illegal AW storage.

I feel he should NOT talk to his friend except thru attorney until all is settled. This is for the good of BOTH so no chance of 'self-reinforcing cross-incrimination"!!

Bill Wiese
San Jose
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