Possession of a Firearm or Ammunition by Convicted Felon
If you are a convicted felon and have been arrested for possession of a firearm, you are facing the possibility of serious prison time. Local celebrity and rapper Maurice Young, AKA “Trick Daddy,” was arrested in April of 2014 on charges of firearm possession and possession of ammunition by a convicted felon. Police arrested Trick Daddy after he was spotted backing out of his driveway in a vehicle that was unregistered. Police used this violation to obtain a search warrant for a K-9 sniff search of his home. Despite the police never seeing Trick Daddy near the weapons or ammunition, they were able to charge him with possession of the contraband. This was because he had “constructive possession” and dominion and control over his house and the contents within. Constructive possession means, in essence, that the person knew what the contraband was; knew where it was; and could have taken physical possession of it at any time.
Dominion and Control
The defendant does not have to be the sole person with dominion and control over an object to be found guilty of possession of that object. The item can be within reach or accessed by many people and the defendant could still be found guilty. Additionally, multiple people can be charged with possessing the same weapon or banned substance. The individual does not have to be the legal owner or renter to establish constructive possession, but those two factors are strong evidence against a defendant. Police officers and prosecutors can use various types of evidence to show that the individual was in possession of the contraband, without their ever seeing the person near the items.
If you are not the legal owner or renter of the area in which the contraband was found, the police must gather and present evidence that shows the defendant was a temporary resident or was present in the home near the weapons or banned substance. Further evidence needs to prove that the defendant was within the home and had constructive possession, generally meaning they were knowingly within reach of a firearm or banned substance. Police often present evidence such as receipts or bills at the house, mail that is found in the house and addressed to the defendant, the defendant’s possession of keys to the house, proof that the defendant’s children were in the house, and the defendant’s admission that they had recently been inside the house.
Felons are sometimes charged with possession of a firearm when they are with a group of people in a home, club, or vehicle. Being within reach of the weapon, or if it is sitting out in the open, is known as having constructive possession. An experienced attorney may be able to argue that the defendant was not knowingly or voluntarily in possession of a firearm to defeat the charge.
Potential Penalties
Under Florida law (Sec. 790.23, Florida Statutes), possession of a firearm by a convicted felon is a second-degree felony, punishable by up to 15 years imprisonment. If the convicted felon is also a gang member, as the law defines the term, the charge becomes a first-degree felony, punishable by up to life in prison.
The federal criminal code [18 U.S.C. Sec. 922(g)(1) et al.] handles these matters even more severely. If a person has only one felony conviction, but that conviction is for a crime of violence or a qualifying drug offense, the person still faces a minimum sentence of 33 to 41 months in prison, under the Federal Sentencing Guidelines, and a potential maximum sentence of 10 years in prison. The penalties increase dramatically if the person has two or more such convictions; if the firearm in question is semiautomatic and capable of accepting a large-capacity magazine; if the firearm was stolen; or if other qualifying factors apply.
Worse, if someone is convicted in federal court of a 922(g)(1) violation and one or more other counts in the same indictment, the sentence for the 922(g)(1) violation must run consecutive, not concurrent, to the sentence on the other count(s). In other words, the person will have to serve his or her sentence on the other counts, before beginning to serve the time for the firearms conviction. This provision, which cannot be waived by a judge, can cost him or her up to seven additional years of incarceration, depending on the circumstances.
How to Defend Against These Charges
There are many general defenses to the charge of illegally possessing a firearm, depending on the facts of your case. Defenses include mistake of fact or mistake of law. A skilled attorney may be able to argue that the search and seizure of the weapon was illegal and the fruits of that illegal search and seizure should be excluded from being entered into evidence. Or the attorney may be able to show that the defendant did not have dominion and control over the weapon, while other parties did.
If you or someone you know has been arrested in the Miami-Dade or Broward area, contact The Tony Moss Firm, L.L.C., today. We can provide you with a personalized defense that caters to your individual circumstances.
