Concealed weapon

[fatelk]

I know internet legal advice is worth what it costs, but I thought I'd throw this out there and see if anyone has some thoughts on it.

A friend of mine borrowed a car. He got pulled over for some minor reason, and the officer saw some empty rifle shells on the seat or something, and asked if there were any firearms in the car. Being an honest young man, he said "I don't know; it's not my car". The officer got him out of the car, handcuffed him, stuck him in the cop car, searched the car and found a gun (not his, belongs to the owner of the car).

It's a concealed weapon violation, and the charge says "knowingly". It's a misdemeanor with a fine. A lawyer told them he could most likely beat it in court, but it would cost a lot more than the fine.

Any thought on this? These folks are some of the most decent and honest people you would ever meet. I don't mean to bash cops at all, and don't want this to be that kind of thread, just looking for thoughts.

 

[okespe04]

Shop for lawyers and try to get the charge dropped at any cost, a misdemeanor on a 20 year old's record can close a lot of doors. Even if it is $5000, a misdemeanor on his record could lose him a 50k a year job. Trust me I know from experience, I have overcome my past but that one misdemeanor that stuck caused me a lot of problems.

The story does seem very unjust but at this point its up to the courts.

 

[RevolvingGarbage]

It seems ridiculous to me that what in my state is a lawful means of keeping a weapon nearby for self defense, is in fact a crime in yours.

Im sorry I cant provide any actual legal advice, but if there is any logic and justice left in our system, he should certainly beat that charge.

 

[kingpin008]

Unfortunately, the law looks at it like this: Kid is in care, custody & control of the car, and therefore "owns" everything in it.

As stated above, I'd spend what it cost to fight this. It might not be just, but they have him dead to rights if they want to pursue it.

 

[MarkDozier]

I don't think he needs a lawyer. Have the owner go to court and fuss up to leaving the gun if the car and not informing the kid about it.
He told the cop "I don't know, it is not my car" that shoulodo be grounds enough for dismissal.

 

[NavyLCDR]

1. As others have said, do whatever it takes to fight it. NO PLEA BARGAINS! Plea bargains about 99% of the time = some sort of guilty conviction.

2. I don't think it will stick. The statute is ORS 166.250 and the words that glare out at me are "knowingly" and "readily accessible". I doubt if either one of those conditions was met and both of them have to be met to be found guilty.

3. Will the owner of the gun swear to a statement that the person borrowing the car was not informed of the gun and that the gun was his? Seems to me that would be enough to make "knowingly" not be met.

4. What about a state provided attorney? Seems to me this might be simple enough for a state flunkee to beat, but that's a gamble.

5. Go to opencarry.org - there is a specific Oregon section there, you might be able to find a lawyer to help.

I would try to get a signed, sworn and notarized statement from the owner of the vehicle, and, if possible present that to the prosecuting attorney and maybe get the charges dropped.

Above all else, follow the first item suggested here - do everything possible to beat it and no plea bargains! You are playing with the entire future of this kid here and cops and prosecutors love to stick it to folks over gun charges!

 

[Bobarino]

none of that should matter. being as shell casings are perfectly legal to own and have in your car, and the driver of the car did not consent to a search, the officer had no valid reason to get him out of the car and detain/arrest him. the evidence should be thrown out in court because there was not sufficient probable cause to search the car in the first place, especially since the driver didn't consent to the search.

now, if the cop asked, and the driver said yes, his best bet is to plea the charges down to something lower.

if not, the driver was subjected to violation of his 4th Amendment rights. it may cost him some lawyer's fees but it's worth it to not have it on his record. if he is proven right in court, he may even be able to recover his legal fees through a civil action against the department.

too many ifs to say for sure. we need more info on what was said and so forth.

Bobby

 

[mljdeckard]

He needs a lawyer whether or not the car owners step up. He may need a lawyer to PERSUADE the owner to step up. $5k is a lot. But you know what? It's a whole lot less than too much.

 

[NavyLCDR]

now, if the cop asked, and the driver said yes, his best bet is to plea the charges down to something lower.

My personal opinion is that would be a very bad idea. Plea bargains pleading guilty to any charge have come back and bit many, many people in the butt many, many years after such incidents.

It's a whole lot less than too much.

Unfortunately, that is the truth...

 

[okespe04]

I just noticed you are in Oregon, I sure hope this did not happen in Multnomah County. If so get a really good lawyer. Up there in Multnomah they have their own ideas about gun laws and not ones that will help in this situation.

I hate to say it but technically the kid is guilty. Ignorance is no excuse in the eyes of the law. If all you had to say was: “Its not mine I did not know it was there” every little gangster from Medford to Portland would get off on gun charges every day.

Good luck and I hope it works out well.

 

[rondog]

Lawyer up. Ignore everything else.

 

[Frank Ettin]

If you have a real life legal problem in the real world, you need a qualified lawyer. The Internet is a lousy place to come for advice:

* Communications with your lawyer are confidential. What you post on the Internet is not. It's generally a bad idea to discuss your legal matters with strangers in public.
* You have no idea what the qualifications are of the anonymous people offering you advice on the Internet. They may or may not know what they are talking about, but your interests are at stake in real life. That's just not a good situation.
* If you have problems, your lawyer will be around to help sort things out.
* It may be expensive now. But it will be cheaper than making a hash of things and trying to sort things out later.
* A plea bargain is probably a very bad idea. How many threads have we seen here that start out, "I got into some trouble years ago and cut a deal. Now I find that I can't...."

Get a good lawyer now. Spend the money and get things taken care of properly. Otherwise, you may regret things later and wind up spending a whole lot more to try to fix things.

 

[Hobbesbuff]

Bargain with a lawyer....

Start with the fee to plea the case to a deferred judgement or better yet a deferred prosecution. A lawyer should be able to advise you if such pleas are available in your jurisdiction. Its fast and should be less expensive.

What that means is the charges will be dismissed if you meet terms of probation and do not get convicted of another crime during the probation period. A good way out, if available.

 

[fatelk]

Thank you all for the ideas.

I sure hope this did not happen in Multnomah County

Fortunately not. They are in a much more rural, gun friendly part of the state.

ADDED: I shortened my posts in this thread. I don't think I had posted anything out of line or false in any way, but thought it best to delete all but the vaguest details until it's resolved, as it sounds like they should be able to resolve it favorably. Thank you.

 

[bdickens]

A friend of mine borrowed a car. He got pulled over for some minor reason, and the officer saw some empty rifle shells on the seat or something, and asked if there were any firearms in the car. Being an honest young man, he said "I don't know; it's not my car". The officer got him out of the car, handcuffed him, stuck him in the cop car, searched the car and found a gun (not his, belongs to the owner of the car).

Forgive my ignorance, but what was the probable cause for the search?

 

[Justice5]

I would for sure recommend a lawyer to fight it, don't plea. I think if the arrested person could prove he/she really didn't know the gun was there, and the car was registered to someone else, a reasonable jury would drop the charge. As others have already stated, it would be a great help if the owner of the gun confirmed that the driver had no knowledge of it being there.

 

[Webbj0219]

It sure would be nice if there was a lawyer that was a part of HighRoad. Although they might not want to make that known for fear of being swamped with questions. Ive thought about going to law school for how I could help my communtiy with it, and the pay is good. As far as this situation goes Id say NavyLT seems to know what he's talking about. Good luck on this case, man. Hope the right party wins.

 

[Deus Machina]

The fine may not be bad, but what about the fine and sealing or expunging? Is that even possible in your area?

As stated, fight it if possible. Contact local lawyers, contact the NRA for help, even use a court-appointed lawyer if need be, and do not listen to their advice to pay the fine or even plea it down, if they think they can win. Fight it.

If need be, plead a deferred prosecution or judgment. Even an arrest will look bad until it gets sealed, a conviction on something like this, in today's economy and society, can ruin him for years to come.

Another case from experience. Even a deferred judgment is a major pain. Time lost from probation visits, community service, and--through no fault of his own--possible visits to court because of a negligent probation officer (and at worst, delinquent and malicious; my first and second were all three--four PO's on one pre-trial intervention period) can quickly eat up time for school, work, and other lawyer fees.

Discounting a completely irrational judge or prosecutor (completely possible; prosecutors can be absolutely rabid) it would be a huge help if the owners of the car could show up and say "That's not his fault. We let him borrow the car, and we neglected to inform him of the S&W Model 10 in the center console."

Stating the make, model, caliber, and location would be a good point to proving that it was theirs, and not them covering for a friend. And sssuming, of course, that it won't put them into the frying pan. But some people are still responsible enough for that if they need to be.

And, yes, the first order of business should be inquiring into the reason for the stop and probable cause for the search. If either of those were "because he looked funny" or something, the whole deal could, technically, be bunk.

 

[Arkansas Paul]

You said it in your original post. Internet advice is worth what you pay for it. TALK TO AN ATTORNEY!

 

[Keb]

Do not plea thinking you will have money later to try and reverse it.

Few case are won later on appeal, especially because there may not be a basis.

 

[Gouranga]

Get a lawyer and fight it. In some states that charge could mean he would not be able to even get a CCW permit.

It could bar him from jobs, and will show up on any background check which would say he had a weapons charge. The person doing the check would know nothing of the circumstances behind it.

I would definitely fight it in court but I am a solution architect NOT an attorney.

Consult an attorney.

 

[rondog]

Quote:
Originally Posted by fatelk
A friend of mine borrowed a car. He got pulled over for some minor reason, and the officer saw some empty rifle shells on the seat or something, and asked if there were any firearms in the car. Being an honest young man, he said "I don't know; it's not my car". The officer got him out of the car, handcuffed him, stuck him in the cop car, searched the car and found a gun (not his, belongs to the owner of the car).


Forgive my ignorance, but what was the probable cause for the search?

See the part in red...

 

[kanook]

Having empty shells in your vehicle is NOT cause to search.

 

[Frank Ettin]

...Having empty shells in your vehicle is NOT cause to search...

No doubt that is one of the things the fellow's lawyer will argue in a motion to suppress. But that won't be decided here.

One of the problems with trying to "argue the case" here is that we don't have all the information. All we have is one side of a second hand summary.

The guy needs a lawyer.

 

[Crusader103]

Yes, more internet advice, but I think I can clear some things up that are often misunderstood.

Based on what was described, this was neither a consent to search, a search incident to arrest, nor a search of the vehicle based upon probable cause. In fact, it was not a "search" at all. While the charge could easily be beaten in court, what the police officer did was perfectly legal.

A police officer, without the consent of the owner, driver, or anyone else, may remove the occupants of a vehicle and conduct a "frisk" of the vehicle. This is not the same as a search and is very narrow in scope. The presence of visible shells in the vehicle, combined with many other factors known only to the officer but very presentable in court (i.e. demeanor of the driver, time of day, high crime area, officer experience, etc.) make this a reasonable frisk of the vehicle. A frisk need be based only upon reasonable suspicion, not probable cause, and that suspicion was provided in part by the shells. The fact that it led to the discovery of the firearm makes it even more of a concrete action on the part of the officer should it be challenged in such a manner in court.

I am not saying that I like the idea of what I just described. I'm just pointing out that it is very legal and well within the officers authority.

Based upon the lawful frisk of the vehicle the officer is further well within his rights and duties to charge the driver with possession of a concealed weapon. Remember, the officer does not need proof beyond a reasonable doubt in order to cite an apparent offender. The officer needs only probable cause. That probable cause was established when his reasonable suspicion and subsequent frisk of the vehicle led to the discovery of the weapon. He had probable cause at the time of arrest and there is no doubt about that. A frisk of a vehicle leading to a concealed weapon = probable cause arrest by officer.

Based on this information, why do I assert that it would be easy to beat? For the same reason that apparent offenders often beat stolen vehicle possession charges and/or drug possession charges. Because the laws of most states do indeed say "knowingly possess." The officer does not have to be concerned with this (again, you don't have to like it but it is so) because in terms of probable cause knowledge of a vehicle's contents is assumed by the driver. However, to prove "beyond a reasonable doubt" in a court of law the knowledge is not necessarily assumed, especially if they were not the vehicle owner and/or it can be shown that their use of the vehicle was only transient in nature.

Yes, it is important to fight this charge. It should not be difficult for an attorney to overcome. However, I can promise you that your friend will not get any money back in terms of court costs. That would only happen if the search was unreasonable. Not only was this not a search, but the officer was well within the standard for what occurred. Just because a charge can be beaten without much effort does not mean that the charge was unreasonable to begin with.