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Thread: Imteresting call from my daughter

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    Regular Member celticredneck's Avatar
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    My daughter called me with a question. She lives in Roanoke with her, in the sister's house. Her sister's boyfriend has been serving time for a non-violent offense, but is to be released in January. My daughter said that her sister just informed her that she would have to get rid of her gun when the boyfriend comes back because he could not have a gun in the same house with him. I know from other threads that this is true in places such as New York, but is it also in Virginia. Can my daughter legally be required to give up her pistol or forced to move out, or is this just something her sister is saying. I am reasonably sure that if the older sister(the one who has a gun) were to draw up and sign a rental agreement with her younger sister, that it would be no different than having a gun in the same apartment building with a convicted felon. I know that advice given on this or any other forum has no legal standing and that she should consult a lawyer about this question, but she is still working on her post graduate degree and is very short of money. I am hoping that someone might have run into this issue before and might have some idea what is correct. I'm not 100%sure whether the offense the boyfriend is serving time for is a felony, but I believe he's been incarcerated for over 1 year now. Since the max sentance for a Class 1 misdmeanor is 1 year, the length of time served would indicate it was a felony.
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    Yes, they do that in every state and it is called probation.

    The BF won't be released without a place to go. The owner of that place (the GF) has to agree to certain conditions, i.e. no guns, drugs, or alcohol and theplace and anyone in it can be searched at will by the probation officer.

    Your daughter doesn't own the place, if her sistersays the place can be searched, it can be searched. If anything on the above list is found in the house, the BF goes back to jail.

    Myyounger sister (but still an adult)got into a bitof trouble and was releasedon probation into the custody of my parents. Those were the terms of their agreement with the courts.

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    My suggestion, if there is any doubt, tell her to keep the gun and find a new boyfriend. Kind of like killing 2 birds with one stone.

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    NavyVA wrote:
    My suggestion, if there is any doubt, tell her to keep the gun and find a new boyfriend. Kind of like killing 2 birds with one stone.
    +1

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    Regular Member fairfax1's Avatar
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    Is there some kind of compromise available where your daughter can keep the gun locked in a safe that only she has access to when she is not carrying it?

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    Regular Member TFred's Avatar
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    NavyVA wrote:
    My suggestion, if there is any doubt, tell her to keep the gun and find a new boyfriend. Kind of like killing 2 birds with one stone.
    There is a key word missing from the original post, but it sounds like it's two sisters, one with the gun, and one with the boyfriend.

    So the one with the gun doesn't get to decide to dump the boyfriend, the other sister has to do that.

    Sounds like the one with the gun will have to choose between living with her sister and boyfriend, unarmed, or living elsewhere.

    TFred


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    Regular Member ProShooter's Avatar
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    PT111 wrote:
    NavyVA wrote:
    My suggestion, if there is any doubt, tell her to keep the gun and find a new boyfriend. Kind of like killing 2 birds with one stone.
    +1
    +2
    James Reynolds

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    Tough situation.

    As other posters said, I am not a lawyer, this isn't legal advice and your daughter probably should consult a lawyer.

    Having said that:

    Does you daughter carry the gun regularly? I'm guessing she can't or doesn't carry it to school. Does she keep it in the house for protection while in the house? Is the house in a good neighborhood or not? What was the "non-violent" offense that was probably a felony? Who is the "her" as in "...lives in Roanoke with her, in..."? I think a word got dropped. Not sure who your daughter is living with.

    Your daughter has some very limited choices:

    1. Have your daughter talk sister into finding another boyfriend. (My personal favorite)

    2. Find another place to live. Might be financially difficult, maybe impossible. Moving might be a good idea, however. Who wants to live in proximity to someone who ran afoul enough of the law to actually get sent to prison? Even in VA you've got to do some pretty serious stuff to get sent to prison for any length of time. I know many people here in VA who avoid prison. The characterization "non-violent" could be misleading as well. Although trumped up, stupid charges and prosecutorial misconduct aren't unheard of in VA, "non violent" offenses like drugs, burglary, fraud, and many others, can be, in my opinion, pretty serious. I wouldn't want my daughter close to somebody like that. That is, unless he's in jail for something really ridiculous (guy here in Fairfax spent several months in jail over a dispute with the county regarding the placement of trees he planted on his golf course).

    3. Find another place to keep her gun until bad boy is free of probation (how long is that?) Keep it in a bank safe deposit box. Or rent a storage unit that has 24 hour access (might be costly). Or find a shooting range that rents lockers and keep it there (I did that for a year when now ex-wife had mental health issues). Or find any other place that rents lockers you can lock 24 hours a day. At least it would be nearby and available during working hours, assuming your daughter wants to carry it during the day. If practical, find a trusted neighbor nearby who will allow a small safe on his property so daughter can retrieve the gun during the day. I'd do that for several of my neighbors if they asked. Or have her lock it up in a lock box (GunVault or something similar) in her car and park her car somewhere other than sister's property, like on a trusted neighbor's property. All of these get the gun out of the house and make things legal, but render the gun inaccessible when she's in the house. So if home protection is the reason she has the gun, there is no satisfactory means of accomplishing that other than to move.



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    TFred wrote:
    Sounds like the one with the gun will have to choose between living with her sister and boyfriend, unarmed, or living elsewhere.
    Let's see...live with a felon, unarmed OR live with law-abiding citizen(s) armed.

    Not a hard decision.

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    It is called Terms of Probation. Looks like somebody has to make a decision.

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    Accomplished Advocate peter nap's Avatar
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    You might want to talk to User and get his opinion but in years past, one could enter into a lease agreement and lease your room. This created a second household and is not subject to the terms of his probation and required a separate search warrant.

    The other answer would be to leave the gun at a friends house or neighbor.

    Depending on what the felony was, I may or may not be concerned. It is awfully easy to become a felon these days.

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    peter nap wrote:
    Depending on what the felony was, I may or may not be concerned. It is awfully easy to become a felon these days.
    Or at least arrested on a Felony charge and brought to court, which still doesn't look pretty on a background check. A relative of mine had this happen here in VA when a rent to own place hired a collection agency who found a sympathetic magistrate to execute an arrest warrant and hauled my relative off to county for processing....you'd be surprised at how little it takes these days.

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    Regular Member celticredneck's Avatar
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    peter nap wrote:
    You might want to talk to User and get his opinion but in years past, one could enter into a lease agreement and lease your room. This created a second household and is not subject to the terms of his probation and required a separate search warrant.

    The other answer would be to leave the gun at a friends house or neighbor.

    Depending on what the felony was, I may or may not be concerned. It is awfully easy to become a felon these days.
    Peter, first of all, I'm not a good writer, so the situation isn't really clear. My youngest daughter, the one who has the boyfriend is the owner of the house(as in paying on a 30 year mortgage). My oldest daughter lives with her and shares expenses. Neither of them can do without the other being there to share expenses. Back last year my oldest daughter purchased a Bersa Thunder because of several things which have happened in the neighborhood, including a felony takedown in their back yard. As for the charges against the boyfriend, it stemmed from him giving an underaged girl a ride to her friends house, out of town. The boyfriend claims he did not know she was underage, but that didn't make any difference to the court. From what I saw of him before all of this happened, he seemed like a nice kid, and may have been telling the truth. Anyhow, my daughter(the one with the Bersa) contacted the state police with the question and they were somewhat less than helpful. I've advised her to try legal aid to see if someone will answer her question without charge. Failing that, I advied her to try and locate a parole officer in the area and ask them. Other suggestions I've gotten included entering into a rental agreement with her sister and installing a gun safe as well as a keyed exterior style lock on the door to her room. If worse comes to worse, I told her to bring me her gun and I'd keep it until she finishes school and gets a better paying job, so that she can move somewhere else. Of course, that brings us back to the original problem of being in a less than good area of town, without any means to defend themselves. Oh, I also advised her(the oldest) to check out handgun law US, but this situation is probably not covered.
    You can't fix stupid, but you can vote it out of office

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    Accomplished Advocate peter nap's Avatar
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    celticredneck wrote:
    peter nap wrote:
    You might want to talk to User and get his opinion but in years past, one could enter into a lease agreement and lease your room. This created a second household and is not subject to the terms of his probation and required a separate search warrant.

    The other answer would be to leave the gun at a friends house or neighbor.

    Depending on what the felony was, I may or may not be concerned. It is awfully easy to become a felon these days.
    Peter, first of all, I'm not a good writer, so the situation isn't really clear. My youngest daughter, the one who has the boyfriend is the owner of the house(as in paying on a 30 year mortgage). My oldest daughter lives with her and shares expenses. Neither of them can do without the other being there to share expenses. Back last year my oldest daughter purchased a Bersa Thunder because of several things which have happened in the neighborhood, including a felony takedown in their back yard. As for the charges against the boyfriend, it stemmed from him giving an underaged girl a ride to her friends house, out of town. The boyfriend claims he did not know she was underage, but that didn't make any difference to the court. From what I saw of him before all of this happened, he seemed like a nice kid, and may have been telling the truth. Anyhow, my daughter(the one with the Bersa) contacted the state police with the question and they were somewhat less than helpful. I've advised her to try legal aid to see if someone will answer her question without charge. Failing that, I advied her to try and locate a parole officer in the area and ask them. Other suggestions I've gotten included entering into a rental agreement with her sister and installing a gun safe as well as a keyed exterior style lock on the door to her room. If worse comes to worse, I told her to bring me her gun and I'd keep it until she finishes school and gets a better paying job, so that she can move somewhere else. Of course, that brings us back to the original problem of being in a less than good area of town, without any means to defend themselves. Oh, I also advised her(the oldest) to check out handgun law US, but this situation is probably not covered.
    You write better than you give yourself credit. That is the way I understood the situation.

    The lease (rental) agreement may well be the best option if it will still fly. Laws, opinions and regulations change and this is an old option several people I knew used. It has been a while though.

    That's why I suggested you contact User (Or any good attorney) He seems pretty good at giving no nonsense advise and more importantly, I trust him. Don't know what he would charge, but that can be worked out beforehand.

    In a situation like this where one daughter stands to be hurt by the wrong move and the alternative is to disarm the other, I'd be getting a qualified opinion. The police are definitely the wrong people to talk to.

    I'm not drawing any conclusions about the boyfriend. Like I said, It's very easy to be convicted of a felony these days.

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    Campaign Veteran skidmark's Avatar
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    First, from www.virginia1774.com

    Constructive/Actual Possession of [Concealed] Firearm


    "A conviction for the unlawful possession of a firearm can be supported exclusively by evidence of constructive possession; evidence of actual possession is not necessary. Rawls v. Commonwealth, 272 Va. 334, 349, 634 S.E.2d 697, 705 (2006); Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 872 (1998). To establish constructive possession of the firearm by a defendant, "the Commonwealth must present evidence of acts, statements, or conduct by the defendant or other facts and circumstances proving that the defendant was aware of the presence and character of the firearm and that the firearm was subject to his dominion and control." Rawls, 272 Va. at 349, 634 S.E.2d at 705; accord Walton, 255 Va. at 426, 497 S.E.2d at 872; Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986); Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984); Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 812, 814 (1975). While the Commonwealth does not meet its burden of proof simply by showing the defendant's proximity to the firearm, it is a circumstance probative of possession and may be considered as a factor in determining whether the defendant possessed the firearm. Rawls, 272 Va. at 350, 634 S.E.2d at 705; Walton, 255 Va. at 426, 497 S.E.2d at 872; Lane v. Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982). There is evidence to support a finding that Bolden was aware of the presence and character of the firearm and it was within his dominion and control. Bolden exited the vehicle along with the only other passenger, and Bolden attempted to contact the officer before the officer could get to the vehicle. The bag containing the gun was open and obvious to someone looking in the vehicle, and it was located in immediate proximity to where Bolden had been sitting. Additionally, Bolden possessed illegal drugs with the intent to distribute them, and an expert witness testified at trial as to the link between the distribution of drugs and the possession of a firearm."

    then, if her room is kept locked and she has control over access to her room,

    Rooming House Common Area Protected Under the 4th Amendment



    "Logan's residence was not a vacation home, but the regular dwelling for fifteen people. The rooming house "was not a hotel, restaurant, or public place where the public was invited or had the right to come and go at will." Brown v. United States, 83 F.2d 383, 385 (3d Cir. 1936). The rooming house was Logan's home "and so far as the unlawful entry and search affected him, it violated his constitutional rights." Id. at 386. We hold that the common areas of the rooming house were part of Logan's "home" within the meaning of the Fourth Amendment. "

    also,



    Must Have Consent From Both People Living in Same House
    Georgia v. Randolph, 547 U.S. __ (2006).
    "The Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained. Illinois v. Rodriguez, 497 U. S. 177 (1990) ; United States v. Matlock, 415 U. S. 164 (1974) . The question here is whether such an evidentiary seizure is likewise lawful with the permission of one occupant when the other, who later seeks to suppress the evidence, is present at the scene and expressly refuses to consent. We hold that, in the circumstances here at issue, a physically present co-occupant’s stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him."

    and

    The Meaning of Custody

    Davis v. Commonwealth, 45 Va. App. 12, 608 S.E.2d 482 (2005)

    "Recently, in White v. Commonwealth, 267 Va. 96, 591 S.E.2d 662 (2004), the Supreme Court addressed the issue of whether a defendant was in "custody" within the meaning of this statute. In finding the evidence insufficient to sustain White's conviction, the court emphasized the necessity of immediate control: "[I]t is clear that for purposes of prohibiting an escape under Code 18.2-479, the General Assembly must have intended that the term 'custody' would include a degree of physical control or restraint under circumstances other than those also necessary to constitute an actual custodial arrest." Id. at 104, 591 S.E.2d at 667 (emphasis added) (footnote added). While noting that a "formal arrest" is not a prerequisite to being in custody, the court emphasized that an individual's "freedom of movement" must be curtailed. Id. at 104, 105, 591 S.E.2d at 667, 668.


    Appellant in the instant case had been released from the trial court pending sentence and allowed to remain free on bond. At that point he was no longer in the physical custody or even presence of the court. Thus, the "sufficient restraint to have physical control over him" did not presently exist. See id. at 106, 591 S.E.2d at 668. At best, he had a future appearance requirement. Additionally, he failed to appear at the jail, and thus he never submitted to the court's directive or authority. "



    In keeping with the doctrine of "What a reasonable person would do in those circumstances" it is proper to suggest that the daughter discuss the presence and method of keeping the gun with the returning boyfriend's Probation/Parole Officer and to review the above cases with that servant of the People.



    Additionally, the issue of the gun and the boyfriend (and the boyfriend's past history) probably needs to be discussed with the sister as it may impact who will be paying rent. IMHO if the boyfriend is not going to be paying rent while the daughter does pay rent, then the daughter's desires, needs and rights outweigh those of the boyfriend. On the other hand, if the Probation/Parole Officer can not/will not approve the living arrangements while the daughter and her gun remain present, then the sister needs to figureout if money is more important than the boyfriend.



    In any case, the nice thing is that the boyfriend has a built-in babysitter that can be contacted shouldthere be some issuethat cannot be talked out reasonably among adults. <HINT TO DAUGHTER - KEEP IN TOUCH WITH PROBATION/PAROLE OFFICER>



    stay safe.



    skidmark
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