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First, from
www.virginia1774.com
[align=center]Constructive/Actual Possession of [Concealed] Firearm [/align]
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Bolden v. Commonwealth, __ Va. __,__ S.E.2d __ (2008).[/align]
[align=left]"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." [/align]
[align=left]then, if her room is kept locked and she has control over access to her room,[/align]
[align=center]Rooming House Common Area Protected Under the 4th Amendment[/align]
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Logan v. Commonwealth, 47. Va. App. 168, 622 S.E.2d 771 (2005 En Banc).[/align]
[align=left]"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. " [/align]
[align=left]also,[/align]
[align=left]Must Have Consent From Both People Living in Same House
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Georgia v. Randolph, 547 U.S. __ (2006).
[align=left]"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."[/align]
[align=left]and[/align]
[align=left]The Meaning of Custody [/align]
Davis v. Commonwealth, 45 Va. App. 12, 608 S.E.2d 482 (2005)[/align]
"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: "
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. [/align]
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.
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