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Thread: Open Carry of Firearm in Vehicle Consol

  1. #1
    Regular Member Virginiaplanter's Avatar
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    From Today's Va. Supreme Court Opinions:

    Nov. 5, 2009
    Open Carry of Firearm in Console of Vehicle Equals Constructive Possession for Convicted Felon
    "Deputy Lampkin testified that the weapon was "in the console, between the console right beside [Smallwood's] right leg." He further described the vehicle as "small" and the gun's location as "an open console between the seats where you could just lay something, like a little section. It was small in between two bucket seats." The firearm was not concealed...
    Barnett testified that she normally kept the firearm in plain view on the console because she had applied for a concealed weapon permit but had not received one. She testified that she has "always carried [the firearm] after [she] got assaulted."
    Mr. Smallwood knew of the weapon's presence and not that he exercised dominion and control over the firearm." However, Smallwood misapprehends established principles of constructive possession...Smallwood argues that he "could not have exercised dominion and control over the gun when the gun was under the dominion and control of Ms. Barnett at all times." Further, Smallwood argues that "Barnett's testimony excludes the possibility of joint possession" because "Smallwood never touched or manipulated the weapon in any way."
    As we noted in Ritter, the issue of constructive possession "is largely a factual one and must be established by evidence of the acts, declarations and conduct of the accused." 210 Va. at 743, 173 S.E.2d at 807. According the Commonwealth the benefit of all inferences fairly deducible from the evidence, Bolden, 275 Va. at 148, 654 S.E.2d at 586, the record clearly supports the finding that the firearm in Barnett's car was "subject to" Smallwood's dominion and control.
    Both deputies described the vehicle as small. Barnett acknowledged that the firearm was "in plain view" during the entire six or seven hours in which she and Smallwood occupied the vehicle. The firearm rested on an open console "right beside [Smallwood's] right leg." In an instant, Smallwood could have had actual, exclusive possession of the firearm and Smallwood's access to the firearm was not restricted in any way. While Barnett's ownership of the firearm is relevant to the inquiry, it is not dispositive. "Possession and not ownership is the vital issue. Possession may be joint or several. Two or more persons may be in possession where each has the power of control and intends to exercise control jointly." Burnette v. Commonwealth, 194 Va. 785, 792, 75 S.E.2d 482, 487 (1953).
    In a joint constructive possession case, the focus is on the "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." Bolden, 275 Va. at 148, 654 S.E.2d 586 (emphasis added). As in Bolden, here the contraband was "open and obvious to someone looking in the vehicle, and it was located in immediate proximity to where [the defendant] had been sitting." Id. at 149, 654 S.E.2d at 586."


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    This doctrine of constructive possession seems a bit disturbing as it can be applied to concealed carry - imagaine a permit holder who carries his handgun concealed in his closed glove box or closed console - and his non-permit holding spouse, friend, or child is riding in the car with knowledge of the gun.

    Seems to me this case implies that these non-permit holders are in violation of 18.2-308 as constructive conceaed possessors!:shock:

    One way to distinguish the two fact patters is in the recent case, the gun was "contraband" as to the Defendant whereas at least for adult passengers in the concealed carry case, the gun would not be contraband.

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    Mike wrote:
    This doctrine of constructive possession seems a bit disturbing as it can be applied to concealed carry - imagaine a permit holder who carries his handgun concealed in his closed glove box or closed console - and his non-permit holding spouse, friend, or child is riding in the car with knowledge of the gun.
    I always figured as much for the glove box -- being as it is in front of the passenger seat -- which is why when I was in college (and banned from having a gun on campus) I kept my gun in the center console of my car. I always assumed if someone in front (me) could legally possess the gun, it was OK.

    Given that often times my passenger was my roommate who was a non-immigrant alien (student visa), I suppose according to the Virginia Supreme Court he was in "constructive possession" of "contraband" every time I gave him a ride -- even though he had absolutely no control over what I chose to carry, or where I carried it, in my vehicle. :X

    This is a perfect example of why the common law system sucks -- who knows what's really legal or illegal? Even if you think you're obeying the law, you can be screwed for life on the whim of a judge who wants to "make new law" that day.



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    Regular Member TFred's Avatar
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    Virginian683 wrote:
    Mike wrote:
    This doctrine of constructive possession seems a bit disturbing as it can be applied to concealed carry - imagaine a permit holder who carries his handgun concealed in his closed glove box or closed console - and his non-permit holding spouse, friend, or child is riding in the car with knowledge of the gun.
    I always figured as much for the glove box -- being as it is in front of the passenger seat -- which is why when I was in college (and banned from having a gun on campus) I kept my gun in the center console of my car. I always assumed if someone in front (me) could legally possess the gun, it was OK.

    Given that often times my passenger was my roommate who was a non-immigrant alien (student visa), I suppose according to the Virginia Supreme Court he was in "constructive possession" of "contraband" every time I gave him a ride -- even though he had absolutely no control over what I chose to carry, or where I carried it, in my vehicle. :X

    This is a perfect example of why the common law system sucks -- who knows what's really legal or illegal? Even if you think you're obeying the law, you can be screwed for life on the whim of a judge who wants to "make new law" that day.
    Reading through this particular opinion, it seemed that quite a bit of weight was given to the fact that the gun was equally in reach of the felon as of the permitted possessor, and for several hours. If you had your gun concealed, and you exercised the proper "concealed is concealed" strategy so often discussed... your alien friend should neither know, nor be liable for the fact that the gun was there.

    IANAL, but that's the feeling I get from the opinion. Of course in a different case they might emphasize a whole different thing, as you note. And this takes into account no other cases, which could change the outcome completely.

    TFred


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    Actually he knew I carried the gun there. If they have the intention to apply this only to felons, then maybe this type of ruling wouldn't apply to him since I know I have heard of foreign tourists shooting at US gun ranges, which would equal possession. I guess then it's just purchasing that they are prohibited from.

    I still have to disagree with this opinion. If a felon is standing next to a person wearing a gun in a holster, is the felon guilty of "constructive possession" because he is aware of the gun and *could* have it in his control within seconds (if he tried a gun grab)? Can we reasonably expect these people to live their lives avoiding all contact with all citizens who are exercising a basic civic right of which the ex-con has been deprived?

    Every year Congress and state legislatures create a slew of new felonies just so legislators can claim at the election to be "tough on criminals." How would it sound if they told the truth...that they created more criminals by criminalizing what was once perfectly legal behavior?!

    IMHO we have already gone too far with the deprivation of civil rights of people who are supposed to have "paid their debt" to society. Apparently once you become a felon, it's a debt you can never, never truly repay.

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    Regular Member TFred's Avatar
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    Virginian683 wrote:
    IMHO we have already gone too far with the deprivation of civil rights of people who are supposed to have "paid their debt" to society. Apparently once you become a felon, it's a debt you can never, never truly repay.
    I've been thinking about this quite a bit lately as well. It seems to me that denying felons the right to self-defense with a firearm is essentially punishing them for what they might do in the future, based on what they've done in the past. It doesn't work for the stock market, and it didn't work in the movies (Minority Report), so why should it work in real life?

    TFred


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    I remove the existing center seat/console and replace it with a new floor mount and steel security box (have purcased them, but have not had a chance to install them). The existingseat/consoleuses special nuts to secure to the existing floor mounting studs.The nuts require a special socket in orderremove them and I had to special order it form Snap-on Tools in order to remove and replace the nuts. It is rock solid and cannot be removed without a saw, torch or the special socket.

    I have a CHP.I place a handgun in the new security console to be permanently kept there. If I ever loan my truck to anyone or drop it off for service I wolud only give the person who takes possesion of the truck aset oftruck keys that would include the gas cap lock, but no keys for any pad locks or even the security console.What happens if they got stopped and the cops wanted to search the vehicle. They would not have any key to open the console. If the console was broken intoby the cops (maybe an illegal search as in no warrant) would the driver be in "constructive possesion" of my handgun?
    Revelation 1911 - And I saw heaven opened, and behold a white horse; and he that sat upon him was called Faithful and True, and in righteousness he doth judge and make war.

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    Moderator / Administrator Grapeshot's Avatar
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    mobeewan wrote:
    I remove the existing center seat/console and replace it with a new floor mount and steel security box (have purcased them, but have not had a chance to install them). The existingseat/consoleuses special nuts to secure to the existing floor mounting studs.The nuts require a special socket in orderremove them and I had to special order it form Snap-on Tools in order to remove and replace the nuts. It is rock solid and cannot be removed without a saw, torch or the special socket.

    I have a CHP.I place a handgun in the new security console to be permanently kept there. If I ever loan my truck to anyone or drop it off for service I wolud only give the person who takes possesion of the truck aset oftruck keys that would include the gas cap lock, but no keys for any pad locks or even the security console.What happens if they got stopped and the cops wanted to search the vehicle. They would not have any key to open the console. If the console was broken intoby the cops (maybe an illegal search as in no warrant) would the driver be in "constructive possesion" of my handgun?
    Opinion only - I do not think so; anymore than if he were refinishing the floors in your home and you had a locked gun safe in your den.

    That said, I never leave a gun in my vehicle when it goes in for servicing - I do leave looking like a tribal warrior though.

    Yata hey
    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Regular Member MSC 45ACP's Avatar
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    Tribal Warrior whose name is"ArmedToTeethFromPowcomonet"
    "If I know that I am headed for a fight, I want something larger with more power, preferably crew-served.
    However, like most of us, as I go through my daily life, I carry something a bit more compact, with a lot less power."
    (unknown 'gun~writer')

    Remington 1911 R1 (Back to Basics)
    SERPA retention or concealed...

    "Those who hammer their guns into plows will plow for those who do not." ~Thomas Jefferson
    (Borrowed from "The Perfect Day" by LTC Dave Grossman)

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    Moderator / Administrator Grapeshot's Avatar
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    MSC 45ACP wrote:
    Tribal Warrior whose name is"ArmedToTeethFromPowcomonet"
    Wicocomoco ne Algonquian.

    Yata hey
    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Regular Member MSC 45ACP's Avatar
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    Sorry... I figured you for a James River/Western Suburb of Richmond kinda guy...
    "If I know that I am headed for a fight, I want something larger with more power, preferably crew-served.
    However, like most of us, as I go through my daily life, I carry something a bit more compact, with a lot less power."
    (unknown 'gun~writer')

    Remington 1911 R1 (Back to Basics)
    SERPA retention or concealed...

    "Those who hammer their guns into plows will plow for those who do not." ~Thomas Jefferson
    (Borrowed from "The Perfect Day" by LTC Dave Grossman)

  12. #12
    Moderator / Administrator Grapeshot's Avatar
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    MSC 45ACP wrote:
    Sorry... I figured you for a James River/Western Suburb of Richmond kinda guy...
    Southside, by invitation only - western cousins have soft hands and weak hearts.

    Yata hey
    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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