Felony possession of a firearm is a type of state and federal charge that is relatively common in NC. These cases are often handled in a federal court, where they resolve much more quickly than other charges – often in just a few months.
Since anyone with a felony on their record is not legally allowed to possess a firearm, this charge usually arises in situations where a police officer is examining whether a person is in actual or constructive possession of a firearm. Traffic stops are by far the most common place this happens.
Common Circumstances Where Felony Possession Of A Firearm Comes Into Play
Traffic stops, as mentioned above, are where this situation arises most often. It may have started as a routine traffic stop, perhaps because the driver was speeding or because there’s a tail light out.
Somewhere along the way during that stop, the police officer became aware of a firearm that he or she had reason to believe belonged to the individual with a felony conviction. Whether the accused individual was the one driving or a passenger may affect the perception here. Equally so, where was the firearm?
If the firearm was in the trunk or the back seat, that’s a different situation than if it were on the floor of the passenger seat where the accused was sitting.
Another scenario that is less common (but just as real) is if a police officer enters the home of someone with a felony, and notices a firearm. Context is everything in this scenario. Was the firearm in a person’s bedroom or a common area? The issue of possession is proved through circumstantial evidence.
Building Your Defense In This Type Of Case
The strongest determining factors for your defense in a felony possession of a firearm case are these things:
- Was the traffic stop where the firearm was discovered even legal in the first place? For example, if a police officer pulled over the vehicle without reasonable suspicion, such as speeding or a broken tail light, and then attempted to search the vehicle, any firearm discovered may not be legal as evidence.
- Assuming the traffic stop itself was legal, did the arresting officer have probable cause to search the vehicle (or home) to discover the firearm? (Read below about exigent circumstances, or click to read more about 4th Amendment rights as it pertains to these issues.)
- Whose firearm is it? Was it in close enough proximity to the accused person where the circumstances indicate actual or constructive possession? If there were other people present, was it likely the firearm was theirs?
Other things that relate to the first bullet point above are what’s called “exigent circumstances.” These are situations that allow a police officer to enter vehicles or property that they otherwise would not legally have access to.
The three most widely accepted types of exigent circumstances are:
- Emergency aid. If police have reason to believe someone’s life is in danger or that they require urgent assistance, the police can enter a property without a warrant for the purpose of providing that aid.
- Hot pursuit. If the police are actively pursuing a suspect and that suspect enters a private property attempting to escape, police can follow that suspect onto the property without a warrant. However, there have been some Supreme Court rulings that challenged this type of exigent circumstance for minor misdemeanors are not significant enough to justify following a suspect onto private property without a warrant.
- Destruction of evidence. If the police have reason to believe that important evidence is about to be destroyed from within private property if they don’t enter promptly – where waiting for a warrant would undoubtedly be too late – they can enter to prevent the destruction of evidence. Examples would be if police could hear a paper shredder operating when those inside the property are aware the police are outside, so it could reasonably be concluded that those inside are shredding documents with important information on them. Or if it’s obvious the inhabitants are flushing drugs down a toilet or burning evidence in a fireplace.
These types of circumstances could lead an officer to legally find a firearm that seems to be within the possession of a felon, and could then lead to charges.
Things That Determine Sentencing, If Found Guilty
For felony possession of a firearm related charges, the main thing that affects sentencing (if found guilty) is whether the defendant has an extensive prior record.
Generally there will be some prior convictions, or else the defendant wouldn’t be a felon in possession of a firearm in the first place.
For North Carolina cases (not federal cases): If the record is minimal, the sentencing may be 8-29 months depending on case circumstances. If, however, the defendant has a record or any other aggravating factors, the sentencing may be increased to 31-47 months. Federal cases have different guidelines.
Does the location and usage of the possession of the firearm affect the charges?
Generally no. Legally, possession is possession whether the defendant possessed the firearm illegally in their home or while in public.
You might think that bringing an illegal firearm to a target shooting range, for instance, would be worse because the firearm is actually being fired. However, in that scenario there is no act of violence being committed, so the only illegal part is the actual possession of the firearm.
One caveat here as far as public possession: if the defendant was also illegally concealed carrying the firearm and is legally searched by a police officer whereupon the firearm is discovered, it could add a misdemeanor or felony concealed firearm charge.
Exceptions to the statute on illegal possession of a firearm:
The NC statute for felony possession of a firearm does not apply to antique firearms. Generally, these are defined as:
- Firearms manufactured prior to 1898
- Black powder or muzzle loading firearms
Anyone can legally possess these types of antique firearms.
