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shurmust
shurmust, Criminal Justice Lawyer
Category: Criminal Law
Satisfied Customers: 150
Experience:  I have completed over thirty jury trials in the last three years and teach part-time at a local state college.
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Can the DA destroy my guns which were in my safe locked up

Resolved Question:

Can the DA destroy my guns which were in my safe locked up when the police came to my house to do a search for my husband who was on parol? It was not for a violent crime. They have stated today that they gave my husband a deal but they would destroy my guns
Submitted: 1 year ago.
Category: Criminal Law
Expert:  shurmust replied 1 year ago.

shurmust :

Greetings! I am happy to help you answer this question. Just to confirm, what was your husband on parole for? Also, is this in Federal or State Court?

shurmust :

One of the conditions of parole, regardless of whether it is for a non-violent crime, would be not to possess any dangerous weapons, including firearms or knifes.

shurmust :

If he went to prison, and likely convicted, it is unlawful for him to be in "possession" of a firearm. If the worst thing that came out of this is the police destroying the firearm, and not a new charge (Felon in possession of a Firearm), consider yourself lucky.

shurmust :

You can certainly file the appropriate motion, but you may be asking for trouble.

shurmust :

Does this make sense?

Customer:

he was on probation for counterfit check and he was in state court in Los Angeles County. Some of these guns were given to me by his father who is no longer alive. This was all that he had left from his father.

Customer:

a majority of them are collector's guns.

shurmust :

Okay. Well when you say "collectors" guns, there may be an exception under the "antique" firearm statute. However, keep in mind, when you are placed on probation, and there is a special condition of not "possessing" firearms they generally do not have an exception unless it states that on his disposition from probation.

shurmust :

Nevertheless, if part of the "plea" was to destroy/surrender the firearms, again, consider yourself lucky, since he could have been sent to prison for a potential violation of probation/parole.

Customer:

But these are my guns and they were locked up in my gun safe!

shurmust :

In the grand scheme of things, if he agreed through a plea to surrender the weapons, then he risks the plea being vacated.

shurmust :

You have an excellent argument.

shurmust :

However, the law does not discuss "ownership." It is "possession."

shurmust :

It is not a defense to say it is owned by someone else, for example, you.

shurmust :

As a condition of probation, he is to not be in actual or constructive possession of firearms. Whether it is in a safe or not.

shurmust :

Certainly you could argue the safe was never opened and he did not know the password, but how did the P.O. get to the safe if it is yours.

shurmust :

Ultimately, if he agreed to this as a special condition of the plea, you shouldn't risk the plea being vacated.

Customer:

When they came to the house they asked me to open my safe! Its a bunch of corrupt cops and I've had enough.

shurmust :

Again, I think it would be wise, to cut your losses short, unless you are arguing, that the guns are yours and therefore were unlawfully seized. However, you, and not him would have to bring a separate motion with a separate lawyer.

shurmust :

I don't doubt it.

shurmust :

On the flipside, you have to understand, one's rights on probation, are not nearly as those to one not on probation.

shurmust :

If the guns belong to you, and you really really want them back, then you should file a motion with the court asking the government to return your collectible guns. If they give them back, put them in a different place outside the home so he has no access or "possession" to them.

shurmust, Criminal Justice Lawyer
Category: Criminal Law
Satisfied Customers: 150
Experience: I have completed over thirty jury trials in the last three years and teach part-time at a local state college.
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shurmust
shurmust
Criminal Lawyer
150 Satisfied Customers
I have completed over thirty jury trials in the last three years and teach part-time at a local state college.