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I was wondering what the laws are in NH about a felon living…

I was wondering what...

I was wondering what the laws are in NH about a felon living in a home with a firearm, my son is on probation and is living with my husband and I, my husband had a firearm in a locked room in a locked safe that my son had absolutely no access to. Could this be a problem?

Lawyer's Assistant: What was the conviction for exactly? Have all appeals been exhausted?

Breaking and entering and burglary. Yes he was sentenced and is now out and on probation.

Lawyer's Assistant: Has he talked to a NH lawyer about this yet?

3 of them, one said there would be no reason for a probation officer to search our bedroom where the firearm is located and the others said it may be a potential problem. We also tried reaching out to his probation officer to see if he could come do a house tour but we have not gotten a response from him yet. At this moment the firearm is not in the house until we figure it out.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

No I think that's it.

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Answered in 9 minutes by:
3/17/2018
RobertJDFL
RobertJDFL, Lawyer
Category: Criminal Law
Satisfied Customers: 15,307
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Good afternoon,

The attorney who told you that there could be problems was likely concerned with the issue of "constructive possession." Constructive possession means he doesn't have the weapons on him, but they are in the house. That can be enough for a convicted felon to be charged with being "in possession" of the weapon. However, since the weapon is kept in a locked room, and in a locked safe, to which your son has absolutely no access to, I do not see it as a problem.

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Customer reply replied 4 months ago
Would the probation officer have a right to even search my bedroom if it is locked?

A probation officer does have the right to search the home where a person on probation is living, yes. Even still though, the gun is locked in a gun safe where only you/your spouse have a key.

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Customer reply replied 4 months ago
Can the probation officer ask us to open the safe during a search? His probation officer said if there was a firearm in the house he would automatically be in violation, so I'm trying to find out if it was a scare tactic or if he would actually be in violation. Sorry that should sum up my questions.

The first thing I would suggest your son do is get a copy of his probation conditions because that will give him an idea of what is and isn't allowed.

Typically, because a sentence of probation is usually an alternative to a jail sentence, courts have found that probationers have reduced expectations of privacy—that is, they don't have the same Fourth Amendment rights as others. That’s why courts can require probationers to submit to warrantless searches not supported by probable cause.

Although officers usually need probable cause before they can search a person or home (they typically need a warrant for the latter), a search condition eliminates this requirement. But search conditions in a person's probation can vary by individual -they aren't all the same. Some allow for a search "any time, any place" and others require that they have probable cause first. I understand you want your privacy, but if probation officers didn't have this right, then a convicted felon could simply move in with someone, and hide any illegal activities in that other person's room.

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As far as the gun -again, he needs to look at his probation terms. Having you remove the gun from your home (you wouldn't even be able to keep it locked in your car!) is really a violation of your right to own a weapon. But it's worth getting some clarification from the probation officer that if the gun is in a locked safe that your son absolutely cannot get access to if they would still violate him (even if he's not convicted in court, the thought of arrest, a hearing, attorney fees, etc is not worth it).

As a precaution, you may even want to temporarily remove the gun from your home and keep it with someone else until you get clarification on this issue.

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Customer reply replied 4 months ago
The gun actually isn't in the home right now until we figured it out because I was also told that my husband could face charges because he knew a felon was in the house and still had a firearm.
Okay. The ideal situation is to avoid the gun in the home altogether , but then as I said, that raises constitutional issues over the loss of your right and his right to legally own a weapon. That’s why attorneys will advise that while it could be charged as constructive possession, if the gun is kept in a locked safe that he absolutely has no access to, it should not be an issue. The unpredictable, unknown factor here is the probation officer, so for now you’re doing the right thing. Once he’s off probation and not subject to random searches, it will be a lot easier.
RobertJDFL
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Customer reply replied 4 months ago
Ok, thank you.
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