My Girlfriend’s AK-47

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The court of appeals just reversed a defendant’s conviction for possession of a firearm by a convicted felon. It’s a case with interesting facts that raises questions about whether the owner or the driver of a vehicle is responsible for its contents.

State v. Bailey began when two Roxboro officers heard several gunshots at an apartment complex. Responding to the scene, one of the officers saw a car leaving the area. The officer stopped the car. The defendant was in the passenger seat, and his girlfriend was driving. The officer asked whether there were any weapons in the car, and the defendant said that there was a gun in the backseat. The gun turned out to be an AK-47 semiautomatic rifle. It was warm, as if it had recently been fired.

Additional relevant facts include the following:

  • “[T]he rifle was registered to” the defendant’s girlfriend. As an aside, although this statement may reflect the trial testimony, North Carolina does not have a registry for long guns, so I am not sure exactly what it means.
  • The car was titled in the defendant’s name. However, the defendant testified at trial that although he had helped buy the car, his girlfriend used and controlled it.
  • A shell casing that was compatible with the rifle was found in the apartment complex.
  • The defendant testified, and denied possessing or firing the rifle. He claimed that he and his girlfriend left the complex upon hearing gunshots.
  • A gunshot residue test performed on the defendant was inconclusive.
  • The defendant’s fingerprints were not found on the rifle.

The defendant was charged with, and convicted of, possession of a firearm by a convicted felon, but the court of appeals ruled that the State’s evidence was insufficient to support the conviction.

It reasoned that the defendant was not in actual possession of the gun, so the State needed to prove constructive possession. Further, because the defendant was not in sole control of the car, the State needed to offer “other incriminating circumstances” beyond the defendant’s presence there. And the court found no such circumstances, noting the lack of physical evidence tying the defendant to the gun and concluding that the defendant’s knowledge of the gun’s presence was not enough to render him in possession of it.

The court’s conclusion is in line with State v. Alston, 131 N.C. App. 514 (1998), a similar case in which officers found a gun in a car with a female driver and a male passenger. The gun in that case was registered to the driver, the car was not registered to either occupant, and the court of appeals found that there was insufficient evidence that the passenger was more than merely present alongside the gun.

On the other hand, recall State v. Mitchell, __ N.C. App. __, 735 S.E.2d 438 (2012), a case I blogged about here. In that case, the court of appeals affirmed a male driver’s conviction for possessing a gun found in the female passenger’s purse inside the glove compartment of the vehicle.

All of these are close cases, and reasonable minds might differ about which set of facts is the strongest for the State. In each case, the court of appeals emphasized that the driver of a vehicle controls the vehicle and is responsible for its contents. In Bailey, though, the registered owner of the vehicle was inside the car, and one could argue that in that setting, ultimate authority rests with the owner. In drug cases, the court has indicated that ownership of a vehicle provides a measure of control. See, e.g., State v. Hudson, 206 N.C. App. 482 (2010) (stating that “[i]n car cases . . . ownership [is] sufficient” to create an inference of constructive possession and observing that “courts in this State have held consistently” that both drivers and owners of vehicles have the power to control the vehicles’ contents). And in the context of standing to object to an allegedly unlawful search of a vehicle, ownership of a vehicle is generally sufficient to confer standing. Cf. Rakas v. Illinois, 439 U.S. 128 (1978) (ruling that defendants lacked standing because they were “passengers occupying a car which they neither owned nor leased”). In fact, ownership may be more significant than who is driving in the Fourth Amendment context. Cf. State v. Hodges, 195 N.C. App. 390 (2009) (holding that the driver of a car lacked standing to object to a search because he “claimed no ownership interest in the vehicle” and deferred to the passenger regarding authority to search the vehicle).

The court’s opinion in Bailey was unanimous, so we’ll have to wait and see whether the State chooses to seek further review, and if so, whether the supreme court is interested in the issue.

4 comments on “My Girlfriend’s AK-47

  1. I take it that the police assumed that the man was the perp and failed to properly investigate the female.

    Also, this firearm being “registered” to Ms. Torrain is rather misleading. I suppose that means she purchased the rifle and it was discovered that the ATF Form 4473 being held in the files of the dealer, or some other documentation being held by a private seller, indicated that she was the actual owner of the rifle.

    You are correct, Jeff, about there not being a registry of long guns in NC. There is no registry of handguns, either, except for Durham County. Also, this rifle was not an “assault rifle” since it didn’t possess the ability to fire selectively (semiautomatic/full automatic).

    • Excellent read, Jeff. Keep up the good work.

  2. Thanks for doing the research and sharing this important information.

  3. Commonly cops arrest all passengers and driver when some alleged contraband is discovered, unless someone forfeits their 5th Amendment rights and to save what may be perfectly innocent friends from a bust. Imagine being the owner, driving or not, and being told after a technical stop and a coerced search, that your pals had weed on them and stashed it under the seat when the blue lights came on..no matter how innocent and with no knowledge of what they possessed, you get handcuffed and caged,lucky if you were not thrown to the dirty ground face down and had a kneee on your neck while ” officer safety” was attended to.

    The principal of constructive possession is critical for justice..prosecutors would slaver over a policy that enabled anyone remotely near contraband, or even a legal weapon, to be considered in possession and liable, and anything that enflames an already jaded prosecutor is bound to be a nightmare for civl liberties and the true application of impartial justice. Most prosecutors forget very soon about their duty to ” ..seek justice despite fewer convictions”..insure that those not aware of or participating in a crime willingly are never charged just to fish for plea bargains and inflate the office numbers..if you are avaracious enough and predatory enough and amoral to a , to you, morally defensive degree, you will get the judgeship or the party nomination, and you don’t have to destroy lives and insure a large part of a marginalized population may allow their resentment of perceived injustices to fester into even more anti-social actions…voters want rapists and home invaders and thieves and wife beaters prosecuted, along with drunk drivers and anyone who harms a child. Mala in se. Crimes that offend the human moral nature are rightfully punished harshly.

    But the vast majority of arrests are for petty and mostly victimless offenses, only on the books due to political shamelessness and the complete refusal of the elected politicians to observe the will of the majority of the people, preferring to avoid attack ads and sound bites from opponnents who are hedging their bets with ” old time religion ” and the far right crowd…political chincanery with the suffering of the morally innocent forgotten in the stampede for another term in office and all the perks it brings. Lose the respect of the law by the people and no longer is the system trusted, in any regard. Bad laws that cannot be defended intellectually, scientifically or historically are despised by the people and demeans the courts, turning them into profit centers, taxing a commodity and also having the temerity to confiscate it and cage the user with hard core crininals, who will either school him in further crimes, or far worse and change his psyche forever, depending on his mettele when caged with predators..safe to say that most pot smokers would not fare well in general population, being a mellow and generally non-aggressive group in general. Morally repugnant! Indefensible! It will take the people, rising up in numbers that cannot be ignored at the peril of politicians jobs, demanding justice and sane laws and restoring some semblance of respect for the law…it is a dangerous thing for too many citizens to come to believe that a ridiculous law or laws equates with a ridiculous and crooked system..from such movements radical changes have been born…let us hope the change to sanity will come peacefully and logically. But have no doubt, ity is coming..the tide will not be turned.

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