What this Means for Spouses, Significant Others and Third Parties in the Household
In most criminal felony cases, a standard term or condition of probation is the probationer not possess firearms. An area of great misunderstanding is where a probationer lives in a household with his or her spouse, significant other or third party and they have firearms. Probation, in lieu of incarceration, is by the “grace” of courts. A court cannot order a third party not have firearms in the house, so this burden falls on the probationer.
This means the probationer and any other occupant of a home must agree to not have firearms in the residence or the probationer cannot live there. This simple term of probation confuses many individuals as they confuse ownership with possession. There are two types of possession. The first is actual possession, whereby a person would have to have something similar to the firearm in his or her possession, such as holding it. The second is constructive possession, whereby it is known to and available to a person in a household.
Constructive possession means that if any lawfully owned firearms are in a household, the probationer cannot live there or it must be removed. It does not legally matter even if it is one gun, if it is in the home and owned and generally controlled by another occupant. This is a violation of probation, and sometimes probationers do not realize this. Thus, a probationer must obtain a deviation from this standard condition of probation or not live in a home where there is one firearm or can be violated.
The key purpose of our blogs is to provide useful information to the general public for consideration and discussion with counsel of choice. This blog post was written by attorney Bryan Ciyou, who practices firearms law in Indiana and consults throughout the United States.