Will Possessing a Stolen Gun Result in a Prosecution?

Darrail Smith

On another article, I pointed out that mere possession of a stolen item is not enough to convict a person of receiving stolen property, at least in most states.   

My understanding is that virtually all "possession of stolen property" crimes involve an element of "knowing" that the property was stolen.   Arizona has a "Trafficking in stolen property" statute:

A. A person who recklessly traffics in the property of another that has been stolen is guilty of trafficking in stolen property in the second degree.

B. A person who knowingly initiates, organizes, plans, finances, directs, manages or supervises the theft and trafficking in the property of another that has been stolen is guilty of trafficking in stolen property in the first degree

The Legislature has codified permissible inferences in ARS 13-2305:

1. Proof of possession of property recently stolen, unless satisfactorily explained, may give rise to an inference that the person in possession of the property was aware of the risk that it had been stolen or in some way participated in its theft.

2. Proof of the purchase or sale of stolen property at a price substantially below its fair market value, unless satisfactorily explained, may give rise to an inference that the person buying or selling the property was aware of the risk that it had been stolen.

Being in possession of a firearms stolen more than three years ago relieves the buyer of most of the concern about being charged with trafficking in stolen property.  

My retired peace officer friends have told me that prosecution in cases where a private individual buys a firearm without a reasonable knowledge that it is stolen, are unheard of. 

Now we have an extreme case out of Wisconsin that confirms my understanding of the law.  It is the case of Darrail Smith.  Darrail was at the scene of a number of shooting incidents.  He had a concealed carry permit, and some guns that he had in his possession had been stolen.   From jsonline.com:

Darrail claimed ownership of the two guns found in the Tahoe, telling police he bought them online several months prior, and disclosed he was a concealed-carry permit holder, the complaint says. One of the guns was reported stolen from a parked car in Milwaukee in 2013.

Carrington was charged with being a felon in possession of a firearm and posted his $5,000 bail soon after his arrest.

Milwaukee police referred a charge of receiving stolen property against Darrail, but prosecutors declined for lack of evidence that Darrail knew the gun was stolen, according to Lovern, the deputy district attorney.

•••

Six months later, Darrail Smith again came to the attention of Milwaukee police officers.

(snip)

Darrail had a Ruger pistol sticking out of his waistband.

By then, other officers had arrived to help.

Darrail told one of the officers he had a second gun, which had fallen down his pants leg. When officers searched him, they found not only a Glock 9mm pistol in his pants, but also a Springfield 9mm pistol in a holster on his waistband.

All three guns were loaded, and the Ruger pistol had been reported stolen. Police seized all three, and a couple of weeks later, Darrail filed a petition asking a judge to order the guns returned to him.

The point is that a known associate of criminals, at a couple of crime scenes, found with two separately stolen guns, was not prosecuted because there was a lack of evidence that he knew the gun was stolen.

Darrail was eventually charged with another crime, but it was not for possession of a stolen gun.   From jsonline.com:

On May 26, prosecutors charged Darrail and Carrington with two counts of conspiracy to commit possession of a firearm by a felon. Carrington is also charged with being a felon with a gun and bail jumping.

Carrington was arrested on May 28 and posted $5,000 bail. He has pleaded not guilty.

Darrail remains at large.

If Darrail was not prosecuted for possession of a stolen gun, which he said that he purchased online, it is highly unlikely that a legitimate purchaser who can explain how he purchased a gun, say at a gun turn in (buyback),  that turns out to be stolen, will be prosecuted either.   If it were ever determined that you had a stolen gun in your possession, you might end up having to return it to the rightful owner.    Anything worse is highly unlikely.

©2015 by Dean Weingarten: Permission to share is granted when this notice is included.
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