Possession of a Firearm During Commission of a Felony

Possession of a Firearm During the Commission of a Felony Defense Lawyer

Daytona Beach Firearm Enhancement Attorney

Retired Homicide Detective. Former Police Officer. Trial Lawyer.

Being accused of possessing a firearm during the commission of a felony can dramatically increase the seriousness of a criminal case.

In many situations, the firearm allegation is not the primary criminal charge.

Instead, prosecutors allege that a firearm was possessed while another felony was being committed.

Those allegations frequently arise in cases involving:

  • Drug trafficking
  • Drug possession
  • Armed burglary
  • Armed robbery
  • Aggravated assault
  • Aggravated battery
  • Home invasion
  • Carjacking
  • Organized fraud
  • Other felony offenses

A firearm allegation may expose a defendant to substantially greater penalties than the underlying felony alone.

For that reason, these cases require careful legal analysis from the very beginning.

The firearm allegation itself frequently becomes one of the most heavily litigated issues in the case.

Questions often include:

  • Did the defendant actually possess the firearm?
  • Was the firearm readily accessible?
  • Did another person possess the firearm?
  • Was the firearm lawfully discovered?
  • Was the search constitutional?
  • Can prosecutors actually prove possession?

At the Law Offices of Patrick J. McGeehan, P.A., we represent individuals charged with firearm offenses and serious felony crimes throughout Daytona Beach, Volusia County, Flagler County, and Central Florida.

Before becoming a criminal defense lawyer, Patrick J. McGeehan served as a police officer, traffic homicide investigator, homicide detective, and police instructor. He understands how complex criminal investigations are conducted because he personally participated in them. Today, he uses that investigative experience to identify weaknesses in the prosecution’s case and protect the constitutional rights of his clients.

Quick Facts

Common Allegation

Possession of a Firearm During the Commission of a Felony

Common Underlying Charges

  • Drug trafficking
  • Drug possession
  • Armed robbery
  • Burglary
  • Aggravated assault
  • Aggravated battery
  • Home invasion
  • Carjacking

Potential Consequences

Depending upon the allegations, a firearm enhancement may significantly increase:

  • Prison exposure
  • Mandatory minimum sentences
  • Criminal fines
  • Felony classification
  • Long-term collateral consequences

Common Defenses

  • Lack of possession
  • Constructive possession not proven
  • Illegal search
  • Illegal seizure
  • Firearm belonged to another person
  • No connection between the firearm and the alleged felony
  • Constitutional violations
  • Insufficient evidence

What Does “Possession of a Firearm During the Commission of a Felony” Mean?

Many people assume prosecutors only need to show that a firearm happened to be nearby.

That is not how criminal cases are decided.

Every criminal prosecution requires proof beyond a reasonable doubt.

Simply discovering a firearm near an individual does not automatically establish criminal possession.

Likewise, the existence of another felony charge does not automatically prove that the firearm was possessed during the commission of that offense.

Instead, every case depends upon its own facts.

Questions frequently include:

  • Where was the firearm located?
  • Who owned the firearm?
  • Who exercised control over it?
  • Was the firearm readily accessible?
  • Was another individual present?
  • Did officers recover fingerprints or DNA?
  • Was the firearm lawfully seized?

The answers to these questions often determine whether prosecutors can sustain the firearm allegation.

What Must the State Prove?

The burden of proof always belongs to the prosecution.

A defendant has no obligation to prove innocence.

Instead, prosecutors must establish every required element beyond a reasonable doubt.

Depending upon the specific allegations, prosecutors may be required to prove:

  • A qualifying felony was allegedly committed.
  • A firearm was present.
  • The defendant knowingly possessed the firearm.
  • The possession occurred during the commission of the alleged felony.
  • The investigation complied with constitutional requirements.

Failure to establish any required element may prevent the State from obtaining a conviction or enhancement.

Actual Possession vs. Constructive Possession

Many firearm enhancement cases involve constructive possession rather than actual possession.

Actual possession generally involves a firearm found on the defendant’s person.

Constructive possession frequently involves firearms located:

  • Inside vehicles
  • Inside residences
  • Inside backpacks
  • Inside bedrooms
  • Inside safes
  • Near narcotics
  • Inside jointly occupied property

Constructive possession frequently becomes one of the most disputed issues in firearm prosecutions.

The prosecution must establish considerably more than the mere presence of a firearm.

Questions involving knowledge, access, ownership, and control often become central to the defense.

Drug Cases Frequently Involve Firearm Allegations

One of the most common situations involving firearm enhancements arises during narcotics investigations.

Police officers executing search warrants frequently recover both controlled substances and firearms.

The immediate assumption is often that the firearm belonged to the person arrested.

That assumption is not always correct.

Many residences contain multiple occupants.

Firearms may belong to another family member.

Vehicles may be borrowed.

Property may be jointly owned.

Because these investigations frequently involve constructive possession, careful review of the evidence becomes essential.

Simply finding a firearm in the same location as suspected narcotics does not automatically establish every legal element necessary for conviction.

Why Every Firearm Enhancement Case Requires Careful Review

These cases frequently involve multiple criminal allegations occurring simultaneously.

The firearm enhancement may become just as important as the underlying felony.

Every aspect of the investigation should therefore be independently evaluated.

Important questions include:

  • Was the traffic stop lawful?
  • Was the search warrant valid?
  • Was the firearm lawfully seized?
  • Was the defendant properly identified?
  • Did another person admit ownership?
  • Does forensic evidence support the allegations?
  • Can prosecutors actually prove knowing possession?

An experienced criminal defense attorney should answer those questions before making strategic decisions regarding motions, plea negotiations, or trial.

The arrest report is only the beginning of the investigation.

Illegal Searches Frequently Determine the Outcome

Many firearm enhancement cases begin with a search.

The firearm itself is often discovered only after law enforcement officers conduct:

  • A traffic stop
  • A vehicle search
  • The execution of a search warrant
  • A probation search
  • A consent search
  • An inventory search following impoundment

Whether that search complied with the United States Constitution and the Florida Constitution frequently becomes one of the most important issues in the case.

The fact that officers ultimately located a firearm does not automatically make the search lawful.

Important questions often include:

  • Why did officers initiate the encounter?
  • Did they have reasonable suspicion?
  • Was probable cause present?
  • Was a warrant required?
  • Did an exception to the warrant requirement apply?
  • Did officers exceed the lawful scope of the search?
  • Was consent voluntarily given?

If law enforcement violated constitutional protections, the defense may seek to suppress the firearm and any additional evidence obtained as a result of the unlawful search.

In some cases, excluding that evidence may substantially weaken the prosecution’s case.

Search Warrants Must Comply with Constitutional Requirements

Many firearm enhancement allegations arise after officers execute a search warrant at a residence or business.

Search warrants are powerful investigative tools, but they are not unlimited.

Officers must generally remain within the scope authorized by the warrant.

Important questions frequently include:

  • Was the warrant supported by probable cause?
  • Was the information presented to the judge accurate?
  • Did officers search areas outside the warrant’s scope?
  • Were all constitutional procedures followed during execution of the warrant?

Simply because officers possessed a warrant does not automatically mean every aspect of the search was lawful.

An experienced criminal defense attorney should carefully review the warrant, supporting affidavit, and execution of the search.

Drug Investigations Often Include Firearm Allegations

One of the most common situations involving firearm enhancements occurs during narcotics investigations.

Law enforcement officers execute a search warrant looking for controlled substances and recover one or more firearms.

Prosecutors may then allege that the defendant possessed a firearm during the commission of the drug offense.

Those allegations are often more complicated than they initially appear.

Questions frequently include:

  • Who actually owned the firearm?
  • Was the firearm legally possessed?
  • Was another individual living in the residence?
  • Did multiple people have access to the location?
  • Was the firearm locked away?
  • Was it connected to the alleged criminal activity?

Simply finding drugs and a firearm in the same residence does not automatically establish every legal element required for conviction.

Every case depends upon its own facts.

Shared Homes Frequently Create Constructive Possession Issues

Many residences contain more than one occupant.

Examples include:

  • Married couples
  • Unmarried couples
  • Roommates
  • Adult children
  • Extended family members

Firearms discovered inside shared residences frequently create difficult factual questions.

For example:

Was the firearm located inside a common area?

Inside another person’s bedroom?

Inside a locked safe?

Hidden inside someone else’s personal property?

The prosecution must still establish knowing possession.

The mere presence of a firearm inside a shared residence does not automatically establish criminal liability for every occupant.

These cases frequently require careful examination of ownership, access, control, and the surrounding circumstances.

Shared Vehicles Present Similar Challenges

The same issues often arise inside vehicles.

Police may recover a firearm from:

  • The glove compartment
  • The center console
  • Under a seat
  • The trunk
  • A backpack
  • A gym bag

If multiple occupants were inside the vehicle, determining who actually possessed the firearm may become a central issue.

Important considerations often include:

  • Who owned the vehicle?
  • Who borrowed it?
  • Who had access to the firearm?
  • Did another occupant claim ownership?
  • Was the firearm in plain view?
  • Was forensic evidence collected?

These factual disputes frequently become important during plea negotiations and trial.

Common Police Mistakes

Although most investigations are conducted professionally, mistakes sometimes occur.

Examples may include:

  • Arresting the wrong individual based upon assumptions rather than evidence.
  • Failing to interview all available witnesses.
  • Overlooking surveillance footage.
  • Failing to collect fingerprint or DNA evidence.
  • Incomplete documentation of the location of the firearm.
  • Inaccurate descriptions contained in police reports.
  • Failure to preserve important evidence.

An experienced criminal defense attorney should independently evaluate the investigation rather than relying solely upon the conclusions contained in the arrest report.

The Importance of Body Camera and Dash Camera Evidence

Modern investigations are frequently documented through body-worn cameras and patrol vehicle recording systems.

Those recordings often answer important questions that written reports cannot.

Video may establish:

  • Where the firearm was located.
  • Who first mentioned the firearm.
  • Whether consent to search was requested.
  • Whether another individual admitted ownership.
  • The exact sequence of events.
  • Statements made immediately after the discovery of the firearm.

Occasionally, video evidence contradicts portions of the written police report.

Because of that, body camera recordings should be obtained and carefully reviewed whenever they are available.

Every Enhancement Should Be Independently Challenged

One of the biggest mistakes made in firearm enhancement cases is assuming that the enhancement automatically applies because another felony has been charged.

That assumption is often incorrect.

The firearm allegation deserves its own careful legal analysis.

An experienced defense attorney should independently evaluate:

  • The underlying felony allegation.
  • The firearm allegation.
  • The constitutional issues.
  • The forensic evidence.
  • The witness testimony.
  • The physical evidence.

Each allegation presents separate legal questions.

Each should be tested independently.

Only after thoroughly reviewing the evidence should decisions be made regarding motions, negotiations, or trial strategy.

A careful investigation frequently uncovers weaknesses that are not immediately apparent when charges are first filed.

How These Cases Are Really Defended

Every criminal case is unique.

No experienced criminal defense lawyer should decide upon a defense strategy until every available piece of evidence has been reviewed.

That is particularly true when prosecutors allege possession of a firearm during the commission of another felony.

In these cases, the firearm allegation is often treated as though it automatically follows the underlying felony charge.

It does not.

The firearm allegation must stand on its own.

The prosecution must prove every required element beyond a reasonable doubt.

An experienced defense attorney begins by asking questions the arrest report often fails to answer.

For example:

  • Can the State actually prove possession?
  • Was the firearm connected to the alleged felony?
  • Was another individual equally capable of possessing the firearm?
  • Was the investigation conducted lawfully?
  • Does the physical evidence support the officers’ conclusions?

Only after those questions are answered can an intelligent defense strategy be developed.

The Underlying Felony Must Also Be Proven

One issue that is sometimes overlooked is that the firearm allegation often depends upon the prosecution’s ability to prove the underlying felony.

If the underlying felony cannot be proven, the enhancement allegation may also fail.

For that reason, an experienced criminal defense lawyer evaluates both allegations independently.

For example, if the underlying charge involves drug trafficking, important questions may include:

  • Was the traffic stop lawful?
  • Was the search warrant valid?
  • Was the narcotics evidence lawfully seized?
  • Can the State prove possession of the controlled substance?
  • Was laboratory testing completed?
  • Does the evidence support the quantity alleged by the prosecution?

Weaknesses in the underlying felony often affect the firearm allegation as well.

Cross-Examining the Investigating Officers

Many firearm enhancement cases are won through careful cross-examination rather than dramatic courtroom arguments.

The officers who conducted the investigation must explain every significant decision they made.

Important areas of inquiry frequently include:

  • Why did officers conclude the firearm belonged to the defendant?
  • Did another individual claim ownership?
  • Were all occupants interviewed?
  • Why was fingerprint testing not requested?
  • Why was DNA testing not performed?
  • Were photographs taken before the firearm was moved?
  • Did officers preserve all available evidence?
  • Was surveillance footage collected?

Jurors often evaluate not only what officers investigated, but what they failed to investigate.

An incomplete investigation may create reasonable doubt.

The Importance of Forensic Evidence

Firearm prosecutions sometimes involve forensic evidence.

Depending upon the facts, investigators may rely upon:

  • Fingerprint analysis
  • DNA testing
  • Firearm examination
  • Serial number tracing
  • Digital evidence
  • Surveillance video
  • Cell phone records

Forensic evidence should never be viewed in isolation.

The presence or absence of forensic evidence does not automatically determine guilt or innocence.

Instead, it should be evaluated together with every other piece of evidence presented in the case.

In some investigations, law enforcement performs little or no forensic testing.

The absence of available testing may become an important issue during trial.

Plea Negotiations Require Careful Preparation

Not every case should proceed to trial.

Likewise, not every case should end with a negotiated plea.

Meaningful negotiations usually occur only after the prosecution understands that the defense has thoroughly investigated the case and is fully prepared to litigate constitutional issues, challenge witness credibility, and present the case to a jury if necessary.

Preparation creates leverage.

The stronger the defense investigation, the stronger the attorney’s negotiating position.

State and Federal Firearm Prosecutions

Some firearm allegations remain in Florida state court.

Others may become the subject of a federal investigation.

Federal firearm prosecutions often involve:

  • Different procedural rules
  • Different sentencing laws
  • Federal investigators
  • Federal prosecutors
  • Federal judges

In some situations, federal penalties may be substantially greater than those available under Florida law.

Determining whether a case is likely to remain in state court or proceed federally is an important part of early case evaluation.

Why Investigative Experience Matters

Many criminal defense lawyers first learn firearm investigations after entering private practice.

Patrick J. McGeehan learned them by conducting criminal investigations himself.

Before becoming a lawyer, he served as a:

  • Police Officer
  • DUI Investigator
  • Traffic Homicide Investigator
  • Police Instructor
  • Retired Homicide Detective

He investigated violent crimes, executed search warrants, interviewed witnesses, evaluated physical evidence, and prepared cases for prosecution.

Today, he applies that same investigative experience to protecting individuals accused of serious criminal offenses.

Every investigation should be independently reviewed.

Every assumption should be tested.

Every constitutional right should be protected.

Frequently Asked Questions

Does merely having a firearm nearby automatically create an enhancement?

No.

The prosecution must prove every element required by law. Simply being near a firearm does not automatically establish criminal possession or justify a sentencing enhancement.

What if the firearm belonged to someone else?

Ownership and possession are different legal concepts.

Whether another person’s ownership creates a defense depends upon the facts, the available evidence, and whether prosecutors can establish knowing possession beyond a reasonable doubt.

Can multiple people be charged if one firearm is found?

Yes.

However, prosecutors must still prove the legal elements applicable to each individual defendant.

The fact that several people were present does not automatically establish possession by everyone.

Can an unlawful search defeat the firearm allegation?

Potentially.

If law enforcement obtained evidence through an unconstitutional search or seizure, the defense may seek suppression of that evidence.

Whether suppression affects the outcome depends upon the remaining evidence available to the prosecution.

Should I discuss the firearm with law enforcement?

Anyone under criminal investigation should carefully consider their constitutional rights before making statements that may later be introduced into evidence.

Consulting an experienced criminal defense lawyer before answering investigative questions is often in your best interest.

Every Firearm Enhancement Allegation Deserves a Thorough Defense

A firearm enhancement should never be treated as an automatic consequence of another criminal charge.

Every enhancement must be supported by admissible evidence.

Every constitutional protection continues to apply.

Every witness should be carefully evaluated.

Every investigation should be independently reviewed.

Careful preparation, thorough investigation, and strategic litigation frequently make the difference between accepting the prosecution’s conclusions and challenging them successfully in court.

Why Clients Choose Patrick J. McGeehan

Firearm enhancement cases are rarely won by simply reading the arrest report.

The real work begins by determining whether the investigation was conducted lawfully and whether the prosecution can actually prove every element of the alleged offenses.

Before becoming a criminal defense lawyer, Patrick J. McGeehan spent more than two decades in law enforcement serving as a:

  • Police Officer
  • DUI Investigator
  • Traffic Homicide Investigator
  • Police Instructor
  • Retired Homicide Detective

During that career, he investigated violent crimes, supervised complex criminal investigations, executed search warrants, interviewed witnesses, collected evidence, and testified in court.

Today, he uses that investigative experience to defend individuals accused of serious felony offenses throughout Daytona Beach, Volusia County, Flagler County, and Central Florida.

Every firearm enhancement case begins with the same questions:

  • Was the investigation lawful?
  • Can the prosecution actually prove possession?
  • Was the firearm connected to the alleged felony?
  • Were constitutional rights respected?
  • Does the physical evidence support the allegations?

Those questions often determine whether the prosecution can ultimately sustain the charges.

Every Case Should Be Thoroughly Investigated

No criminal charge should be accepted at face value.

An arrest represents the beginning of the legal process—not the end.

An experienced criminal defense lawyer should independently examine every aspect of the investigation.

That includes:

  • The legality of the initial encounter.
  • The search of any vehicle or residence.
  • Statements obtained by law enforcement.
  • Physical evidence.
  • Witness credibility.
  • Body camera recordings.
  • Dash camera recordings.
  • Laboratory reports.
  • Search warrants.
  • Digital evidence.

A careful review frequently uncovers issues that were overlooked during the initial investigation.

Those issues may significantly affect the outcome of the case.

Contact A Daytona Beach Firearm Crimes Lawyer

Being accused of possessing a firearm during the commission of a felony places your freedom, your criminal record, and your future at risk.

These allegations should never be viewed as automatic or unavoidable.

Every criminal charge must be supported by admissible evidence.

Every constitutional protection still applies.

Every investigation deserves careful review.

If you have been arrested for possession of a firearm during the commission of a felony in Daytona Beach, Volusia County, Flagler County, or anywhere in Central Florida, contact the Law Offices of Patrick J. McGeehan, P.A.

An experienced criminal defense attorney can evaluate the evidence, explain your legal options, and begin protecting your rights immediately.

Frequently Asked Questions

Does simply finding a firearm near another felony automatically create a firearm enhancement?

No.

The prosecution must prove every element required by law. The mere presence of a firearm near alleged criminal activity does not automatically establish criminal possession or justify an enhancement.

Can I be charged if the firearm belonged to another person?

Possibly.

Ownership and possession are separate legal concepts.

The prosecution must still establish knowing possession beyond a reasonable doubt.

Can multiple defendants be charged based upon the same firearm?

Yes.

However, prosecutors must independently prove the required elements against each individual defendant.

The presence of several people does not automatically establish possession by everyone.

Can an illegal search defeat the firearm allegation?

Potentially.

If evidence was obtained through an unconstitutional search or seizure, the defense may seek suppression of that evidence.

Whether suppression affects the prosecution depends upon the remaining admissible evidence.

What if the underlying felony charge is dismissed?

The facts of every case are different.

Because firearm enhancement allegations are tied to other criminal charges, developments involving the underlying felony may significantly affect the prosecution’s overall case.

Should I answer questions about the firearm?

Anyone under criminal investigation should carefully consider their constitutional rights before making statements that may later be used in court.

Consulting an experienced criminal defense lawyer before answering investigative questions is often advisable.

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