Daytona Beach Felon in Possession of a Firearm Attorney
Retired Homicide Detective. Former Police Officer. Trial Lawyer.
Being accused of possessing a firearm after a felony conviction is one of the most serious weapons charges under Florida law.
Unlike many other firearm offenses, a conviction for possession of a firearm by a convicted felon can result in years in state prison, the permanent loss of important civil rights, and devastating consequences for employment, professional licensing, and your future.
Many people believe these cases are straightforward.
They are not.
One of the first questions prosecutors must answer is whether the accused actually possessed the firearm. That issue is often far more complicated than it initially appears.
Was the firearm actually yours?
Did you know it was there?
Did someone else own it?
Was it found inside a vehicle?
Was it located inside a shared residence?
Did police conduct a lawful search?
Did officers violate your constitutional rights while obtaining the evidence?
Those questions frequently determine whether the State can prove its case beyond a reasonable doubt.
At the Law Offices of Patrick J. McGeehan, P.A., we represent individuals charged with firearm offenses throughout Daytona Beach, Volusia County, Flagler County, and throughout 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 firearm investigations are conducted because he participated in those investigations himself. Today, he uses that investigative experience to carefully examine every aspect of the State’s case and aggressively challenge unlawful searches, weak evidence, and unsupported assumptions.
Quick Facts
Common Charge
Possession of a Firearm by a Convicted Felon
Typical Charge Level
Second-Degree Felony (depending upon the specific allegations)
Potential Penalties
- State prison
- Significant fines
- Probation
- Permanent felony conviction
- Loss of firearm rights
- Additional federal consequences in certain cases
Common Defenses
- Lack of possession
- Constructive possession not proven
- Illegal search
- Illegal traffic stop
- Lack of knowledge
- Another person owned or possessed the firearm
- Constitutional violations
- Insufficient evidence
What Is Possession of a Firearm by a Convicted Felon?
Florida law generally prohibits certain convicted felons from owning or possessing firearms unless their firearm rights have been restored through lawful procedures.
Although this may sound simple, proving unlawful possession is often far more complicated than many people realize.
In many cases, police never observe anyone physically holding the firearm.
Instead, officers recover a firearm from:
- A vehicle
- A residence
- A backpack
- A bedroom
- A glove compartment
- A center console
- A safe
- Shared property
From that point forward, prosecutors must establish that the accused legally possessed the firearm.
That burden belongs entirely to the State.
A felony conviction from years ago does not automatically establish unlawful possession today.
Every element of the offense must still be proven beyond a reasonable doubt.
What Must the State Prove?
Every criminal case begins with one fundamental principle.
The prosecution bears the burden of proof.
A defendant never has to prove innocence.
Instead, the State must prove every essential element beyond a reasonable doubt.
Depending upon the specific facts of the case, prosecutors generally must establish issues such as:
- The defendant had a qualifying felony conviction.
- A firearm was actually present.
- The defendant knowingly possessed the firearm.
- The possession was unlawful.
- The investigation complied with constitutional requirements.
If prosecutors cannot prove even one required element, they cannot obtain a lawful conviction.
Many successful defenses focus on these individual elements rather than simply arguing that “the gun wasn’t mine.”
Actual Possession vs. Constructive Possession
One of the most heavily litigated issues in firearm cases involves the difference between actual possession and constructive possession.
Actual possession generally involves a firearm physically carried by or immediately accessible to an individual.
Constructive possession is much more complicated.
Constructive possession may become an issue when officers locate a firearm somewhere other than on the defendant’s person, such as inside a vehicle, home, or other location.
Because constructive possession cases frequently involve multiple occupants, shared residences, or jointly owned property, they often present significant factual disputes.
The mere presence of a firearm near an individual does not automatically establish criminal possession.
Questions frequently arise regarding:
- Ownership
- Knowledge
- Access
- Control
- Ability to exercise dominion over the firearm
These issues often become central to the defense.
Why These Cases Are Frequently Defensible
Many people assume a firearm found inside a vehicle automatically belongs to the driver.
That assumption is often incorrect.
Likewise, a firearm discovered inside a shared residence does not automatically belong to every occupant.
Police officers frequently make arrests based upon circumstantial evidence.
However, circumstantial evidence must still withstand careful legal scrutiny.
Important questions include:
- Who owned the firearm?
- Who had access to it?
- Was anyone else present?
- Were fingerprints obtained?
- Was DNA collected?
- Were statements legally obtained?
- Was the search constitutional?
Every answer matters.
Every fact matters.
Every constitutional protection matters.
Constructive Possession: The Most Common Issue in Firearm Cases
Many prosecutions for possession of a firearm by a convicted felon do not involve a firearm found in the defendant’s hand or pocket.
Instead, the firearm is often discovered somewhere nearby.
It may be located inside a vehicle.
It may be found beneath a seat.
It may be recovered from a bedroom.
It may be hidden inside a closet, backpack, or center console.
In many cases, several people had access to the location where the firearm was discovered.
Those cases frequently involve what is known as constructive possession.
Constructive possession is often one of the most heavily litigated issues in Florida firearm prosecutions because the State cannot simply point to the existence of a firearm and assume it belonged to the accused.
Instead, prosecutors must establish far more than mere proximity.
The fact that someone was near a firearm does not automatically establish criminal possession.
Likewise, merely occupying a vehicle or living in a residence where a firearm is located does not automatically prove guilt.
Constructive possession cases frequently turn on questions such as:
- Who owned the firearm?
- Who placed it there?
- Who knew it was there?
- Who exercised control over it?
- Who had access to it?
- Did someone else admit ownership?
- Is there forensic evidence connecting the defendant to the firearm?
These questions frequently become the focus of the defense.
A careful review of the evidence often reveals significant weaknesses in the State’s case.
Shared Vehicles Create Difficult Cases for Prosecutors
One of the most common firearm investigations begins with a traffic stop.
Police stop a vehicle for a traffic violation.
During the investigation, officers discover a firearm somewhere inside the vehicle.
The firearm may be located:
- Under a seat
- Inside the glove compartment
- Inside the center console
- Behind the driver’s seat
- In the trunk
- Inside a backpack
- Beneath clothing or other personal property
If multiple occupants are present, determining who actually possessed the firearm is often far from simple.
The State cannot rely solely upon the fact that an individual happened to be sitting near the firearm.
Ownership, knowledge, access, and control frequently become disputed factual issues.
This is particularly true when the vehicle belongs to someone else, when several individuals recently occupied the vehicle, or when personal property belonging to multiple occupants is found inside.
These facts frequently create reasonable doubt.
Shared Residences Present Similar Problems
The same legal principles frequently apply inside homes and apartments.
Firearms are often discovered during the execution of search warrants involving narcotics investigations, probation searches, or unrelated criminal investigations.
Police may locate firearms inside:
- Bedrooms
- Closets
- Garages
- Storage rooms
- Nightstands
- Common living areas
Many homes contain multiple occupants.
Adult children.
Roommates.
Spouses.
Girlfriends or boyfriends.
Extended family members.
Simply living in the same residence does not automatically establish possession of every item located inside that residence.
One of the first questions an experienced criminal defense lawyer should ask is whether prosecutors can actually prove who exercised dominion and control over the firearm.
The answer is not always as obvious as the arrest report suggests.
Illegal Searches Can Change Everything
Many firearm prosecutions begin with a search.
Whether that search was lawful frequently determines whether the firearm may be admitted into evidence.
Important constitutional questions often include:
- Was the traffic stop lawful?
- Did officers unlawfully extend the detention?
- Was consent voluntarily given?
- Did police exceed the scope of the consent?
- Was a warrant required?
- Did an exception to the warrant requirement actually apply?
- Was the search warrant legally sufficient?
- Did officers remain within the scope of the warrant?
If officers violated the Fourth Amendment, the defense may seek suppression of the firearm and other evidence obtained during the search.
When critical evidence is suppressed, the prosecution’s case may be substantially weakened and, in some circumstances, dismissed altogether.
For that reason, an experienced defense attorney should carefully examine not only the firearm itself, but also every step that led to its discovery.
The Importance of Police Body Camera and Dash Camera Evidence
Modern firearm investigations are increasingly documented through body-worn cameras and in-car video systems.
These recordings often become some of the most important evidence in the case.
Video may answer questions that police reports do not.
For example:
- Where exactly was the firearm located?
- Who made statements about ownership?
- Did officers ask leading questions?
- Did someone immediately claim the firearm?
- Were Miranda warnings provided when required?
- Was consent requested?
- Did the defendant deny knowledge of the firearm?
- Did officers accurately describe the scene in their reports?
In many cases, video evidence either strengthens or significantly weakens the prosecution’s version of events.
An experienced defense attorney should obtain, review, and compare every available recording with the police reports and witness statements before deciding upon the best defense strategy.
Every Firearm Case Is Different
There is no single defense that applies to every firearm prosecution.
Some cases focus on constitutional issues.
Others involve constructive possession.
Some turn on forensic evidence.
Others involve conflicting witness testimony.
Still others depend upon whether prosecutors can prove a qualifying prior conviction.
Because every firearm case presents unique facts, every defense should begin with a careful review of the evidence rather than assumptions based upon the arrest report.
A thorough investigation often uncovers issues that are not immediately apparent when charges are first filed.
Trial Strategy in Felon in Possession of a Firearm Cases
Every criminal case is unique.
No experienced trial lawyer should decide upon a defense strategy before thoroughly reviewing the evidence.
That said, firearm possession cases often present recurring issues that experienced defense attorneys recognize immediately.
One of the first questions is whether the prosecution can actually prove possession.
Another is whether law enforcement lawfully obtained the firearm.
Sometimes the strongest defense involves constitutional issues surrounding the search.
In other cases, the defense centers on constructive possession.
Occasionally, the dispute involves whether the object recovered by police legally qualifies as a firearm under Florida law.
Witness credibility may also become important.
Police reports sometimes differ from body camera recordings.
Witness statements occasionally change over time.
Physical evidence may contradict assumptions made during the initial investigation.
Every inconsistency should be carefully examined before trial.
An experienced criminal defense attorney should never assume the police investigation was correct simply because an arrest occurred.
The purpose of the defense is to test every assumption the prosecution intends to present to the jury.
Challenging the Police Investigation
Jurors often assume police investigations are thorough.
In reality, every investigation depends upon the quality of the evidence collected.
Important questions frequently include:
- Were fingerprints collected from the firearm?
- Was DNA testing performed?
- Were photographs taken before the firearm was moved?
- Was the firearm properly documented?
- Were all occupants interviewed?
- Did officers investigate alternative owners?
- Were surveillance videos obtained?
- Were witnesses overlooked?
Sometimes officers focus on one suspect early in the investigation.
When that happens, other possible explanations may receive little attention.
An experienced defense lawyer should independently evaluate the investigation instead of simply accepting the conclusions contained in the arrest report.
The Importance of Cross-Examination
Many firearm cases are won through effective cross-examination rather than dramatic courtroom arguments.
Police officers must explain every step of their investigation.
That testimony frequently raises important questions.
For example:
- Why did officers conclude the firearm belonged to one particular individual?
- Were other occupants excluded as possible owners?
- What physical evidence connected the defendant to the firearm?
- Was every witness interviewed?
- Were inconsistent statements documented?
- Did officers preserve potentially favorable evidence?
Jurors often evaluate not only what officers did, but what they failed to do.
An incomplete investigation may create reasonable doubt.
Scientific and Forensic Evidence
Modern firearm investigations sometimes involve forensic evidence.
Depending upon the circumstances, prosecutors may rely upon:
- Fingerprint evidence
- DNA evidence
- Ballistic testing
- Firearm serial number tracing
- Photographs
- Digital evidence
- Cell phone data
- Surveillance video
Although forensic evidence can be powerful, it is not always conclusive.
For example, the absence of fingerprints does not necessarily prove innocence.
Likewise, the presence of DNA does not automatically establish knowing possession.
Each piece of evidence must be evaluated within the context of the entire case.
Experienced criminal defense lawyers frequently consult experts when necessary to evaluate forensic evidence and determine whether additional investigation is appropriate.
State and Federal Firearm Charges
Some firearm offenses are prosecuted in Florida state court.
Others may be prosecuted in federal court.
Occasionally, both state and federal authorities investigate the same conduct.
Federal firearm prosecutions often involve:
- Different sentencing guidelines
- Different procedural rules
- Federal investigators
- Federal prosecutors
- Federal judges
Federal penalties can be significantly more severe than comparable state charges.
Determining whether a case is likely to remain in state court or become a federal prosecution is often an important part of early case evaluation.
Sentencing Considerations
Not every conviction results in the same sentence.
Florida courts consider numerous factors during sentencing.
Those factors may include:
- Criminal history
- The nature of the offense
- Whether violence was involved
- Whether another felony was allegedly committed
- The defendant’s personal history
- Mitigating circumstances permitted under Florida law
Some firearm offenses also involve mandatory minimum prison sentences.
Understanding potential sentencing exposure early in the case helps clients make informed decisions regarding plea negotiations, motions, and trial strategy.
Can Firearm Rights Ever Be Restored?
Many people assume a felony conviction permanently ends their ability to lawfully possess a firearm.
The answer is often more complicated.
Depending upon the individual’s circumstances, restoration of civil rights or other legal remedies may be available.
However, restoration is a separate legal process and should never be assumed.
Possessing a firearm before rights have been lawfully restored may expose an individual to additional criminal charges.
Anyone with a prior felony conviction should obtain competent legal advice before attempting to purchase, possess, or carry a firearm.
Frequently Asked Questions
Is simply being near a firearm enough to be convicted?
No.
The prosecution must prove every element of the offense beyond a reasonable doubt.
Simply being present near a firearm does not automatically establish criminal possession.
What if the firearm belonged to someone else?
Ownership and possession are not always the same thing.
Whether another person’s ownership creates a defense depends upon the specific facts of the case.
Can I be charged if the firearm was inside someone else’s vehicle?
Yes.
However, prosecutors must still prove the legal elements required for conviction.
Shared vehicles frequently create factual disputes regarding possession.
Does the State have to prove I knew the firearm was there?
Knowledge is often a significant issue in firearm possession cases.
Whether prosecutors can establish knowing possession depends upon the evidence presented.
Can an illegal search result in dismissal of the charges?
If officers obtained critical evidence through an unconstitutional search or seizure, the defense may seek suppression of that evidence.
Whether suppression results in dismissal depends upon the remaining evidence available to the prosecution.
Should I speak with police if they ask about a firearm?
Individuals under criminal investigation should carefully consider their constitutional rights before making statements to law enforcement.
The decision whether to answer questions may significantly affect the outcome of the case.
Speaking with an experienced criminal defense lawyer before making statements is often advisable.
Trial Strategy in Felon in Possession of a Firearm Cases
Every criminal case is unique.
No experienced trial lawyer should decide upon a defense strategy before thoroughly reviewing the evidence.
That said, firearm possession cases often present recurring issues that experienced defense attorneys recognize immediately.
One of the first questions is whether the prosecution can actually prove possession.
Another is whether law enforcement lawfully obtained the firearm.
Sometimes the strongest defense involves constitutional issues surrounding the search.
In other cases, the defense centers on constructive possession.
Occasionally, the dispute involves whether the object recovered by police legally qualifies as a firearm under Florida law.
Witness credibility may also become important.
Police reports sometimes differ from body camera recordings.
Witness statements occasionally change over time.
Physical evidence may contradict assumptions made during the initial investigation.
Every inconsistency should be carefully examined before trial.
An experienced criminal defense attorney should never assume the police investigation was correct simply because an arrest occurred.
The purpose of the defense is to test every assumption the prosecution intends to present to the jury.
Challenging the Police Investigation
Jurors often assume police investigations are thorough.
In reality, every investigation depends upon the quality of the evidence collected.
Important questions frequently include:
- Were fingerprints collected from the firearm?
- Was DNA testing performed?
- Were photographs taken before the firearm was moved?
- Was the firearm properly documented?
- Were all occupants interviewed?
- Did officers investigate alternative owners?
- Were surveillance videos obtained?
- Were witnesses overlooked?
Sometimes officers focus on one suspect early in the investigation.
When that happens, other possible explanations may receive little attention.
An experienced defense lawyer should independently evaluate the investigation instead of simply accepting the conclusions contained in the arrest report.
The Importance of Cross-Examination
Many firearm cases are won through effective cross-examination rather than dramatic courtroom arguments.
Police officers must explain every step of their investigation.
That testimony frequently raises important questions.
For example:
- Why did officers conclude the firearm belonged to one particular individual?
- Were other occupants excluded as possible owners?
- What physical evidence connected the defendant to the firearm?
- Was every witness interviewed?
- Were inconsistent statements documented?
- Did officers preserve potentially favorable evidence?
Jurors often evaluate not only what officers did, but what they failed to do.
An incomplete investigation may create reasonable doubt.
Scientific and Forensic Evidence
Modern firearm investigations sometimes involve forensic evidence.
Depending upon the circumstances, prosecutors may rely upon:
- Fingerprint evidence
- DNA evidence
- Ballistic testing
- Firearm serial number tracing
- Photographs
- Digital evidence
- Cell phone data
- Surveillance video
Although forensic evidence can be powerful, it is not always conclusive.
For example, the absence of fingerprints does not necessarily prove innocence.
Likewise, the presence of DNA does not automatically establish knowing possession.
Each piece of evidence must be evaluated within the context of the entire case.
Experienced criminal defense lawyers frequently consult experts when necessary to evaluate forensic evidence and determine whether additional investigation is appropriate.
State and Federal Firearm Charges
Some firearm offenses are prosecuted in Florida state court.
Others may be prosecuted in federal court.
Occasionally, both state and federal authorities investigate the same conduct.
Federal firearm prosecutions often involve:
- Different sentencing guidelines
- Different procedural rules
- Federal investigators
- Federal prosecutors
- Federal judges
Federal penalties can be significantly more severe than comparable state charges.
Determining whether a case is likely to remain in state court or become a federal prosecution is often an important part of early case evaluation.
Sentencing Considerations
Not every conviction results in the same sentence.
Florida courts consider numerous factors during sentencing.
Those factors may include:
- Criminal history
- The nature of the offense
- Whether violence was involved
- Whether another felony was allegedly committed
- The defendant’s personal history
- Mitigating circumstances permitted under Florida law
Some firearm offenses also involve mandatory minimum prison sentences.
Understanding potential sentencing exposure early in the case helps clients make informed decisions regarding plea negotiations, motions, and trial strategy.
Can Firearm Rights Ever Be Restored?
Many people assume a felony conviction permanently ends their ability to lawfully possess a firearm.
The answer is often more complicated.
Depending upon the individual’s circumstances, restoration of civil rights or other legal remedies may be available.
However, restoration is a separate legal process and should never be assumed.
Possessing a firearm before rights have been lawfully restored may expose an individual to additional criminal charges.
Anyone with a prior felony conviction should obtain competent legal advice before attempting to purchase, possess, or carry a firearm.
Frequently Asked Questions
Is simply being near a firearm enough to be convicted?
No.
The prosecution must prove every element of the offense beyond a reasonable doubt.
Simply being present near a firearm does not automatically establish criminal possession.
What if the firearm belonged to someone else?
Ownership and possession are not always the same thing.
Whether another person’s ownership creates a defense depends upon the specific facts of the case.
Can I be charged if the firearm was inside someone else’s vehicle?
Yes.
However, prosecutors must still prove the legal elements required for conviction.
Shared vehicles frequently create factual disputes regarding possession.
Does the State have to prove I knew the firearm was there?
Knowledge is often a significant issue in firearm possession cases.
Whether prosecutors can establish knowing possession depends upon the evidence presented.
Can an illegal search result in dismissal of the charges?
If officers obtained critical evidence through an unconstitutional search or seizure, the defense may seek suppression of that evidence.
Whether suppression results in dismissal depends upon the remaining evidence available to the prosecution.
Should I speak with police if they ask about a firearm?
Individuals under criminal investigation should carefully consider their constitutional rights before making statements to law enforcement.
The decision whether to answer questions may significantly affect the outcome of the case.
Speaking with an experienced criminal defense lawyer before making statements is often advisable.
Related Firearm Defense Resources
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