Suppressing Evidence in a Restricted-Person Firearm Case

Attorney Answer

A firearm that belonged to someone else can still support a restricted-person charge if the state can show you knowingly or intentionally had it under your custody or control — and separately, a phone taken after the warrant search was already finished, without a new warrant or your consent, is exactly the kind of issue that should be litigated now rather than after your next court date.

Under Utah Code § 76-11-306(2), a category II restricted person — the categories are established in § 76-11-303 — commits an offense if he intentionally or knowingly purchases, transfers, uses, or carries or otherwise possesses a dangerous weapon, and § 76-11-306(3)(b) makes that a third degree felony when the weapon is a firearm. Two things follow from your account. First, the mental state is an element the state has to prove: that you knowingly or intentionally possessed the gun, not simply that it was in the house. Second, ownership is not the test either way — § 76-11-301(4) defines “carry” as having an item under your custody or control, so whose name is on the gun does not decide it. Your version, that it was your wife's and was sitting in a closet awaiting her retrieval, goes to both points. That is a factual dispute a defense attorney litigates; it is not something to resolve by talking further with officers or investigators on your own.

On the phone: a search warrant authorizes the search it describes, and a separate seizure of property after that search is complete generally requires either a new warrant or valid consent from someone with authority to give it. The Tenth Circuit's decision in United States v. Shrum illustrates how closely courts examine both the seizure and any consent that follows one. In Shrum, officers secured a man's home and barred him from it without a warrant, and the court held that securing the home was itself an unreasonable seizure and that the consent he signed roughly three hours later, still locked out, did not cure it. Shrum was not a post-warrant case and does not decide your situation, but the warrantless-seizure-taints-consent principle is worth your attorney examining.

If your appointed counsel is not returning calls, has not pursued something as basic as recovering your phone, and has not contacted you before an upcoming court date, you can raise that with the judge directly. Courts take a documented pattern of unresponsive representation seriously in a felony case. Body camera footage is also often retained by departments for a limited period, so a written preservation request should go out promptly.

What you can do

1. Before your next court date, put your concerns about counsel's lack of communication and about the phone seizure in writing, such as an email, so there is a dated record. 2. At the hearing, ask the judge directly about the status of your case and, if appropriate, about substituting counsel. 3. Contact the public defender's office supervising your case, or the Utah State Bar's referral resources, if your attorney remains unresponsive. 4. Ask your attorney, or a new attorney, to send an immediate written request to the police department to preserve all body camera footage connected to the search and to the phone's seizure. 5. Do not discuss the facts further with officers, your neighbor, or anyone else without your attorney present.

Your next court date is only days away, and motions to suppress and requests to substitute counsel generally have to be raised before trial, so the window is narrow. This needs individual review by a Utah criminal defense attorney immediately.