Concealed Carrying Without a Permit? That’s a Crime
In North Carolina carrying a concealed weapon in public without a valid permit is a crime punishable as a Class 2 Misdemeanor for the first offense. If found guilty of such a charge, defendants face up to 60 days in jail plus other fines and penalties such as probation. A person can be found guilty of concealed carrying a firearm if they willfully and intentionally carry a pistol or handgun in public without having a valid Concealed Carry Permit (N.C.§ 14-269). This applies to situations where either the person carries a weapon with them or they conceal a weapon that is in their immediate control.
Is Open Carrying Ok? Not if the Weapon is Partially Concealed.
While it is legal to openly carry a firearm in North Carolina in certain areas, the protections of open carry may not apply if a firearm is partially concealed, even if some or most of the firearm is clearly visible. The firearm does not even have to be located on a person’s body to be convicted of a concealed carry violation. North Carolina follows the legal idea of constructive possession to decide whether a gun or anything else is in a person’s possession and control.
What is Constructive Possession?
Constructive possession is a legal principle that allows law enforcement to charge someone with possessing an illegal firearm or controlled substance even if the drugs or weapon is not in the person’s physical possession. Constructive possession deals with instances when a person has the ability and plans to control the item, even if it is not directly on them. For example, if an illegal weapon is found in a person’s car or home, and that person knows about it and can easily access it, they could be charged with constructive possession.
How does the State Prove it?
To prove constructive possession, the State of North Carolina must show that a defendant knew about the controlled substance or weapon and had the intention to exercise control over it. This can be shown through circumstantial evidence, such as the defendant’s access to the location where the item was found, and any statements or behaviors that indicate knowledge or intent. Actions such as the defendant appearing nervous or having knowledge of the location of the illegal item are often used to help the State prove constructive possession.
Stopped and Frisked: Was it Legal?
It’s important to note that being charged with constructive possession of a concealed gun does not necessarily mean that a person will be convicted. Law enforcement must have at least reasonable articulable suspicion to perform a Terry stop and frisk of a suspect’s body. In order for a weapon found as a result of a stop and frisk to be admissible in court, the officer conducting the search must be able to explain how the suspect’s behavior indicated criminal activity based on his extensive training and experience. Law enforcement must have probable cause to search a person when there is no obvious threat to an officer. Further, a judge must agree with the officer that the search was reasonable based on the suspect’s behavior. If a concealed carry violation was discovered due to an unlawful search, then a challenge based on a Fourth Amendment violation against unreasonable search and seizure should be filed with the court.
Your Fourth Amendment Rights
A Fourth Amendment challenge, also known as a suppression motion, is a way to try to keep the State from introducing evidence that was gathered unlawfully. The Fourth Amendment to the U.S. Constitution seems straightforward:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
However, there have been many cases ranging from Terry v. Ohio in 1968 to Torres v. Madrid in 2021 to determine what exactly the Fourth Amendment means in terms of individual civil rights. For example, if a suspect’s behavior indicates criminal activity, law enforcement may not need a warrant to conduct a limited search and seize any suspicious items found. Because these cases make their way through the courts often, and the Law is still being interpreted, it’s imperative you are aware of how these court decisions affect your rights. If you or someone you know may have had your civil rights infringed by an illegal search and seizure, consult with an experienced defense attorney immediately. A motion to suppress based on your Fourth Amendment right to a probable cause warrant could be the key to your defense.
Suppression Motions
A motion to suppress is typically filed by a defendant’s attorney prior to trial, arguing that the evidence in question was obtained illegally or in violation of the client’s Fourth Amendment rights. The motion may be based on a number of different factors, such as an illegal search, an invalid warrant, or an unlawful seizure of property. If a judge grants a motion to suppress, the evidence in question cannot be used against the defendant at trial, which can significantly weaken the prosecution’s case.
Getting Your Weapon Returned
Often, law enforcement officers will seize the gun as evidence when they charge a person with a concealed carry gun charge. It is possible in some cases to have the firearm returned when the charge is resolved. You may need to file a motion and provide testimony under oath in order to have your firearm returned to you following a criminal charge for having a concealed carry gun without the proper permit.
Contact Us
If you have been charged with concealed carrying a weapon, a skilled criminal defense attorney from Dummit Fradin can work with you to challenge the prosecution’s evidence and build a strong defense against the charges. Contact us today to start your defense strategy.