Prosecutor Objects to Returning My Firearm

[Highcaliber]

A friend and I were charged and arrested for misdemeanor theft for using one too many coupons on the same item. ( Technically, Theft by unlawful Taking ) Plead guilty in order to qualify for diversion. Completed all requirements and case is "dismissed", However I was carrying concealed when arrested at the "large" department store, so my firearm, holster, permit, etc were taken to the police property lockup.

On final court day ( date the charges were dismissed ) I asked my attorney to motion the court to return my property. The prosecutor says they object. They (the prosecutor & store representative) say the "department store" had signs prohibiting the carrying firearms on the property.

We left court as instructed by our Lawyer, took photos proving NO SUCH SIGNS are posted on any entrance door or glass, none found anywhere. Also checked and photographed three other branch locations of same "dpeartment store" NO SIGNS FOUND THERE EITHER.

Was wondering what experience anyone else might have had regarding their primary weopon being KEPT by police property lockup ???

Keep in mind (thankfully) there was NO WEAPONS CHARGE OF ANY KIND. THIS HAPPENED IN KENTUCKY

 

[Phatty]

I'm not familiar with Kentucky law, but it isn't unheard of that your right to the gun could be defaulted due to you possessing it during the commission of a crime.

 

[Highcaliber]

I'm curious why you are asking this question here when you already have a lawyer handling the case for you.

Because, as I said in the OP, "Was wondering what experience anyone else might have had regarding their primary weopon being KEPT by police property lockup ???"

 

[Phatty]

Because, as I said in the OP, "Was wondering what experience anyone else might have had regarding their primary weopon being KEPT by police property lockup ???"

Yeah, I realized what you were asking after my initial post (which I have since edited). Thought you were asking a legal question at first, because of this being the "Legal" forum.

 

[Phatty]

By the way, here is the statute that the prosecutor is probably using to keep your gun:

527.060 Forfeiture.
Upon the conviction of any person for the violation of any law of this Commonwealth in which a deadly weapon was used, displayed or unlawfully possessed by such person the court shall order the weapon forfeited to the state and sold, destroyed or otherwise disposed of in accordance with KRS 500.090.​

There's no doubt you have been convicted of violating "any law" and that you possessed a deadly weapon at the time of committing the crime. The only question is whether your possession was "unlawful." If no signs were posted at the store and you can prove it (which seems likely because you have the pictures), then you seem to be in the clear and should get your gun back.

 

[oasis618]

I'm more intrigued by being charged with a crime for using too many coupons than the part about losing your pistol....

 

[Highcaliber]

The firearm was not "used, displayed or unlawfully possessed". As for the question from oasis618, if you try scanning "the same" coupon "more than once" at a self checkout, for "one item", you will find out the "hard way" just as we did. Theft by deception.

 

[JohnBT]

I am not a trained cashier. A jury would never convict me.

 

[jkulysses]

Did you admit to doing it on purpose or what I can't believe that it actually went this far for something so petty. What were they 50% off coupons on an expensive item or something lol.

 

[Big Boy]

Woah. What? using one too many coupons on an item? I'm confused, am I missing something here?

Isn't it the companies job to know which coupons you can and can't use? And how would that be illegal? ...Or am I just missing that "using too many coupons" meant he stole it.

 

[oasis618]

Oh ok, gotcha.

I am not a trained cashier. A jury would never convict me.

+1 on above.

 

[BigO01]

You used to many coupons on 1 item ?

What is that a class Z misdomeaner or what ?!!

That has to be the dumbest law I ever heard of .

The freaking store employees should know of any restrictions on how and how many coupons are allowed to be used and simply told you that ___ was your limit and just refused to let you use to many as I bet any restriction were printed on the coupons in such small print you would need a magnifying glass to read the darn thing .

And here I thought Jaywalking was a stupid law !!

 

[PTK]

I'm sorry, but more than likely you're not getting your firearm back.

 

[Phatty]

So you're saying that if you scan the same coupon twice at the self-checkout aisle, sirens and flashing lights go off in the store and security guards come running to apprehend you?

 

[Highcaliber]

So you're saying that if you scan the same coupon twice at the self-checkout aisle, sirens and flashing lights go off in the store and security guards come running to apprehend you?

No sirens and lights, just security stopping you at the door, then being brought to the office area. When asked if you have any weapons on your person, I immediately informed them that I did have a CCDW permit and a firearm on my person, and courteously allowed them to remove it from its holster. It may have freaked out the store security, who knows ?

The arresting officer later called me directly on the phone and told me to make sure I try to get my gun back. He also said he would have no problem assisting me in the matter, since he is the officer who officially placed it in lockup. Keep in mind I have no priors, no tickets, etc.

 

[Phatty]

I guess the store's surveillance keeps a really close eye on the self-checkout aisles.

 

[PTK]

No sirens and lights, just security stopping you at the door, then being brought to the office area. When asked if you have any weapons on your person, I immediately informed them that I did have a CCDW permit and a firearm on my person, and courteously allowed them to remove it from its holster. It may have freaked out the store security, who knows ?

The arresting officer later called me directly on the phone and told me to make sure I try to get my gun back. He also said he would have no problem assisting me in the matter, since he is the officer who officially placed it in lockup. Keep in mind I have no priors, no tickets, etc.

Well, when a coupon is a single-use per customer/purchase, using more than one via self checkout is indeed immoral, though I was surprised to learn it's illegal via theft by deception. Makes sense, overall.

 

[Zoogster]

The firearm was not "used, displayed or unlawfully possessed".

Sounds like you would have to reference case law on that issue.
What other laws are on the books which determine when someone is illegally armed in Kentucky?

That would tell you if when you commit a crime a legally possessed firearm immediately becomes "unlawfully possessed" during the commission of a crime, or whether mere possession remains "legally possessed" during the commission of the crime.

If any possession of a firearm during the commission of a crime is illegal in that state or has separate penalties, or case law has decided it that way, then it may meet the definition of unlawfully possessed, even though you legally had it before you were in the process of committing a crime.
Making it unlawfully possessed when absolutely any crime, regardless of how petty is committed, even when legally possessed before you were committing a crime.

Otherwise it was lawfully possessed and so cannot be permanently confiscated or destroyed, and since you are not prohibited is still property that belongs to you and must be returned.

Some states specify extra crimes for possession during specific violent crimes, but I can certainly see some leaving that detail out and simply stating something like "during the commission of a crime" which would incidentally cover all petty crimes not just those typically associated with criminal misuse of a firearm. Allowing LEO to permanently take a several hundred or even couple thousands dollar firearm for even a relatively petty crime. (A class B misdemeanor in Kentucky, the lowest criminal offense, is defined as a crime punishable by a maximum of less than 90s days in jail, and less than a $250 fine. The same term in other states can be used to refer to more severe offenses.)


Interestingly enough a class B misdemeanor is punishable by a maximum $250 fine for an individual in Kentucky. It would certainly be interesting if you could lose a $2,000 1911 because it was in a holster when one was committed.

(Unlawful taking of something worth less than $300 appears to be a class A misdemeanor in Kentucky and more serious, so I just mentioned the above for discussion.)

What were they 50% off coupons on an expensive item or something lol.

No, "unlawful taking" of something over $300 is a felony in Kentucky, so if by expensive you mean something over $300, he would most likely have been charged with a felony rather than a misdemeanor.
So using too many coupons on expensive items would be a felony.
Making someone a prohibited person unable to legally own a firearm.

 

[BigO01]

in which a deadly weapon was used, displayed or unlawfully possessed

That right there is the part of the law that should insure that you get your gun back , unless of course you threatened the cashier with the gun if he/she didn't take more coupons that were legally allowed .

Otherwise it sounds like you broke a frivolous law by accident in other word's you didn't act with "Malice" unless you told them you knew you were breaking the law ?

You're dealing with a massively antigun prosecutor who has his sights set on much higher Political positions and is using you as a stepping stone !

I know this is a huge stretch but if the prosecutor himself did indeed say in court that the signs were in place and they were ask you attorney if as an officer of the court the prosecutor broke the law in some way by making false statements if you did that it would be Perjury wouldn't it ?

Maybe you can bring a little heat on him for making false statements in court ?

 

[kgpcr]

OK i am calling BS here! There is NO WAY it went down like that. One scanners will only alow on coupon scan per qualifying item. Two there is no way you could get a charge like that to stick as they have to prove intent to steal. No way to do that with scanning a coupon twice. We are not getting the full story here. Like wise if a price scans up more that what it is priced for you cant press charges agains the cashier with theft of your money. After spending 30yrs in retail and being intamate with scanners i will call BS on this one.

 

[BigO01]

kgpcr while I have no doubt that you may be the reigning expert on Scanners etc. if you notice he said they plead guilty to the charge , cops and prosecutors don't have to prove a thing when someone falls for that because demanding a trial is time consuming and costly .

As an example my son and his friend and neighbor were arrested for trespassing when they cut across the corner of the neighbors yard "They walked about 6 feet into her yard as he lived diagonal to us and across the street .

My son plead guilty rather then going through the hassle of going back to local court many times etc. and the neighbor his buddy wouldn't and plead NOT guilty and got a attorney .

During the entire ordeal which took months he was even arrested for not appearing in court when his attorney and he failed to show up for a court date but had told him he would take care of the whole thing and get a continence because the attorney couldn't make the appearance , he even spent an entire weekend in the county jail for his attorney's screw up .

 

[Highcaliber]

OK i am calling BS here! There is NO WAY it went down like that. One scanners will only alow on coupon scan per qualifying item. Two there is no way you could get a charge like that to stick as they have to prove intent to steal. No way to do that with scanning a coupon twice. We are not getting the full story here. Like wise if a price scans up more that what it is priced for you cant press charges agains the cashier with theft of your money. After spending 30yrs in retail and being intamate with scanners i will call BS on this one.

If your buddy scans multi items with the same discount coupon, then hands the SAME coupon to you for another "round of scans" you can see the problem the store would have with that... The store considers it price altering or something like that. But the charge is still "theft by deception". The intent apparently comes by way of handing off the SAME coupon for more discounts, and NOT turning in the coupon to any cashier.

By the way, the whole point of my OP was for insight into other peoples experience in retrieving confiscated firearms from police departments property room lockup.

 

[Art Eatman]

From Phatty's Post #5, it's obvious that the gun was in no way involved in the crime. Since there were no signs posted against concealed carry, there is no reason for continued sequestration by the PD.

And it's not pertinent to this forum as to whether or not any member has had a gun held by the Forces of Good & Righteousness.