A Hot Potato is Still a Potato

In the Matter of the Welfare of: S.J.J., --- N.W.2d ----, 2008 WL 4007434, Minn.App., September 02, 2008.

 

Police stopped an SUV that S.J.J. was driving. There were five others in the SUV: a front seat passenger, three back seat passengers and one cargo passenger. Police found a loaded revolver midway on the floor of the back seat.

S.J.J. told police the he hadn’t realized that there was a gun in the SUV until he saw it being passed around the back seat. When he removed his hat, one of the passengers placed the gun in it. He looked at it, saw that it was loaded, touched the cylinder release, closed the cylinder (with his hat), and returned it to the passenger in the back seat. All the while, the gun was in the hat. A jury convicted him of being an ineligible in possession of the gun.

The Court of Appeals declines to adopt a “fleeting” or “innocent” possession defense. This is in line with federal circuits that have considered this question. [The Seventh Circuit, however, did posit the hypothetical in which an officer’s weapon slips out of her holster onto the ground, whereupon a felon passing by retrieves it and immediately returns it to the officer; that felon, assuming he wasn’t shot first, may have an “innocent” possession defense.] The Seventh Circuit has held that an “innocent possession” defense is available when combined with a justification – necessity, duress or self-defense – defense. U.S. v. Hendricks, 319 F.3d 993 (7^th Cir. 2003).

The Court also concludes that there was sufficient evidence to support the jury’s finding of possession: S.J.J., the court noted, “knew that there was a gun in the stolen car, it was passed to him inside of a hat, and he checked to see if the gun was loaded before handing it back to another passenger.”