Q: Can they charge my felon husband for a gun found during a drug search?

A: In New York, the circumstances surrounding the search and the discovery of the gun in your husband's case are important to understand, especially since he has a prior felony conviction. Generally, if a person has been convicted of a felony, they are prohibited from possessing firearms under both New York state law and federal law. The key issue here is whether your husband can be legally charged for the firearm that was discovered during a search that was intended for drugs.

First, it’s important to note that a search warrant typically allows law enforcement to search for specific items listed in the warrant. If the warrant specifically stated that the officers were searching for drugs and did not mention the firearm, the gun may not be directly covered under the search warrant. However, law enforcement can sometimes still seize items that were in plain view during the search, if they are deemed to be evidence of a crime. This is an exception under the "plain view doctrine", which allows officers to seize evidence they can clearly see while legally present in a location, as long as they have probable cause to believe the item is evidence of a crime.

Regarding the firearm, your husband’s prior felony conviction is significant because it may make it illegal for him to possess a firearm under New York Penal Law § 265.01. This law prohibits individuals with felony convictions from owning or possessing firearms. If the gun was found to be in his possession, even if it was not specifically listed in the warrant, your husband could potentially face charges for criminal possession of a weapon in the second degree (a Class C felony) or another charge depending on the circumstances of the gun’s discovery.

Additionally, the fact that your husband was not allowed to stay upstairs during the search could raise questions about his knowledge of the gun’s location. Law enforcement may argue that even though the search was focused on drugs, the discovery of the firearm in a place that was accessible to your husband could lead to charges related to illegal possession.

In summary, while the search warrant specifically mentioned drugs, the firearm was discovered during a lawful search, and the plain view doctrine may allow the officers to seize it. Since your husband has a felony conviction, he could potentially be charged for possessing the firearm, regardless of whether it was listed in the warrant. It’s advisable for your husband to consult with a criminal defense attorney who can evaluate the specific details of the search, including whether the seizure of the firearm was lawful and whether any additional defenses may apply.

Disclaimer: This response is for general informational purposes only and does not constitute legal advice. For personalized guidance, please consult a qualified attorney licensed in New York.