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VOLUME 7 - CHAPTER 106
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106.4 Weapons Or Firearms Possession: Defenses And Defense Theories

    106.4.5 Concealed Weapon: Defense Theory That Weapon Was Not Concealed

    106.4.5.1 Concealed Weapon In Vehicle: Weapon Must Be Concealed Within The Vehicle
    106.4.5.2 Concealed Weapon: Defense Theory That Weapon Wasn't Concealed In Person's Clothing, Purse, Briefcase, Etc.
    106.4.5.3 Concealed Weapon: Defense Theory That Weapon Was Discernable By Ordinary Observation

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VOLUME 7 - CHAPTER 106

PRACTICE NOTE: When the weapon is in an vehicle, it must actually be concealed within that vehicle. (See People v. Commons (CA 1944) 64 CA2d Supp 925, 929 [148 P2d 724]; People v. Frost (CA 1932) 125 CA Supp 794, 795 [12 P2d 1096].) A gun which is found in plain view on the seat of the vehicle is not concealed. (See Cope v. State (FL 1988) 523 So2d 1270, 1270-71 [pistol with butt and part of frame on front seat not concealed]; State v. Teague (FL 1985) 475 So2d 213 [uncovered rifle on the front seat of a car with tinted glass windows, which obscured view of the rifle from outside the car, is not a concealed firearm]; People v. Cardwell UNPUBLISHED (F014847).)

OPINION AVAILABLE: To read the Cardwell opinion, click here. [Opinion Bank # O-105].

Annotation, Offense Of Carrying Concealed Weapon As Affected By Manner Of Carrying Or Place Of Concealment, 43 ALR2d 492.

See also generally, NCJIC 305.23.1 [Weapons Offenses].

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VOLUME 7 - CHAPTER 106

RATIONALE: Without special instruction the jury may not understand that the weapon must be hidden in the defendant's clothing or personal property carried by the defendant such as a purse or briefcase.

POINTS AND AUTHORITIES: Courts have interpreted the meaning of "concealment" to be at least partial concealment within the defendant's clothing, purse, briefcase, etc. (See e.g., De Nardo v. State (AK 1991) 819 P2d 903, 907 [concealment can occur in purses, briefcases, or other satchels that people commonly carry]; see also People v. Fuentes (CA 1976) 64 CA3d 953, 955 [134 CR 885]; People v. May (CA 1973) 33 CA3d 888, 891 [109 CR 396].) Hence, merely placing the gun behind one's back does not suffice as concealment. (See e.g., People v. Hale (CA 1974) 43 CA3d 353, 356 [117 CR 697].) This result was reached in In re Lavalle L. UNPUBLISHED (A052159).

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

OPINION AVAILABLE: To read the Lavalle L. opinion, click here. [Opinion Bank # O-113].

RESEARCH NOTES:

Annotation, Offense Of Carrying Concealed Weapon As Affected By Manner Of Carrying Or Place Of Concealment, 43 ALR2d 492.

See also generally, NCJIC 305.23.1 [Weapons Offenses].

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VOLUME 7 - CHAPTER 106

RATIONALE: The jury may need special instruction to understand that if the weapon must be indiscernible from ordinary observation to be concealed.

POINTS AND AUTHORITIES: People v. Jones (MI 1968) 162 NW2d 847, 849; State v. Walls (WI 1994) 526 NW2d 765, 767.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, NCJIC 305.23.1 [Weapons Offenses].

    [A] weapon is concealed when it is not discernible by ordinary observation of persons coming in contact with the person carrying it, casually observing him, as people do in the ordinary and usual associations of life.

[Source: People v. Jones (MI 1968) 162 NW2d 847, 849.]