Jailed Felon Cannot Turn 86 Guns Over to Mom

(CN) - A man who owned an illegal short-barreled shotgun cannot have his mother sell the other 86 weapons seized during his arrest, the Michigan Supreme Court ruled.

After police seized 87 firearms from Kurtis Ray Minch while responding to a domestic disturbance, Minch tried to have the department turn over all of his lawfully owned weapons to his mother, Carol Cutler, as his agent.

Minch claimed he would advise his mother to sell the weapons, and the Muskegon Circuit Court said that forbidding such action would violate his due-process rights.

Though the Court of Appeals affirmed, Michigan found success with the state Supreme Court.

"Michigan's 'felon in possession' statute, MCL 750.224f, prevents a police department from delivering lawfully seized noncontraband firearms to the designated agent of a convicted felon," according to the unsigned decision.

Three of the seven justices with the court concurred in result only.

"This court has held that for possessory crimes in Michigan, actual possession is not required; constructive possession is sufficient," the ruling states.

Quoting precedent, the justices said: 'Although not in actual possession, a person has constructive possession if he knowingly has the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons....' Thus, if defendant designates an agent to possess the firearms on his behalf and the agent does so, defendant is in violation of MCL 750.224f(2)." (Ellipses in original.)

The ruling concedes that Minch is still the legal owner of his noncontraband firearms, and that a successor bailee - such as a mother - can be appointed to possess the weapons during his imprisonment.

Minch erred, however, in trying to have the court appoint the mother as the felon's agent instead of as a bailee.

"The distinction between a bailee and an agent is essential, especially if defendant's mother is appointed successor bailee because her power of attorney already suggests the existence of an agency relationship," according to the ruling.

It was improper for the Court of Appeals to conclude that the police department violated Minch's right to due process by retaining his firearms as a bailee, the justices found.

"Regarding defendant's possessory interest in his weapons, he received all the process to which he was due when he pleaded guilty of the underlying felonies, became a convicted felon, and was rendered statutorily ineligible to possess his 86 firearms," the ruling states.

"Moreover, because the police department does not seek to deprive defendant of his ownership interest in his firearms, no due process violation has occurred," the justices added (emphasis in original).

While the Supreme Court vacated the order from the Circuit Court, it did note that, "in its ultimate disposition of defendant's firearms, the Muskegon Circuit Court must use precise language so as not to authorize a violation of MCL 750.224f."

"Even defendant's mother, who had a durable power of attorney to attend to defendant's affairs while he was incarcerated, may possess the firearms as long as she does so as a bailee and not as defendant's agent," the judges added.

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