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Anonymous #1
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Got popped
#9163558 - 10/31/08 09:40 AM (15 years, 6 months ago) |
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2 weeks ago I got a knock on the door, it was a early twenties looking girl that asked me if I had a computer or internet access and could download a driver for her because she couldn't access the internet without the software, I said she could go to Kinkos or a public library and use the computer there, then she stated that she didn't have a car, and then said sorry to bother you.
So, I said wait, I'll do it, come in, then I set up a guest account on my Windows OS, and I was kind of paranoid that this may be a ruse to try to steal something so I told her she could use my PC, and I sat on my couch, she said she just moved here from Michigan and asked a few questions about the area, she had a USB stick that she used, did what she did on the PC then said "that's it", and I walked her out and said if she needed anything to feel free to ask me. Then she left.
The next morning at about 10am I got a boom type knock that let's you know who's at the door, I went to the door and saw a cop with his left arm on his sidearm and he was half bent to see in through my window, and said to open the door, I said "why"?, he said "you need to open the fucking door now, if you go back into the house I'm going to kick the door in", I opened the door and said what the hell is this about, the officer said "I'm Sgt. ****** ******* of the ***** ***** sheriffs office, we received a tip that you are growing marijuana at this address, do you mind if I search your home"? I said no, then he said "then we'll get a warrant and you're making this hard on yourself, we know that you've purchased a hydroponic light, commonly used to grow marijuana, we know that you've purchased hydroponic chemicals, commonly used to grow marijuana, we know that you've purchased reflective mylar, commonly used to grow marijuana", (at that point I wanted to scream because the cop kept finishing his sentences with "commonly used to grow marijuana", which is complete bullshit). Then he said "and we know that you have literature on your computer that describes hydroponically growing marijuana, and various recipes for manufacturing illegal narcotics".
I almost had a heart attack at that point, I feel so stupid now, once again I refused to consent to a search, and that's when the Sgt. said that he smelled the "odor of live marijuana", what in the hell is that???? Does living marijuana smell different than dead marijuana?
He continued to use threats to coerce me to consent, and I wanted to give in, something inside me believed him when he said he'll take the stand in court and the sentencing will be worse, at which point I said, there'll be no sentencing, I do not grow marijuana, I don't even have any hydroponic equipment!
At that point one of the deputies asked if there was anyone inside the house, I said no, he said are you sure? I said I am absolutely sure there is no one inside my home, then he asked if it was okay for him to check and again I said "I refuse to consent to any search, no searches period"
They put me in the back of a cop car, and kept opening and closing the trunk, really annoying, I sat there for about 45 minutes, maybe an hour, then one of the cops came and put a piece of paper on the window, he said "you see what that is, it's a search warrant, then left.
The cops went into my house, spent about 10 minutes inside, then the Sgt. came pulled out of the back of the car and asked "where is the lower for the AR-15"? I said I don't have one, I can't have one, all I have is that mil-spec upper that is not considered a firearm, and some magazines with no receiver and no ammunition, he said there is a receiver attached, the "upper receiver" and I said no that is not considered a firearm, he said "what are you missing here, this is an upper RECEIVER and a RECEIVER is considered a firearm according to Florida law, you are done, smartass"
So, long story short, I was charged with possession of a firearm by a convicted felon, they seized all my gun parts even though they are legal for me to possess, but didn't seize the casting that was in one of the boxes with the parts.
No marijuana or hydroponic equipment was found in my home, my lawyer basically doesn't know about firearms, and I told him what I know, but he still said that common sense prevails, but he will do what he can.
The state hasn't filed formal charges yet, so I'm still in the grey about what is really going on, I hope they will take the same stance as Federal law and conclude that an upper is not a receiver, it doesn't help my case that an upper is referred to as an upper receiver.
Oh well, I'll keep everyone updated as more information is known.
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TacticalBongRip
Curious Observer



Registered: 08/20/05
Posts: 527
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woah dude, that sucks! I hope everything turns out alright for ya...keep us updated
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Elementium
Friendly Neighborhood Lurker




Registered: 12/06/06
Posts: 658
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Good job sticking to your guns, at least. Definitely takes courage!
I wish you the best of luck in this matter, friend.
Good vibes your way.
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johnm214



Registered: 05/31/07
Posts: 17,582
Loc: Americas
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Very good job man.
It might seem you won nothing, but you've won everything.
Had you consented the matter of whether they had probable cause would fly out the window and you'd be convicted.
Hope, maybe:
The fourth amendment requires particularity in the place and items to be seized. If they had the evidence they claimed then how did they get a particular warrant for guns?
Answer: They didn't.
So, the search may be illegal and you may be free.
Don't get your hopes up, I've looked at nothing.
Pretty much, the cops could have gotten another warrant. Was there time for them to do so upon the initial inspection and when they brought out the gun? Do you know? Can you look and see online or at the clerks office if any warrant was issued for a gun or similar?
If not you may be in the clear.
Again, don't get your hopes up, I'm just thinking out loud and may be wrong or you may have described things incorectly- who knows.
What state are you in? What appellate district? Look it up and post that here or email me and I'll check it out for ya on the warrants and such.
Edit: This presumes they were telling the truth and that the warrant was for drugs not for guns and that they didn't use the drugs as something they figured you knew you were innocent of so you'd open the door. But that doesn't explain the witness they sent in or the compuer stuff (though they'd guess anyways).
Did you see the warrant? Get a copy of it. Go online and find your case, or go to the clerks office and get the case file if it is unsealed (which it should be now that it is served) and tell use what it says, or at least PM me if you're concerned about monitoring.
Good luck. The cops are total fucking children aren't they? "you see what htis is? This is a warrant" What a dick head. They claim they are professionals, but professionals don't throw temper tantrums and act like out-of-control idiots high on their own authority.
You hurt nobody. Hopefully, since you shouldn't be a criminal, nothing will come of this. Good luck.
Edited by johnm214 (10/31/08 11:40 AM)
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Stonehenge
Alt Center

Registered: 06/20/04
Posts: 14,850
Loc: S.E.
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Re: Got popped [Re: johnm214]
#9164224 - 10/31/08 12:20 PM (15 years, 6 months ago) |
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If they had a valid warrant, then the gun can be admitted as evidence. John is mistaken in that fact. Unless the warrant only allowed them to look in a certain area of the home and they looked in other areas which were not mentioned in the warrant, I see no way out. Normally, the warrant will allow them to search all parts of the residence. They can come in looking for drugs and end up finding guns, illegal merchandise, stolen goods or whatever. They do not have to look only at drugs and ignore other things they may find.
I'm very curious if that girl did some sort of trick on you. I think we all wonder about that. If she placed a trojan horse or otherwise wired your computer to give info to the cops without your permission, and the warrant was based in whole or in part on info gained from that, you have an excellent chance to get the warrant denied and the evidence suppressed. I don't know about the gun laws specificly. I'd have to research that. I hope your lawyer has time to do some serious research for your own sake.
-------------------- “A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship.” (attributed to Alexis de Tocqueville political philosopher Circa 1835) Trade list http://www.shroomery.org/forums/showflat.php/Number/18047755
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johnm214



Registered: 05/31/07
Posts: 17,582
Loc: Americas
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Quote:
Stonehenge said: If they had a valid warrant, then the gun can be admitted as evidence. John is mistaken in that fact. Unless the warrant only allowed them to look in a certain area of the home and they looked in other areas which were not mentioned in the warrant, I see no way out. Normally, the warrant will allow them to search all parts of the residence. They can come in looking for drugs and end up finding guns, illegal merchandise, stolen goods or whatever. They do not have to look only at drugs and ignore other things they may find.
Of course if they had a valid warrant the evidence may be admited- no disagreement.
I cited the basis for my contention and the sitautions in which I believe, without looking up any law as i stated previously, it would apply: the fourth amendment's particularity requirement as to items to be sezied and places to be searched and in a sitatuion where the warrant allowed a search of the house and land upon a parcel and the seizing of drug related items supported by teh affidavits and evidence.
Since I stated thusly previously, what is your disagreement and what is your authority for such? As I've stated I've yet to see how the particularity requirements are enforced as to the exclusionary rules, but I believe if there was no error on the part of the judge and no warrant, exemption, or consent allowed for the collection of non-listed items, then the evidence was seized illegaly and must be barred.
The only thing I could imagine is that the courts might have ruled such is within the inevitable discovery doctrine, that bunch of bullshit, but I don't know.... That wouldn't remove the challenge for the presumably bullshit warrant to begin with (internet sites, made up?, and a grow light) but it would allow the introduction fo the gun.
I really hope the inevitable discovery doctrine isn't applicable...
Anyways stonehenge, I cited my authority previously and again, what is yours for your contention?
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Stonehenge
Alt Center

Registered: 06/20/04
Posts: 14,850
Loc: S.E.
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Re: Got popped [Re: johnm214]
#9164812 - 10/31/08 02:26 PM (15 years, 6 months ago) |
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If the police are executing a valid warrant and see a gun or ammunition, and know the suspect is a convicted felon, they may seize the gun as evidence of a felony. If they didn't know all those things and just saw the gun, then they would have to go back with another warrant to get it. You are correct about that. However, even if the gun was no longer there when they went back, they can testify to what they saw. Since we don't know a lot of relevant facts here, it would be premature to say what is what.
-------------------- “A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship.” (attributed to Alexis de Tocqueville political philosopher Circa 1835) Trade list http://www.shroomery.org/forums/showflat.php/Number/18047755
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tak
geo's henchman




Registered: 11/20/00
Posts: 3,776
Loc: nowhereland
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That sucks man, atleast you were not growing anything with firearms i guess.
I wish you the best, and never trust females in Florida. The police have more of them working as narcs than you will ever believe.
Something similar happened to me in Palm Beach where there were some girls trying to party and I ended up getting arrested. I did nothing wrong, but they needed someone to bring in and that someone was me.
They got me with a couple bullshit charges, but not for what they wanted (drugs). Charges for the other stuff were never filed once they realized I had no one to snitch on. They didn't tell me though, I had to find out for myself. I have no prev's though.
I hope it works out for you man. I feel your pain.
-------------------- The DJ's took pills to stay awake and play for seven days.
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sketchydelux
overdue beeper bill



Registered: 08/20/06
Posts: 558
Last seen: 12 years, 2 months
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Re: Got popped [Re: tak]
#9170655 - 11/02/08 12:24 AM (15 years, 6 months ago) |
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a random chick that you dint know askin to use your interwabs should have been a red flag (how would she know ur online)
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Mephistophelian
Quasi Hob-Nobbery




Registered: 08/14/08
Posts: 2,527
Loc: Camp Crystal Lake
Last seen: 1 year, 2 months
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That's the most bizzare thing I've ever heard of. Random girl knocking on a door to ask for internet access for a driver.
Best of luck man...great you stuck with your rights, stupid cops throwing authority.
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Brainiac
Rogue Scientist



Registered: 04/29/06
Posts: 13,259
Loc: 與您的女朋
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Quote:
sketchydelux said: a random chick that you dint know askin to use your interwabs should have been a red flag (how would she know ur online)
Why didn't, he just slam the door closed..
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Fair is Fair
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tak
geo's henchman




Registered: 11/20/00
Posts: 3,776
Loc: nowhereland
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Re: Got popped [Re: Brainiac]
#9171809 - 11/02/08 10:25 AM (15 years, 6 months ago) |
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Most people have internet access. Especially if he is doing nothing illegal, I don't see a reason to be a dickhead to your neighbors.
But now I know...
-------------------- The DJ's took pills to stay awake and play for seven days.
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Seuss
Error: divide byzero



Registered: 04/27/01
Posts: 23,480
Loc: Caribbean
Last seen: 3 months, 8 days
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> If they had a valid warrant, then the gun can be admitted as evidence.
Even if the warrant was valid (and I assume it was), it depends upon the terms of the warrant and where they searched. It would have been better to have had an attorney present during the search to ensure that the search was legal, and to try and delay or narrow the search before it commenced. It will really be up to the judge at the evidentiary hearing to decide. If the judge decides nay, then there is no case.
> The state hasn't filed formal charges yet, so I'm still in the grey about what is really going on
So you have not been arraigned? They arrested you and then let you go without filing charges? I'm confused here.
> he said "what are you missing here, this is an upper RECEIVER and a RECEIVER is considered a firearm according to Florida law, you are done, smartass"
A name does not define what something is. With respect to firearms, the receiver (or body or frame) is the part of the weapon that contains the operating parts. Under federal law, the lower receiver on the AR-15 is the "firearm" while the upper receiver is NOT.
From Florida law http://www.gunlaws.com/links/linksfl.htm, Section 790.001(6):
Quote:
"Firearm" means any weapon (including a starter gun) which will, or is designed to, or may readily be converted to, expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. The term "firearm" shall not include an antique firearm.
-------------------- Just another spore in the wind.
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johnm214



Registered: 05/31/07
Posts: 17,582
Loc: Americas
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Re: Got popped [Re: Seuss]
#9176888 - 11/03/08 10:39 AM (15 years, 6 months ago) |
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Original poster, what is going on here? Did you want people to try and figure out what the relevant law is in regards to the seizures?
If so you're going to need to provide the text of the warrant, specifically list what the items to be seized and searched for were.
Did they seize items not listed on the warrant? Did they have information supporting the probable cause that such items were at such location, if the wrrant did allow the seizure?
We can look up law on this topic but not without knowing what the warrant provided for and what the warrant was premised upon (less important) as well as where you are (united states? state? Appellate jurisdiction?)
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Chemy
Jesus is Lord
Registered: 10/05/07
Posts: 6,276
Loc: A Church
Last seen: 14 years, 5 months
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Re: Got popped *DELETED* [Re: johnm214]
#9177100 - 11/03/08 11:29 AM (15 years, 6 months ago) |
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OP, hopefully everything will work out and Florida will follow suit with Federal law in your case.
-------------------- Alcoholics Anonymous Narcotics Anonymous Get help, help is free and available 24/7/365. God bless you all and I hope you receive the help you need to turn away from your lives of sin. Mushrooms and drugs make you gay, you can reverse this homosexual condition with rehab, get help! Stop being gay!
Edited by Chemy (11/03/08 12:05 PM)
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johnm214



Registered: 05/31/07
Posts: 17,582
Loc: Americas
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Sorry that happened man. If you want to remain anonomous someone like Seuss or a moderator , if they are able, could probably change you to be anonomous.
Anyways fi you can I'd go down and find the search warrnat at the clerk's office. In some areas they don't file the search warrant under the defendant's name, but rather under a miscelaneous docket entry.
The clerk should be able to help you out.
Good luck. I may look up and see how things are if they seize an item not listed in the warrant and see if the enevitable discovery rule applies or not.
If I had any I'd donate some money to get you a good attorney. You don't deserve this, sorry it happened.
Another victimless crime.
BTW, you can post an anonomous reply if you go to the regular and not quick reply screen. I just tried and it worked. I removed your name from the reply to field if you want to PM seuss and get your name removed for privacy issues.
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Stonehenge
Alt Center

Registered: 06/20/04
Posts: 14,850
Loc: S.E.
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Re: Got popped [Re: Chemy]
#9177178 - 11/03/08 11:46 AM (15 years, 6 months ago) |
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Seuss wrote:
"Even if the warrant was valid (and I assume it was), it depends upon the terms of the warrant and where they searched. It would have been better to have had an attorney present during the search to ensure that the search was legal, and to try and delay or narrow the search before it commenced. It will really be up to the judge at the evidentiary hearing to decide. If the judge decides nay, then there is no case."
I agree that if the judge throws out all the evidence, there is no case. Having an attorney present during the search would be nice but they are under no obligation to tell you they are doing a search and as a matter of usual practice, will not tell the subject. I don't know why, maybe someone would toss out incriminating evidence if they knew it was coming?
The only way I can see the gun not being admitted would be if the cops had no idea he was a felon at the time. But then why would they grab it? They must have known and in which case, they knew the gun was evidence of a crime and they could seize it. They are not limited to taking only things mentioned in the warrant. If they saw drugs, for example, they could seize them.
John, I agree it's frustrating when you can't get info you asked for but they want help with their case.
The police make the original accusation but it means nothing unless the DA files formal charges. In this case, the law says within 30 days. I believe there is a provision for speedy trial but you have to ask for it.
I doubt the OP knows at this time if the girl was involved or not. That should come out at discovery. The OP needs to find a good lawyer and pronto.
-------------------- “A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship.” (attributed to Alexis de Tocqueville political philosopher Circa 1835) Trade list http://www.shroomery.org/forums/showflat.php/Number/18047755
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Anonymous #1
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Re: Got popped [Re: johnm214]
#9177250 - 11/03/08 12:02 PM (15 years, 6 months ago) |
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Quote:
So you have not been arraigned? They arrested you and then let you go without filing charges? I'm confused here.So you have not been arraigned? They arrested you and then let you go without filing charges? I'm confused here.
I was arrested, transported to jail, issued a bond at booking, then saw the magistrate and pre-trial release denied, bond was the same as the booking officer stated, I spent ~3 days in jail then bonded out through a bondsman.
Florida CrimRules: 3.134 Time to file formal charges:
Quote:
The state shall file formal charges on defendants in custody by information or indictment within 30 days of the date of arrest.
I am not in custody so the time limits of 3.134 do not apply.
Quote:
A name does not define what something is. With respect to firearms, the receiver (or body or frame) is the part of the weapon that contains the operating parts. Under federal law, the lower receiver on the AR-15 is the "firearm" while the upper receiver is NOT.
The AR-15 upper houses operating parts, namely the bolt, firing pin and extractor/ejector.
What are defined as operating parts? Florida doesn't say.
I have researched and can't find anything about split receivers in Florida, and Florida seems to be an A-hole about firearms (read Bostic v. State [Florida]) Where Bostic was told (in a certified letter) by ATF and FDLE firearms experts that a muzzleloading rifle is not considered a firearm and Bostic (a convicted felon) could legally possess a muzzleloading rifle for hunting, Bostic was arrested and convicted of possession of a firearm by convicted felon, conviction was upheld by the appellate court and the Florida supreme court dispite having certified letters from the ATF and FDLE and a local sheriff department that the rifle was not considered a firearm.
I have searched my court clerk website and can't find my case listed yet, I am going to have a stroke if I keep stressing about this and I don't know what's happening yet.
Bostic v. State, Case No. 5D03-3270 , COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT, May 13, 2005, Opinion Filed
Quote:
OVERVIEW: Because a rifle defendant possessed was not an "antique firearm," as defined in Fla. Stat. ch. 790.001(1), as it had a fiber optic sight and, thus, not a "replica" of a firearm manufactured in or before 1918, a charge under Fla. Stat. ch. 790.23(1)(a) was properly upheld. Further, the term "replica" was not unconstitutionally void for vagueness.
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johnm214



Registered: 05/31/07
Posts: 17,582
Loc: Americas
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So what definition applies to your charge? Do you know what the charge is?
Is seuss's post the correct definition relevant to any charge you may or are facing
790.001(6)
?
If I can figure out what the relevant definition is I can do a lexis search and hopefully find some language clarifying the definition as applied to your case.
I would think the definition seuss provided excludes you as written and per the rule of lenity you would certianly be excluded, but florida and the criminal courts are dicks. If that is the relevant section hopefully you don't meet the definition, but I'll look if you can tell me what the relevant statutory definition is.
This whole thing is stupid.
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TacticalBongRip
Curious Observer



Registered: 08/20/05
Posts: 527
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OP, you've probably already seen this but it seems like a good piece of info in your support. From wikipedia:
"In strictly legal terms, in the United States the receiver is the actual firearm itself, and as such it is the controlled part (without which operating is impossible). Generally, the law views the receiver as that part of a firearm housing that has the serial number upon it. Thus, in the case that a firearm has multiple receivers (such as the AR-15, which has an upper and lower receiver) the legally controlled one is the one that is serialized (the lower, in the AR-15's case)." (reference)
So, does your upper receiver have the serial number on it?
Also, just from reading the case you posted about the antique weapon, it does seem like the courts were being total arse's but, replica or not the courts probably looked at the replica as a functional firearm. Additionally, it seems like that is something of a different issue related to your case and I wouldn't worry any extra because of the outcome of it.
Just remember... this too will pass. Hope all turns out well for you man. good vibes goin out to ya
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