CA8: While § 922(g)(3) requires an “unlawful user” of drugs in possession of firearms, the question is only PC for seizure; statute is not vague

The government doesn’t need proof beyond a reasonable doubt that defendant was an “unlawful user” of controlled substance to seize firearms around drugs with probable cause. And that doesn’t make the § 922(g)(3) vague. United States v. Figueroa-Serrano, 2020 U.S. App. LEXIS 26644 (8th Cir. Aug. 21, 2020):

… But to seize the weapon, the officers did not need proof beyond a reasonable doubt that Figueroa-Serrano was an “unlawful user” of a controlled substance within the meaning of the statute. Instead, only probable cause was necessary. See Lewis, 864 F.3d at 944. This means the officers needed to be aware of facts establishing a “fair probability” that Figueroa-Serrano possessed the gun as an “unlawful user” of a controlled substance. See Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (defining probable cause).

Based on the information the officers knew at the moment they seized the gun, they had probable cause to believe Figueroa-Serrano possessed the weapon in violation of § 922(g)(3). The officers had smelled burnt marijuana inside the car and noticed Figueroa-Serrano’s eyes were red, which Morgan identified as a possible sign of marijuana intoxication. They also had discovered burnt marijuana and several containers of marijuana wax in the gym bag behind the driver’s seat. The officers knew the possession of concentrated marijuana wax was a felony under state law. They found several other items associated with drug use, including a pipe, a glass dragon, a grinder, and a torch. Together, this evidence provided a “fair probability” that there was a “temporal nexus between the gun possession and regular drug use,” as required by § 922(g)(3). See Turnbull, 349 F.3d at 561. Thus, at the moment they seized the gun, Morgan and Leusink had probable cause to believe Figueroa-Serrano possessed the gun in violation of that statute. See Lewis, 864 F.3d at 944.