The defendant knew the passenger had a firearm prior to the passenger entering the vehicle and the passenger handled the firearm openly while sitting in the front-passenger seat next to the defendant driver. The jury, the Massachusetts Appeals Court, and the Massachusetts Supreme Court all agreed that based on these facts it is reasonable to assume that the defendant was aware of the weapon’s presence in his car. Under Massachusetts law the prosecution is required to argue constructive possession because the defendant did not physically possess the firearm. The prosecution must prove both knowledge of the weapon’s presence and the ability to exercise control over the weapon.[2]
The lower courts determined that the defendant’s ownership and control of the vehicle were significant factors when considering the defendant’s ability to exercise control over the firearm. The Massachusetts Appeals Court decided that the defendant’s ownership and operation alone were enough to constitute control because the defendant “questionably” could exercise control over contraband in the vehicle. However, the Massachusetts Appeals Court and the Supreme Court disagreed about whether those factors alone were enough to constitute control over the firearm. The Massachusetts Supreme Court ultimately disagreed on that issue and used it as the basis to overturn the lower court’s decision. The Court considered the defendant’s ownership and operation to be only enough to constitute proximity to the weapon and not enough to exercise control.
While the Massachusetts Supreme Court does have legitimate reasons for overturning this conviction, does this ruling encourage law-bidding behavior or does it just give knowledgeable criminals an opportunity to evade prosecution? Consider, if you will, the following scenario: driver Roberts and passenger Kennedy are out and about on a Saturday night looking to commit an armed robbery. Driver Roberts has a prior conviction that prevents him from lawfully possessing a firearm. Passenger Kennedy has thus far in his life evaded arrest and has a valid conceal-carry permit. Each is in physical possession of a concealable firearm registered to passenger Kennedy when a police officer pulls the vehicle over. Prior to stopping, Driver Roberts hands the firearm in his possession to passenger Kennedy. The police officer approaches the vehicle and finding no laws violated releases driver Roberts with just a ticket. Driver Roberts has, under the Massachusetts’s Supreme Court’s interpretation of constructive possession, evaded prosecution.
It is sound policy to enforce an understanding of constructive possession that when a vehicle or residence owner is aware of the presence of contraband, that person is in constructive possession of the contraband. Such a policy is not only a reasonable interpretation of an owner’s ability to exercise control, but further encourages law-abiding behavior by making a vehicle or residence’s owner responsible for the content of his or her space. This interpretation thus makes the owner the initial “gateholder” for his or her space and encourages the owner to quickly respond to the presence of contraband or face criminal charges. Such a policy makes legal status clear and holds individuals responsible for tolerating criminal activity in their private spaces.
Ryan Hatley
Blogger, Criminal Law Brief
[1] No. SJC-11149 (Mass. 2013); see http://www2.bloomberglaw.com/desktop/public/document/Commonwealth_v_Romero_No_SJC11149_2013_BL_70571_Mass_Mar_15_2013_
[2] See Commonwealth v. Brzezinski, 405 Mass. 401 (1989); see http://masscases.com/cases/sjc/405/405mass401.html
I think extending constructive possession in such a manner may have an interesting relationship to the Pinkerton rule. But the logic behind the crime of felon in possession is to keep firearms out of the hands of dangerous people. Creating a substantive offense for Robert, from the lawful firearm possession of Kennedy, raises interesting policy questions.
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