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.
ReplyDelete