Often times, those charged with illegal possession of a firearm in Boston will be arrested when the police officer never saw them in possession of the firearm at all. When a suspect is arrested without actually being in possession of the firearm the prosecution will try to prove constructive possession.

As a Boston criminal defense attorney, it is important to fight this charge of constructive possession as often times it can be an abuse of police discretion when an officer arrests everybody on the scene where a gun was found. The Massachusetts Supreme Judicial Court recently answered what the prosecution needs to show to obtain a conviction for constructive possession in Commonwealth v. Romero.

In Commonwealth v. Romero, the defendant was parked in front of a friend’s house with three other men. The defendant was in the driver’s seat and he had seen one of the passengers with a gun earlier in the day. A police officer pulled behind the defendant’s car and observed the vehicle for several moments. It appeared that all four passengers were passing back an object back and forth. When the officer approached the vehicle he observed a gun in one of the passenger’s laps. The defendant was arrested and charged with possession of a firearm without a license. Since the defendant was not in physical possession of the weapon, the prosecution relied on constructive possession and the defendant was convicted.

On appeal, the SJC ruled that to be convicted of possession of a firearm when only constructive possession can be shown, the prosecution has to prove the defendant had knowledge of the firearm coupled with the ability and intention to exercise dominion and control. A defendant’s presence alone is not enough to prove knowledge or the ability or intention to control and there has to be other incriminating factors to prove the intention.

Here, the court ruled that the defendant had the required knowledge of the firearm and an ability to control it, but that there was no intention to control the firearm so the conviction had to be overturned. The knowledge was shown here as the defendant knew of his friends gun and had been shown it earlier in the day and it was presently being passed around the vehicle. Furthermore, since the defendant was in a vehicle and the firearm was not concealed in any way, he certainly had the ability to have control over the firearm. However, the court ruled that there was no intention to exercise control over the firearm. The fact that he owned the vehicle and was present at the time does not show an intent to control. The court ruled that more than ownership and presence is needed and there needs to be something particular that connects the defendant to the firearm. The defendant did not wear a holster, carry ammunition or anything that tended to show he had the intention of

The SJC in Commonwealth v. Romero was very clear that there has to be some factor that links a defendant to a weapon to prove constructive possession. Without this plus factor as the court calls it, innocent people could be convicted of possession of an illegal firearm by simply being present or an owner of a house or vehicle that happens to have a gun in it. A defendant can be convicted of illegal possession of a firearm without being actually having possession when arrested; however it needs to be clear that the defendant knew about the firearm and had the ability and the intent to exercise dominion over the firearm. But if there is no connection to the defendant and the firearm, than there will be no intent to control and no conviction.