Appeals Court addresses constructive possession and plain view

A recent Appeals Court decision addressed constructive possession of a handgun and drugs in a motor vehicle not belonging to the defendant in which the contraband was not in plain view.

According to the facts found in Commonwealth v. Snow, on August 27, 2007, at approximately 12:30 A.M., Jeffrey Snow was the designated driver in a car that he did not own, transporting several intoxicated friends, including a recent acquaintance who claimed to own the vehicle, but who was passed out in the back seat. All had attended the annual Caribbean Festival held that day in Cambridge.

While on patrol, State Trooper Kevin O’Neil observed the car as it crossed the Longfellow Bridge and drove slowly through a red light without its headlights on. He pulled behind the vehicle, which was stopped in the left lane at another red light; the trooper did not observe any furtive movements by any of the car’s occupants. Approximately ten seconds later, the trooper used his public address system to order the driver to pull to the right side of the road. The driver did so and, after the trooper approached the vehicle and while the driver was looking for his license, the trooper smelled burnt marijuana, radioed for backup which soon arrived, and the troopers, six in all, removed the occupants from the vehicle one at a time and kept them under observation.

While Trooper O’Neil was leaning in from the passenger side to search the car for drugs, Trooper Michael Tulipano searched the car from the driver’s side. The front doors of the car were open, the dome light was on, and Trooper Tulipano used his flashlight; the headlights of the police cruiser behind the car were also on. Trooper Tulipano looked under the driver’s seat and soon found on the floorboard between the pedals and the driver’s seat a plastic bag containing what appeared to be marijuana. Then, kneeling on the seat to get to the console area, he “found a gun tucked between the driver’s side seat and the console in the front seat.” The handle was facing upwards and the barrel facing almost down, the gun situated below the tops of the driver’s seat and console. Trooper Tulipano testified that if his “attention was focused anywhere than looking right down [into the crevice between the seat and the console he] wouldn’t have seen that gun.” He further testified that another officer, whom he did not identify, had to “reach into that crevice and pull it out.” In response to police questions at the scene, the defendant indicated that he did not know to whom either the marijuana or the gun belonged. 

After trial by jury on a constructive possession theory as to both the marijuana and the handgun, the defendant was found not guilty of the charge that he possessed a class D substance (marijuana) in violation of G. L. c. 94C, § 34, and guilty of the three gun related charges, viz: carrying a firearm without a license, G. L. c. 269, § 10(a); possession of a firearm without a firearm identification card, G. L. c. 269, § 10(h); and carrying a loaded firearm, G. L. c. 269, § 10(n).

On appeal, Defendant Snow argued that the Commonwealth lacked sufficient evidence to prove guilt for possession of the firearm. The appeals court agreed.

The case was tried on a theory of constructive possession. To show the defendant’s constructive possession of the gun, the Commonwealth was required to prove more than that he was present in the same car as the weapon. The Commonwealth must also prove that the defendant had knowledge of the gun, “coupled with the ability and intention to exercise dominion and control [over it].”Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989), quoting from Commonwealth v. Rosa, 17 Mass. App. Ct. 495, 498 (1984)

Knowledge is essential because “it would not be a reasonable interpretation that a weapon is within the control of someone who does not know he has it.” Commonwealth v. Boone, 356 Mass. 85, 87 (1969). Proof of the defendant’s knowledge may be by circumstantial evidence, such as that the object was in plain view. It was on this argument that the Commonwealth relied.

While case law has not explicitly defined under what circumstances an object is considered to be in “plain view,” the court used it as “useful guidance.” Accordingly the court found several guideposts, the cases appear to rest on the fundamental premise that an object said to be in plain view must have been plainly visible to the naked eye in the place where it was found. As in the search and seizure context, the police may not move a previously obscured object and then claim that it was plainly visible. It is the government’s burden to prove that the contraband was plainly visible. 

The record does not support the Commonwealth’s position that the gun was in plain view. Apart from the absence of any mention of the words “plain view” in the almost four hundred pages of trial transcript, there was no testimony establishing that the gun was plainly visible. Indeed, the Commonwealth’s own witnesses testified that the gun was only recovered after a thorough search, made with the aid of multiple sources of light that had not been in use while the car was being driven. The circumstances here are quite unlike those in any of the reported cases where an object was deemed to be in plain view for the purposes of constructive possession. 

The police were unable to see the gun while standing outside the vehicle and shining their flashlights in. Contrast Commonwealth v. Albano, 373 Mass. 132, 134-135 (1977). Rather, O’Neil testified that he could not see the gun at any point before beginning a search of the car. That the gun was not plainly visible to the trooper, who was looking down from above and shining a police flashlight through the window, undercuts the contention that it had been in the defendant’s plain view under quite different lighting conditions in a car not his own.

According to testimony, the gun was “below the seat,” and “stuck between the driver’s seat and the console.” The troopers were unable to see the weapon at any point before beginning a thorough search of the vehicle. During the initial stop, Trooper O’Neil, despite making “careful observations” of the vehicle’s interior, did not see a gun. Even after the defendant stepped out of the car, when the interior of the vehicle was illuminated by a dome light, the officer’s flashlight, and the headlights from the police cruiser, the trooper remained unable to see the weapon. Prior to stopping the car, Trooper O’Neil had not seen any interior lights illuminating the car as it was being driven. If the gun was not in the troopers’ “plain view” when the car was flooded with light from three different sources, it cannot be said on this record that the Commonwealth established that the defendant had seen it in far less favorable lighting conditions. Moreover, there was no other evidence that the defendant had seen the gun or knew of its presence in a car that was not his own.

The court could discern no material difference between the facts of this case and those in Commonwealth v. Almeida, 381 Mass. 420. As here, the defendant in Almeida was convicted of constructively possessing a firearm in an automobile that he did not own, with no other evidence to connect him to the gun besides a claim that it was in plain view. As here, there was “no evidence that the gun was easily visible.” Ibid. In reviewing Almeida’s conviction, the court noted that the trier of fact “would have had to speculate that the defendant knew the gun was [concealed in] a car he borrowed that evening, merely from his presence in that car.” Ibid. So too here. The evidence was insufficient “to warrant a reasonable inference of personal knowledge of the presence of the gun,” and the conviction cannot stand.

About Attorney John J. MacLaughlan

John MacLaughlan is Massachusetts licensed attorney as well as a Boston police officer. John is currently assigned to the Youth Violence Strike Force (Gang Unit). He is a graduate of the Massachusetts School of Law with a concentration in Labor Law. He holds a Master’s Degree in Criminal Justice from the University of Massachusetts at Lowell as well as a Bachelors Degree in Political Science from the University of Massachusetts at Amherst. John has taught Defensive Tactics, Firearms, Use of Force, Applied Patrol Procedures, and Police Response to Active Shooters to sworn police officers and police academy recruits. Prior to becoming a Boston Police Officer, John served for 9 years as a police officer in Lowell, where he was a member of the Police Dive Team and Patrol Rifle Team.
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