The irony of living in a high crime area is that it makes the innocent more susceptible to searches and arrests. The case of Commonwealth v. Karen K. looks at a juvenile who was searched based on a police officer’s assumptions about the local area.

What happened in the Karen K. case?

Karen K. is a juvenile who resides in the Boston area. On November 1st, 2018, a concerned resident of a housing complex called the Boston Police Department to report that a group of “kids” was loitering and displaying a gun outside the complex. Officer Lopes reported to the scene. He was familiar with the complex because he had made many arrests there in the past. Lopes had a negative connotation associated with this building, and police had responded to shots fired at the building that same week.

In a recent Massachusetts Appeals Court opinion, Commonwealth v. Taylor, the court allowed the Commonwealth to essentially get “two bites at the apple” when prosecuting a defendant for firearm possession.

The defendant was first charged with “carrying a loaded firearm.”  The charge of “carrying a loaded firearm,” as written in the statute, requires a predicate offense of either “carrying a firearm without a license” or “possession of a machine gun or sawed-off shotgun.”  In essence, in order to charge the defendant with the charge of “carrying a loaded firearm,” the Commonwealth would have first had to charge the defendant with either of the two predicate offenses.

At the close of trial, the defendant argued that he must be found not guilty because the Commonwealth failed to charge him with either of the predicate offenses, and the trial judge granted the motion.

The Commonwealth of Massachusetts requires a license to carry, or LTC, to purchase, possess, and carry a handgun, shotgun, or rifle.  But what does possession actually mean? Of course, if you have the gun on your person, such as in your pocket or purse, then you are in possession of it.  That is what the law calls actual possession. What if you are in a car where there is a gun? Or in a house where someone owns a gun? Does that count as being in possession? Owning a gun is not the same as possessing the gun.

The law does not require that you actual physically possess something for the law to conclude you have possession of that object. There is a type of possession called constructive possession. When it comes to gun laws in Massachusetts, you will want to be aware of what constructive possession means.

The legal definition of constructive possession is if you have:

As a non-resident of Massachusetts who may be traveling within the State, are you allowed to carry a gun and what do you need to know if stopped by the police while carrying a gun? Do not assume that a license from another state allow you to carry a firearm while traveling through other states. If you are stopped by the police while carrying a firearm licensed out of state, what information should you need to avoid arrest?

The Massachusetts Supreme Court recently held that the police do not need to first determine if you have a valid license before arresting you, if they believe your firearm is not legally licensed in the State. To understand what you should do if stopped by the police as an out of state resident with a firearm in Massachusetts, it is important to first understand the local firearms laws.

First, when transporting a firearm, keep it unloaded and locked in a case in your trunk or rear storage compartment. Do not keep the gun in a glove box, a center console, under your seat, on your person, etc., and take care to ensure that the gun is not loaded. Keep the ammunition locked away as well.

The Massachusetts Supreme Judicial Court heard oral argument in the case of Commonwealth v. Brain Harris that raised the issue whether Massachusetts law denies nonresidents the right to bear arms by exposing them to criminal penalties for not having an FID card. This case was argued in November with a decision likely in the next month or two.

In the Harris case, the defendant, Harris, was charged with possession of a firearm without an FID and possession of a Large Capacity Firearm out of the Lowell District Court.  The defendant got into an argument with his then-girlfriend who called the police.  When the defendant’s girlfriend called the police, she told the police he had guns; the police came to the apartment with guns drawn.  Harris showed the police a license to carry in New Hampshire and lead the police to the guns.

Where did the defendant Reside?

The state’s highest court decided this week to uphold Shrewsbury police Chief Gemme’s decision to revoke a Raymond Holden’s license based on an assault and battery charge that was ultimately dismissed. The case is important for those looking to apply for an LTC or those who fear suspension or revocation, because it showed just how broad a licensing authority’s discretion is.

The licensing authority in Massachusetts may deny an application or suspend or revoke for any of the following reasons under G. L. c. 140, § 131 (d) and (f). :

1. A felony conviction as a juvenile or adult- ineligibility waived after 5 years 2. Being the subject of a current 209A restraining order 3. Conviction for possession or sale of drugs 4. Confinement to a hospital for mental illness-may be waived with statement from treating physician 5. Conviction of a misdemeanor punishable by imprisonment for more than two years-waived after 5 years 6. Conviction of a violent crime-never waived 7. Conviction of any weapons charge for which imprisonment may be imposed-waived after 5 years 8. Past or current treatment for drug or alcohol addiction-waived after 5 years with affidavit from physician 9. Being the subject of an outstanding state or federal arrest warrant 10. Not a “suitable person” in the eyes of the licensing authority

Police officers often obtain evidence during the execution of an arrest warrant, but a Massachusetts criminal defense attorney can ask the court to exclude this evidence if it was obtained unlawfully or in violation of the defendant’s rights. That’s because the manner and circumstances in which an officer could forcefully enter a home to make the arrest are heavily regulated by the courts. The state’s high court in Commonwealth v. Gentile limited police power even further when it held that police officers did not have authority to forcefully enter a home to execute an arrest warrant if they had no concrete evidence that the arrestee was home at the time.

In the matter of Commonwealth v. Gentile, police officers forcefully entered the residence of Gentile in an effort to execute two outstanding arrest warrants against him. When the officers first approached the residence, Gentile was nowhere in sight, and a lady with her daughter answered the door. When asked whether defendant was at home, the lady replied that he was not.

The officer at the door alleged that the lady looked at the bedroom at the end of the house and appeared nervous when she was asked about Gentile. Based on these observations, the officer forcefully entered the residence and search the bedroom at the back of the house for Gentile. Gentile was found in the bedroom, near an antique musket that was left in plain view. The officers arrested Gentile and subsequently discovered several other firearms in the bedroom.

Massachusetts requires all firearms to be secured in a locked container when not in possession of the lawful owner. As a Boston criminal defense attorney, many are often confused on what is required to satisfy this statute. The recent case of Commonwealth v. Reyes decided by the Massachusetts Supreme Judicial Court discussed what is truly meant by this statute.

The defendant in this case owned a firearm lawfully with a class A license. On his way to work as a correctional officer the defendant had the gun on him and left it in his glove compartment going into work. His car was later searched and the gun was found with no lock or safety device attached to it. The defendant was charged and convicted of the storage status violation.

The defendant asked for the charge to be dropped because the law is unconstitutionally vague and also offended his second amendment right to bear arms. The court ruled this did not offend defendant’s second amendment rights as he still had a right to carry the gun. The discussion then turns to whether the “secured in a locked container” provided enough information for the law to be followed by gun owners.

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.