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:

1) knowledge of the object,

2) the ability to exercise control over the object, and

3) the intent to exercise control over the object.

An easy example of this is objects in your nightstand.  The law considers you to be in possession of things in your nightstand, even though you are not actually holding them.  First, you know what is in there.  Second, you can open the drawer and access the items.  Third, accessing the items on occasion is something you intend to do.

Some more complicated examples can be found in some Massachusetts court cases.  In Commonwealth v. Summers, 93 Mass. App. Ct. 260 (2018), the defendant was charged with carrying a firearm without a license and unlawful possession of ammunition for a handgun that was inside a backpack on the floor of the back seat of a car.  The defendant was the only occupant of the backseat.  The Massachusetts Appellate Court noted that because the defendant was the sole passenger in the backseat, and was directly next to the backpack, he was in constructive possession of the case.

Compare those facts to the case of Commonwealth v. Romero, 464 Mass. 648 (2013), where the defendant was in his own car where the passenger had a gun.  That court found that the defendant in that case was not in constructive possession of the firearm.  The defendant owned the car, and knew the gun was in his car.  The defendant also had the ability to control the gun, because his friend offered to let him hold the gun earlier that day.  The court then looked at what the defendant intended.  Because the owner of the car did not show any signs that he intended to control the gun, he was not in constructive possession.

Those cases provide some good guidelines, but what about a firearm in a trunk? Certainly, you cannot immediately access something in the trunk. But,  it is more likely that not that a gun in your trunk will be found to be in your possession. In Commonwealth v. Jeune,(a decision from the Appeals Court), the defendant was driving the car, and had keys to open the trunk.  The police also found drugs in the trunk, but the fact that the defendant had keys which opened the trunk helped the court decided that defendant was in constructive possession of the gun.  The possession of the keys which opened the trunk will often lead to the court concluding you had the ability to access it.  The court will look for other factors to help them determine if you knew the gun was in the trunk (statements made, finding other items you own in the trunk with the gun).  Possessing a gun in Massachusetts does not always mean carrying it on your person, so be careful when you are with someone else who is carrying a firearm, and if you are carrying a gun in your trunk, it must be unloaded and in a locked case or secure container.

To learn more about Gun crimes in Massachusetts visit our website or follow us on Facebook to stay current on issues relating to criminal defense.