In the recent case of Commonwealth v. Romero, the Massachusetts Appeals Court issued a split-decision where the defendant, charged with Massachusetts Gun Crimes, challenged his conviction based on insufficient evidence for “constructive possession”.
The defendant in the case was in the driver’s seat of a parked car – he was the owner and operator in the car – along with three other passengers who were sitting in the car as well. At 1:30 a.m., a police officer drove past the car and testified that, as he drove by, he could only see the top of 4 peoples’ heads because they were crouching down in their seats. Upon seeing this, the officer turned around and parked behind the defendant’s car.
As the officer began to approach the car, from about 3 feet away, he testified he could see in the car and from his vantage point one of the rear passengers reach towards the front of the car through the two front seats, this while the defendant/driver was looking side to side and also looking at the front seat passenger, who was looking at an object in his hand.