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Main Page Possession of a Dangerous Weapon (Ch. 269 Sec. 10)
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Posted by: OldNancy

Good Afternoon all, I was wondering if you could help me out. Recently I had an arrest for Unlicensed Operation of a MV, and upon doing an inventory search of the vehicle and discovering numerous 94C violations; I found a Chinese throwing star underneath the rear seat cushion. Now I know a Chinese throwing star is considered a "Dangerous Weapon" under M.G.L. Ch. 269 Sec. 10), but the law states it has to be on the person. The question I have is do you think I wrong in charging the subject for the Dangerous Weapon Charge? I just don't want it to affect my credibility as an officer. I've been on the job for a little over a year, and I just don't want it to affect me negatively. He pled out to the 94C violations and was convicted for those; however the Possession of a Dangerous Weapon is pending a trial. Your input on this is greatly appreciated. Thank you in advance.

Posted by: Gil

No motions to suppress? The argument will be "was it under his control" where it was under the rear seat cushion.

I think your good in charging it but my opinion is that they will get a NG in the trial if it gets that far. As long as the star was found during the evidence search after you had your pc to go through the car. Unless your inventory policy states that you search under the seat cushions.

I think if the ADA had any doubts they would have dismissed the charge. I wouldn't be worried about your credibility for adding the charge. Most PD's pile it on and let the ADA make the decisions on what goes forward.

Just curious did the operator give an excuse for the star or deny any knowledge of it?

Posted by: OldNancy

The subject admitted to the drugs that were in his vehicle, but denied any knowledge of the chinese throwing star. There was a half burnt marijuana cigarette next to the throwing star too, which was dicovered after I pulled a bag of marijuana, as well as other parap. from the center console.

Posted by: frapmpd24

When you say it was under the rear seat cushion, could the driver have easy access to the weapon (ie: just placed under there enough to hide the weapon, easy to get at it) or was it well under the cusion and took some searching to find. That may change the scenario either way. An argument could certainly be made more along the lines of constructive posession. Was the chinese star within the "reaching, lungeing, grabbing" area.

Posted by: dave7336

Quote:

Originally Posted by frapmpd24

When you say it was under the rear seat cushion, could the driver have easy access to the weapon (ie: just placed under there enough to hide the weapon, easy to get at it) or was it well under the cusion and took some searching to find. That may change the scenario either way. An argument could certainly be made more along the lines of constructive posession. Was the chinese star within the "reaching, lungeing, grabbing" area.

I was going to suggest constructive possession. The only problem with your situation is that the reports are already written. Unless you were able to articulate how the person could have possessed it in your report, it may be too late to make the argument while on the stand. At least that is what happens at the court I have to use. Different judges may see things differently. Either way, can't go wrong charging the guy and the weapon is off the streets. Good luck

Posted by: Fozzy

Ahhh... The old "I didn't know it was there" defense. That has about a 50/50 chance of success depending on the court.

I think you're good to go on the charge. From 269/10:

(b) Whoever, except as provided by law, carries on his person, or carries on his person or under his control in a vehicle, any stiletto, dagger or a device or case which enables a knife with a locking blade to be drawn at a locked position, any ballistic knife, or any knife with a detachable blade capable of being propelled by any mechanism, dirk knife, any knife having a double-edged blade, or a switch knife, or any knife having an automatic spring release device by which the blade is released from the handle, having a blade of over one and one-half inches, or a slung shot, blowgun, blackjack, metallic knuckles or knuckles of any substance which could be put to the same use with the same or similar effect as metallic knuckles, nunchaku, zoobow, also known as klackers or kung fu sticks, or any similar weapon consisting of two sticks of wood, plastic or metal connected at one end by a length of rope, chain, wire or leather, a shuriken or any similar pointed starlike object intended to injure a person when thrown, or any armband, made with leather which has metallic spikes, points or studs or any similar device made from any other substance or a cestus or similar material weighted with metal or other substance and worn on the hand, or a manrikigusari or similar length of chain having weighted ends; or whoever, when arrested upon a warrant for an alleged crime, or when arrested while committing a breach or disturbance of the public peace, is armed with or has on his person, or has on his person or under his control in a vehicle, a billy or other dangerous weapon other than those herein mentioned and those mentioned in paragraph (a), shall be punished by imprisonment for not less than two and one-half years nor more than five years in the state prison, or for not less than six months nor more than two and one-half years in a jail or house of correction, except that, if the court finds that the defendant has not been previously convicted of a felony, he may be punished by a fine of not more than fifty dollars or by imprisonment for not more than two and one-half years in a jail or house of correction.

A search with probable cause for drugs gets you anywhere in the car that drugs could be concealed. I think you're good on the seat cushions. An inventory search might not get you into the seats but a drug search will. It certainly doesn't help your defendant that the throwing star was found with drugs. "Well I knew the drugs were there but the throwing star is a complete mystery to me..." If it was his car, I think he may have an uphill battle. Of course alot depends on how your court/judge handles things.

It's a case that could go either way, but I think on credibility and propriety of the charge you are all set.

Posted by: NEPS

The statute provides that the offense includes carrying "under his control in a vehicle." It was his car that you found the thing in and he said he knew nothing of it. It was not under any other person's control. I guess there's some chance some passenger of his left it in there, but you had at least probable cause and have a case for conviction. I don't see how this charge should reflect on you in a negative way.

Posted by: Curious EMT

From the generally useless Westlaw:
To warrant finding of constructive possession of weapon, it is not enough to place defendant in same vehicle with weapon. > Com. v. Sadberry (199

692 N.E.2d 103, 44 Mass.App.Ct. 934, review denied > 699 N.E.2d 850, 427 Mass. 1106. Weapons K 17(4)

For purposes of unlawful possession of weapon, "possession" implies control and power, exclusive or joint, or in case of "constructive possession," knowledge coupled with ability and intention to exercise dominion and control; possession may be inferred from proximity conjoined with knowledge, but reasonableness of such inference depends upon the circumstances. > Com. v. Kitchings (1996) 666 N.E.2d 511, 40 Mass.App.Ct. 591, review denied 668 N.E.2d 356, 423 Mass. 1104. Weapons K 4

Most of the caselaw I can find regards to firearms, not other weapons, but the cases were weighed on the knowledge of the firearm being in the vehicle, and ownership / other occupants varried the case outcomes....

Posted by: ratwatcher

I say you go ahead with the charge and let the ADA sort it out if they have a question on it. It is illegal to possess one by law and it in my opinion was in his control 'if' it was under his seat. You will not get hurt by going this route. I have been involved in many similiar situations over the years and came out just fine. Good Luck!

Posted by: j809

Search incident to arrest, good to go. He could have gotten to it ,in his control, immediate area of control.

Posted by: 193

If you can articulate it make the arrest!! Don't ever be concerned of what others think of your credibility!! Good job on the pinch!! As stated before constructive possession is correct!! In the City I work If we find a gun in the car with however many occupants we charge all with the UUW (Unlawful Use of a weapon). Our Laws differ from Ma. but we fall under the constructive possession rule. Good Luck and keep up the good work - taking One of those stars away from some punk all whipped up on weed and who knows what else will always to O.K. in a Judges eye!!

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