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When police stop an automobile that is reportedly stolen, it’s not uncommon for them to charge both the driver and the passenger(s) with possessing or receiving a stolen vehicle (M.G.L. c. 266, § 28).

But it is often far more difficult for prosecutors to prove that the passenger or passengers actually “possessed or received” the stolen vehicle.  And Massachusetts courts have repeatedly shown that they will throw out stolen-vehicle charges against passengers if the passengers’ only involvement is being present at the time the automobile is stopped.

A person’s presence in a vehicle as a passenger, without more, is insufficient to prove that he possessed the vehicle.

See Commonwealth v. Campbell, 60 Mass. App. Ct. 215, 217 (2003)

Moreover, to establish “possession,” the Commonwealth must show that the defendant exercised ‘dominion and control’ over the automobile. See Commonwealth v. McArthur, 55 Mass. App. Ct. 596, 598 (2002).

The Commonwealth can, and often will, use a passenger’s lies or inconsistent statements to show his “consciousness of guilt.”  But that alone is insufficient to establish knowledge or possession.

The Commonwealth makes much of the point that there is evidence of consciousness of guilt.  As stated above, when [the defendant] was arrested, he gave a false name.  Evidence of this sort constitutes an implied admission which may, with other evidence, be sufficient to prove guilt.  But standing alone it is not enough. 

Commonwealth v. Fancy, 349 Mass. 196, 201 (1965).

In a similar case, the Appeals Court held that

The defendant’s repeated falsehoods to the police with respect to the identity of the driver were evidence of consciousness of guilt and constituted an implied admission which might, with other evidence, be sufficient to establish guilt…But in this case the ‘other evidence’ was insufficient.” 

Commonwealth v. Johnson, 6 Mass. App. Ct. 956, 957 (1978).

For more on the rights of passengers, see my post What Rights Does a Passenger Have During a Traffic Stop?