Kemp v. State
Kemp v. State, 2015 WL 3652765 (2015)
Winning Party
Appellant
Key Issue
Possession of a firearm by a convicted felon
Case Type
CRIMINAL
Facts
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Other items, including a student handbook, were found in the back seat area.
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Mr. Byrd testified that he drove the rental car all day on August 31, 2013, and turned it over to Appellant’s girlfriend.
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Other individuals had driven or occupied the car in the days before the search.
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Mr. Byrd testified that he did not know how Appellant or the other men got to the residence on the day of the search, or who drove the rental car that day.
•
The rental period was from August 29, 2013, to September 5, 2013, the day of the search.
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Detective Hanson could not recall if the car was locked.
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No DNA or fingerprint testing was done on the firearm or any other items.
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The firearm was found in the center console of a rental car rented by Appellant.
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Police executed a search warrant at a residence where Appellant and four other males were present.
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A newer-model Chrysler was located in a fenced-in area adjacent to the residence.
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Mr. Byrd testified that others, including Appellant’s girlfriend and two other men, had also driven the car during the week before the search.
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Detective Hanson found a rental car agreement in Appellant’s name in the glove compartment of the Chrysler.
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Police could not say who drove the rental car to the residence on the day of the search.
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Police could not testify from whom or where they obtained the keys to the car.
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The officers could not recall how the car keys were obtained, when the men in the residence had arrived, who drove the rental car to the residence that day, who had been driving it during the rental period, or who owned the items in the back seat.
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A T-Mobile receipt in Appellant’s name was also found in the console.
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No one in the residence claimed ownership of the gun.
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The cell phone bill was paid in cash two days before the search.
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A handgun and a receipt for payment of a T-Mobile cell phone bill in Appellant’s name were found in the front-seat center console of the Chrysler.
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Key Holdings
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The evidence was insufficient to support a prima facie case that Appellant was in constructive possession of the firearm.
Citations
Kemp v. State, 2015 WL 3652765, 2015 Fla. App. LEXIS 9038, 166 So. 3d 213 (2015)
Legal Reasoning
The court applied the special standard of review for circumstantial evidence cases, requiring the State to exclude every reasonable hypothesis of innocence. The court also applied the rule of law on constructive possession, requiring independent proof of knowledge and ability to control the contraband when the premises are jointly possessed. The court found that the presence of the T-Mobile receipt and the rental car agreement were insufficient to establish Appellant’s knowledge of the handgun, as other individuals had access to the car and the State failed to rebut Appellant’s reasonable hypothesis of innocence.
Outcome
Reversed with directions to discharge Appellant.
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