North Florida’s Highest Dismisses Illegal Firearm Charge, Finds No Constructive Possession

December 19, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s 1st District Court of Appeal ruled a defendant could not be convicted of possessing an allegedly illegal firearm found in the center console of his vehicle. Here’s why.

In Florida, possession of contraband (e.g. drugs, illegal guns) can be proven using one of two theories – actual possession or constructive possession. Though someone does not physically possess an illegal item to be convicted, constructive possession can be quite difficult to prove (depending on the circumstances). 

Before discussing constructive possession, it is first important to understand actual possession.

Per Sanders v. State, 210 So. 3d 246, 248 (Fla. 2d DCA 2017), actual possession of an illegal item by a defendant is established when any of the following are true:

• The illegal item is found in the defendant’s hand or on their person
• The illegal item is found in a container in the defendant’s hand or on their person
• The illegal item is within the defendant’s ready reach and is exclusively under his control

If none of the above are true and law enforcement still wishes to charge someone (as they heavily suspect the contraband was theirs), they may do so based on a theory of constructive possession.

For someone to be proven guilty on a theory of constructive possession, the State must prove all of the following beyond a reasonable doubt:

• The defendant knew about the contraband in their presence
• The defendant knew that the contraband was illegal (e.g. if a firearm, they knew they were prohibited from owning one)
• The defendant was able to exercise dominion and control over the contraband (T.W. v. State, 666 So.2d 1001, 1002 (Fla. 5th DCA 1996)

Constructive possession can be especially tricky to establish when an illegal item (e.g. drugs, guns, paraphernalia) is discovered on jointly-occupied premises. If multiple individuals are present near where the contraband is discovered (e.g. in the same home or car), the State must provide independent proof that the contraband was the defendant’s.

This “independent proof” of constructive possession can come in various forms, including (Thomas v. State, 269 So. 3d 681, 684 (Fla. 2d DCA 2019)):

• The admission of a defendant’s pretrial incriminating statements (e.g. “The drugs were mine…”)
• Witness testimony (e.g. someone else in the home/vehicle or an uninvolved witness claiming the contraband belongs to the defendant)
• Scientific evidence (e.g. DNA or fingerprints) tying the defendant to the illicit item(s) in question

If the State does not have any of these three forms of “independent proof,” a jury cannot infer that contraband belonged to the defendant. Santiago v. State, 991 So. 2d 439, 442 (Fla. 2d DCA 2008). This may result in pretrial dismissal of charges against a defendant (or a finding of not guilty at trial).

A particularly common type of “constructive possession” case is one involving the discovery of illegal items, such as firearms, in a vehicle. If someone who has been convicted of a felony is tied to a vehicle where a firearm is found (e.g. driving it/the vehicle is registered in their name), law enforcement may charge them with possession of a firearm by a convicted felon.

But what happens when the State is unable to offer independent proof (in any of the above three forms) that the firearm belonged to the defendant? This issue was directly addressed by Florida’s 1st District Court of Appeal (Tallahassee and North Florida’s highest court) in a major case. 

Let’s break down Kemp v. State, 166 So.3d 213 (Fla. 1st DCA 2015) and what it means for Florida criminal defendants who face charges based on a theory of constructive possession.

KEY CASE: Kemp v. State, 166 So.3d 213 (Fla. 1st DCA 2015) 

In Kemp, the defendant (Kemp) was charged with and convicted of possession of a firearm by a convicted felon. The seizure of the firearm came after the police executed a search warrant on a home where Kemp and four other men were present. 

Adjacent to the residence was an area where a Chrysler (vehicle) was located, along with a few other cars. Officers performed a search of the Chrysler and found a rental agreement in the glove compartment that Kemp had signed, indicating he had rented the vehicle from August 29 until September 5 (the day of the search).

Officers then checked the center console and found a handgun on top of a cell phone receipt that bore Kemp’s name. After confirming Kemp was a convicted felon (prohibited from possessing firearms), Kemp was arrested and charged with unlawful possession of the firearm.

Note: Possession of a firearm by a convicted felon in Florida is a second-degree felony (up to 15 years in prison and a $10,000 fine). To learn more, click here.

At trial, Kemp moved for a judgment of acquittal (MJOA), arguing that the judge should dismiss the charges as a matter of law rather than letting the jury decide.

Kemp reasoned that the State was proceeding on a theory of constructive possession, yet had no independent proof, since:

• The State could not prove that anyone else had not been in the rental car during the term of the rental contract (in fact, another man had driven the car on August 31)
• The State did not tie Kemp to the firearm using any DNA/other scientific testing
• No witnesses testified as to firsthand knowledge that the firearm was Kemp’s
• Kemp did not make any incriminating statements (e.g. confessions)

Nevertheless, the trial judge denied the MJOA request – and Kemp was ultimately convicted. The trial judge found that since the other man who’d driven the vehicle was not the owner of the firearm (he denied it under oath), the State presented enough evidence of constructive possession to send the case to the jury.

On appeal, Kemp renewed his MJOA argument. He asserted that because he showed someone other than himself had occupied the vehicle, and there was no independent proof the firearm was his, the trial judge misapplied the law (should have granted the MJOA).

The 1st DCA agreed with Kemp and reversed his conviction. Discussing the high burden of proof the State had in constructive possession cases, the court wrote:

“When the “premises where contraband is found is in joint, rather than exclusive, possession of a defendant, however, knowledge of the contraband’s presence and the ability to control it will not be inferred from the ownership but must be established by independent proof.”… Here, there is no dispute that no one was in or near the rental car when police arrived at the residence (i.e., no one had possession of the car), the car was rented by Appellant, the console was closed when police searched the car, and both a handgun and a receipt for payment of a cellular phone bill in Appellant’s name were found in the center console of that car.”

“The issue is whether this evidence was sufficient to establish Appellant’s knowledge of the handgun in the console; in other words, to rebut Appellant’s reasonable hypothesis of innocence that, as the trial court summarized, “somebody else drove the vehicle at some point in time, and it is their gun as opposed to [Appellant’s].””

In essence, because the State only had circumstantial evidence that the gun belonged to Kemp, the State had to conclusively rebut Kemp’s reasonable hypothesis of innocence (that the gun was someone else’s) for him to be found guilty. Since the State failed to do so, the 1st DCA reversed Kemp’s conviction. The court concluded:

“The State presented no evidence to rebut Appellant’s evidence that other individuals either drove or occupied the car in the intervening two days between the date on the receipt and the search. Also, police could not testify from whom or where they obtained the keys to the car, and could not say who drove the rental car to the residence on the day of the search.”

“Furthermore … although the presence of the T–Mobile receipt bearing Appellant’s name suggests Appellant may have placed the receipt there, “[s]uch an inference, however, provides no time frame with regard to when the [gun] came to reside” in the console, “nor any help as to appellant’s present dominion over the [gun].” 32 So.3d at 191. Thus, we hold that the evidence here was insufficient to support a prima facie case that Appellant was in constructive possession of the firearm, and thus we must reverse Appellant’s conviction.”

In sum, Kemp v. State, 166 So.3d 213 (Fla. 1st DCA 2015) is a significant development in Florida’s corpus of case law surrounding constructive possession. The 1st DCA found that the State could not prove Kemp constructively possessed the firearm found in the rental car’s center console because:

• There was evidence that someone else had occupied the vehicle at some point
• It was not proven that the firearm was placed in the center console before the last time Kemp was known to be in the vehicle (September 3, according to the receipt)
• Kemp did not confess to owning the firearm
• No witnesses affirmatively said that the firearm was Kemp’s (even though one denied it was his)
• No DNA/other scientific evidence tied Kemp to the firearm

Florida defense attorneys and criminal defendants should be aware of Kemp, as it is a major case that reinforces the lofty burden of proof State has in constructive possession cases – and affirms that a conviction cannot be obtained without independent proof of knowledge, dominion, and control. 

If someone is concerned about a charge of possession of drug paraphernalia, it is crucial to find experienced and aggressive legal representation as soon as possible. This vital decision could make the difference in whether or not a person is subject to a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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