No showing of constructive possession

Bryant T. Barton won in State v. Beaver, No. 100,241 (Kan. App. Feb. 13, 2009), affirming Judge Miller's dismissal of charges after preliminary hearing in a Clay County possession with intent prosecution. The COA agreed with the district court that the state had failed to show probable cause that Mr. Beaver, a social guest, had constructively possessed drugs with the proper intent:

In the case at bar, the only factors inferring Beaver's constructive possession of the seized items were his relative proximity to the seized items and the fact that such items were in plain view. Weighing against Beaver's constructive possession were the following factors: he was not a resident of the home; no evidence was presented showing that his belongings were found in close proximity to the seized items; no evidence was presented that Beaver had ever participated in the sale of drugs; and no evidence was presented that Beaver acted in a suspicious or otherwise incriminating behavior.

In addition, the State failed to show that Beaver was anything more than a social guest on the premises. Yet, the State contends that Beaver's presence at the home and his proximity to the illegal drugs and drug paraphernalia found on the kitchen table amount to constructive possession of those items. The State, however, presented no evidence that the kitchen was used exclusively for the packaging, selling, delivering, or distributing of methamphetamine. Moreover, the State admitted that the kitchen table was cluttered. In doing so, the State implicitly admitted that there were other items on the kitchen table that were not illegal. For example, the trial court questioned whether the methamphetamine was in plain view:

"[F]rankly I don't think the 21 grams of meth was in plain view based on the photograph in Defendant's Exhibit 2. That little three drawer thing is stuck back behind a bunch of stuff and you can't tell what's in the third or middle drawer of it from the vantage point that he was in."

Without more than Beaver's mere presence and proximity to the illegal drugs, there was no probable cause to believe that he was in constructive possession of the illegal drugs and drug paraphernalia found on the kitchen table.

Nice to see "contructive possession" reigned in a little and made to conform with the charge.

[Update: the state did not file a PR and the mandate issued on March 19, 2009.]