Judge Lyle E. Frank

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McLean, charged with, among other things, criminal possession of a controlled substance, moved for dismissal for facial insufficiency, and to controvert the search warrant. Officers observed McLean inside a bedroom in which a search warrant was executed and marijuana and a scale with cocaine residue, among other things, were recovered from the top of a table inside the bedroom. The court noted simply being present in a place contraband was discovered, without more, was insufficient to establish possession. It questioned if the “room presumption,”—also known as the drug factory presumption—applied. The court stated the items recovered were in open view, and found the room presumption applied to the instant charges. It also found the counts were interwoven, declining to dismiss any of them. Further, McLean's motion to controvert the search warrant, issued before his arrest, was granted to the extent a Darden hearing was ordered. It ruled McLean had standing to challenge the warrant as it presumed prosecutors would rely on the theory of possession based on the room presumption as a defendant had standing to challenge a search where “criminal possessory charge was rooted solely in a statutory presumption attributing possession to a defendant.”

Judge Lyle E. Frank