Maintaining a Dwelling — Part II

The crime of maintaining a dwelling has four elements. To be guilty, a person must:

(1)  knowingly

(2)  keep or maintain

(3)  a store, shop, warehouse, dwelling house, building, vehicle, boat, aircraft, or other place

(4)   (a) being resorted to by persons unlawfully using controlled substances or

(b) being used for unlawfully keeping or selling controlled substances.

In my last post ^[1] on this crime, I focused on Element (2). In this post, I’ll focus on another area of confusion regarding this offense: Element (4)(b). While Element (2) requires that the defendant keep or maintain the property, Element (4)(b) requires that the property be used for unlawfully keeping or selling controlled substances. The statute’s use of the word “keep” in Element (2) and the related term “keeping” in Element (4)(b) has created some confusion, particularly because the terms mean different things in each element. As used in Element (2) the term “keep” refers to the defendant’s control and authority over the premises, vehicle, etc. In Element (4)(b), however, the word “keeping” refers to possession of controlled substances on or in the property.

As used in Element (4)(b), the term “keeping” “denotes not just possession, but possession that occurs over a duration of time.” State v. Dickerson, 152 N.C. App. 714, 716 (2002) (quoting State v. Mitchell, 336 N.C. 22, 32-33 (1994)). Thus, one isolated instance of possession on the property is insufficient evidence that the property is used for keeping controlled substances. Compare State v. Craven, ___ N.C. App. ___, 696 S.E.2d 750, 756 (2010) (sufficient evidence when the defendant possessed cocaine in a vehicle over a duration of time and/or on more than one occasion), temp. stay allowed, ___ N.C. ___, 700 S.E.2d 229 (2010), with State v. Thompson, 188 N.C. App. 102, 105 (2008) (insufficient evidence when the defendant possessed 2.1 grams of cocaine but there was no evidence that he used the premises to keep cocaine over a duration of time), and State v. Lane, 163 N.C. App. 495, 499-500 (2004) (insufficient evidence when drugs were found in the defendant’s vehicle on only one occasion and the evidence did not indicate possession over a duration of time). Similarly, when the allegation is that the property is being used for the selling of controlled substances, evidence of more than one sale is required. Compare State v. Moore, 188 N.C. App. 416, 424-25 (2008) (evidence was sufficient when it showed two sales), and State v. Calvino, 179 N.C. App. 219, 222-23 (2006) (same), with State v. Dickerson, 152 N.C. App. 714, 715 (2002) (the fact that the defendant was in his vehicle on one occasion when he sold a controlled substance did not demonstrate that the vehicle was used for the keeping or selling of controlled substances); State v. Lane, 163 N.C. App. 495, 499-500 (2004) (following Dickerson).

As a general matter, when determining whether the property is being used for keeping or selling controlled substances, the courts consider the totality of the circumstances. See, e.g., State v. Mitchell, 336 N.C. 22, 30 (1994); Moore, 188 N.C App. at 424. Factors relevant to the determination include:

• the amount of controlled substances found, State v. Doe, 190 N.C. App. 723, 731 (2008) (insufficient evidence when 6.5 grams of cocaine was found); State v. Thompson, 188 N.C. App. 102, 106-07 (2008) (insufficient evidence when 2.1 grams of cocaine was found); State v. Battle, 167 N.C. App. 730, 734-35 (2005) (listing this as a relevant factor; insufficient evidence when the defendant possessed 1.9 grams of compressed cocaine powder);
• whether a large amount of cash was found, Doe, 190 N.C. App. at 731 (listing this as a relevant factor); Thompson, 188 N.C. App. at 106-07 (no bright line test as to how much money is enough; $345 in cash insufficient); Frazier, 142 N.C. App. at 366 (listing this as a relevant factor; evidence sufficient when a wallet contained $1,493.00 in cash);
• whether drug paraphernalia was found, Thompson, 188 N.C. App. at 106-08 (listing this as a relevant factor; evidence insufficient when no paraphernalia was found); Doe, 190 N.C. App. at 731 (same); Battle, 167 N.C. App. at 734 (same);
• whether firearms were found, State v. Cowan, 194 N.C. App. 330, 337 (2008) (sufficient evidence when firearms were found at the home);
• whether multiple cellular phones or pagers were found, Thompson, 188 N.C. App. at 106; Frazier, 142 N.C. App. at 366 (evidence sufficient when a number of pagers were found);
• where there was other indicia of drug dealing, State v. Shine, 173 N.C. App. 699, 708 (2005) (evidence sufficient when, among other things, three pieces of scrap paper were found listing initials and corresponding dollar amounts, which the jury could infer was a list of customers and their orders or debts);
• whether the defendant admitted selling controlled substances at the premises, Thompson, 188 N.C. App. at 107-08 (evidence insufficient when, among other things, the defendant did not admit to selling drugs); Doe, 190 N.C. App. at 731 (listing this as a relevant factor); Frazier, 142 N.C. App. at 366 (same);
• whether there is witness testimony that drug sales occurred at the property, State v. Calvino, 179 N.C. App. 219, 222-23 (2006) (evidence sufficient when a witness so testified); and
• whether a large numbers of people have been observed coming and going from the premises, Thompson, 188 N.C. App.at 107 (evidence insufficient when there was no evidence that people “were coming and going from his home in a manner to suggest they were buying drugs”).