Is a Single Drug Sale from a Residence Enough to Support a Conviction for Maintaining a Dwelling?

Last week, the court of appeals decided State v. Miller, a case in which the defendant was convicted of maintaining a dwelling based almost entirely on the fact that he conducted a drug sale there. Would the court of appeals find the evidence sufficient under State v. Rogers, __ N.C. __, 817 S.E.2d 150 (2018), which substantially expanded the scope of maintaining a dwelling and related offenses?

In a word, no. The court of appeals deemed the evidence insufficient. But the ruling raises several questions, including whether it is consistent with Rogers. I’ll delve into those questions below.

Facts. According to the court of appeals:

The State’s evidence showed [that an officer] received a complaint asserting Defendant was “involved in sales and narcotics” . . . [so the officer] hired a trusted confidential informant to attempt to purchase crack cocaine from Defendant. . . . [T]he informant . . . knew Defendant, but did not assert she had previously purchased drugs from him. Officers provided the informant with a recording device and $48.00 in cash. The informant went to Defendant’s home and was allowed to enter into his living room. . . . She gave Defendant $48.00 to purchase crack cocaine. Defendant left the room, walked outside and went towards an old school bus parked on his property. When Defendant returned, he provided the requested crack cocaine rocks to the informant . . .

Procedural history. The defendant was charged with PWISD cocaine, sale of cocaine, and maintaining a place to keep controlled substances. He was convicted as charged and appealed. The court of appeals initially ruled that because the evidence concerned a single sale, there was insufficient evidence that the defendant “kept” substances at the residence “over a duration of time.” State v. Miller, 817 S.E.2d 503 (2018) (unpublished). The state supreme court later remanded for reconsideration in light of its opinion in State v. Rogers, __ N.C. __, 817 S.E.2d 150 (2018), discussed immediately below.

Rogers. G.S. 90-108(a)(7) makes it a crime to “knowingly keep or maintain any store . . . dwelling house . . . vehicle . . . or any place whatever, which is resorted to by persons using controlled substances . . . for the purpose of using such substances, or which is used for the keeping or selling of [drugs].” Regular readers will recall that in Rogers, the court ruled that a place may be used for the “keeping” of controlled substances even if the substances are stored in the place very briefly. The court disapproved prior case law that had held that the substances must be stored over “a duration of time,” thereby expanding the scope of the maintaining statute. Jessie Smith wrote about Rogers here.

Miller opinion. Rogers held that “[t]he critical question is whether a defendant’s car is used to store drugs, not how long the defendant’s car has been used to store drugs for.” But in Miller, the court of appeals noted that Rogers also states that “merely having drugs in a car (or other place) is not enough to justify a conviction . . . . The evidence . . . must indicate . . . that the drugs are also being stored there.”

The court of appeals argued, in essence, that “an isolated or single incident of Defendant selling a controlled substance from his home fails to demonstrate that he ‘used’ or maintained the home to keep or sell drugs.” It emphasized that there was

no evidence showing any drugs or drug paraphernalia, scales, residue, baggies, large amounts of cash, weapons, or other implements of the drug trade, were observed or seized from Defendant’s home. The State offered no evidence of any other drug sales taking place at Defendant’s home, beyond the sale at issue. . . . Rogers is distinguishable from the instant case in that it involves the keeping of drugs in a motor vehicle, where other drugs and incriminating evidence of ongoing sales of drugs were present.

Discussion. I have a few thoughts about the case.

  1. The case reveals some ambiguity in Rogers.

My initial reaction was that Miller was inconsistent with Rogers. I thought that the court of appeals was trying to resurrect the requirement that drugs be kept for a period of time in order to sustain a conviction under G.S. 90-108(a)(7). But upon re-reading Rogers, I became less certain, because I became less certain of exactly what Rogers means.

On the one hand, Rogers says that a conviction does not require the storing of drugs over time because “[t]he critical question is whether a defendant’s car is used to store drugs, not how long the defendant’s car has been used to store drugs for.” On the other hand, Rogers also reaffirmed the result in State v. Mitchell, 336 N.C. 22 (1994), where, among other things, police found a marijuana cigarette in the defendant’s car. The Mitchell court reversed the defendant’s conviction for maintaining a vehicle, reasoning that there was no evidence that the defendant kept drugs in the car over a period of time. The Rogers court said that was the wrong rule but the right outcome because having “a single marijuana cigarette in [one’s] car . . . does not indicate that the car was being used to store the cigarette; people often leave cigarettes or other small moveable things in their cars but then take them out soon thereafter.” But isn’t leaving an item in one’s car for later retrieval the very definition of storing it there? And how soon a person plans to take the item out seems to go only to how long the storage will last, which Rogers says is not essential. I am genuinely unsure how to reconcile the logic of Rogers with its endorsement of the outcome in Mitchell. Perhaps the state will seek further review in Miller and the state supreme court will elucidate further.

  1. Must the place be maintained “for the purpose” of keeping drugs?

The court of appeals summarized in Miller that “[t]he question is whether the evidence shows [that the defendant] possessed the property for the purpose of selling or keeping cocaine.” Many other cases use the same shorthand description of the statute. See, e.g., State v. Battle, 167 N.C. App. 730 (2005) (finding insufficient evidence “that Defendant intentionally kept and maintained a room for the purpose of selling cocaine”). But is that an accurate summary? G.S. 90-108(a)(7) says that it is unlawful to keep or maintain a place “which is resorted to by persons using controlled substances . . . for the purpose of using such substances, or which is used for the keeping or selling of [drugs].” The quoted language seems to create two separate limits on keeping or maintaining places: you can’t do it if the place is resorted to by drug users for the purpose of using drugs; and you can’t do it if the place is used for keeping or selling drugs. The word “purpose” appears only in the first prong. It seems that the second prong prohibits maintaining a place used for keeping and selling drugs, whether or not that is the purpose for maintaining the place. It isn’t an academic distinction. For example, suppose that Dan owns a lake house because he likes fishing and boating. Sometimes Dan sells cocaine to his friends when they come up for the weekend, but facilitating drug sales is not the reason Dan has the house, and Dan often enjoys the house with his family without conducting any drug sales. As I understand the statute, Dan is in violation, because he maintain the house and the house is used for selling drugs. But if the issue really is whether Dan maintains the house “for the purpose” of selling drugs, he hasn’t violated the statute.

  1. Did the defendant maintain the property for selling drugs?

The Miller opinion focuses mainly on whether there was sufficient evidence that the defendant maintained a dwelling used for keeping drugs, which is understandable given that the case was remanded based on Rogers, which also focused on keeping. But could the evidence have been sufficient to convict the defendant of maintaining a dwelling used for selling drugs? Before Rogers, a single sale generally wasn’t viewed as sufficient. However, in footnote 3 of Rogers, the court stated that “if a defendant used a car to transport illegal drugs to, for instance, a drug sale, that fact might well be evidence that he was ‘us[ing]’ the car ‘for the . . . selling of’ controlled substances.” Similarly, wouldn’t the fact that a defendant used a residence to transact a drug sale be evidence that he was using the property for the selling of drugs? I don’t see any procedural impediment to making that argument. The indictment, included in the record on appeal, alleged that the property was used for “keeping and selling” controlled substances, and both keeping and selling were referenced in the jury instructions and on the verdict sheet.

As always, I’m interested in others’ thoughts and insights.