NC Supreme Court Broadens Coverage of “Maintaining a Dwelling”

G.S. 90-108(a)(7) makes it a crime to maintain a store, dwelling, vehicle, boat, or other place for the use, storage, or sale of controlled substances. My NC Crimes book states the elements of the offense:

A person guilty of this offense

(1) knowingly

(2) keeps or maintains

(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

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

My Crimes book further explains:

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 (1994)).

The North Carolina Supreme Court’s recent decision in State v. Rogers, ___ N.C. ___ 817 S.E.2d 150 (Aug. 17, 2018), disavows that language from Mitchell and broadens the coverage of this offense. Here’s what happened in there:

A Detective learned that the defendant, who had outstanding warrants, was implicated in drug activity. Having also learned that the defendant would be driving a white Cadillac and staying in Room 129 of a specific Econo Lodge hotel, the Detective began the process of getting a search warrant for the hotel room and vehicle. Meanwhile, a Lieutenant who had arranged for surveillance at the hotel, saw the defendant arrive alone in the Cadillac, park in front of Room 129, and enter the room. After about 45 minutes, the defendant left in the Cadillac. Other officers then stopped the defendant, arrested him on the outstanding warrants, and brought him and the Cadillac back to the hotel, where the search warrant was executed. All told, the surveillance lasted about 90 minutes. In the vehicle, officers found two purple plastic bags containing crack cocaine hidden in a gas-cap compartment that was accessible only by operating a switch inside the car. In the car they found a marijuana cigarette, $243 in cash hidden in a boot, and a service receipt dated 2½ months earlier and containing the defendant’s name. In the hotel room, they found two purple plastic bags containing crack cocaine hidden in the bathroom. The bags matched those found in the vehicle. In the room officers also found a digital scale disguised as a MP3 player and a number of small Ziploc bags, commonly used to package drugs for sale. While in custody, the defendant’s cell phone received calls and texts. A contact named “Surf City Lick” called and sent text messages; a contact named “Mexican Friend Lick” also called. At trial the Detective testified that “lick” is slang for a drug purchaser and that some of the text messages could be consistent with a customer asking about a drug delivery.

The defendant was charged and convicted of drug crimes, including maintaining a vehicle. A divided panel of the Court of Appeals reversed, holding that the evidence was insufficient to establish that the defendant kept the car under either Elements (2) or (4)(b). The State appealed and the Supreme Court reversed.

The Court began by holding that as used in Element (2), the term “keeps” “refers to possessing something for at least a short period of time—or intending to retain possession of something in the future—for a certain use.” And on this element, the evidence was sufficient: During the 90-minute surveillance, the defendant was the only person seen using the car and the service receipt dated 2½ months earlier contained his name. This evidence, the court reasoned, supported a conclusion that the defendant possessed the car for at least 2½ months.

The court then turned to the second issue: whether there was sufficient evidence that the defendant used the Cadillac for the keeping of controlled substances within the meaning of Element (4)(b). It noted that ordinarily, words used in one place in a statute have the same meaning elsewhere in the statute. However, it continued, “there are exceptions to that rule, and this is one.” It explained:

By making it a crime to “keep” a car “which is used for the keeping” of controlled substances, [the statute] uses the word “keep” and its variant “keeping” to mean different things. We have already noted that in the first instance, the word “keep” refers to possessing something for at least a short period of time, or to possessing something currently and intending to retain possession of it in the future, for some designated purpose or use. In the second instance, however, the word “keeping” is used to refer to keeping drugs in (in this case) a car. When someone “keep[s]” an object in his car, that word does not refer to possessing something for a designated use; it refers to storing that object in his car. That is the “common and ordinary meaning” of the word “keeping” in this context. There is no reason to interpret the use of the word “keeping” in [the statute] differently, and, in fact, no other interpretation would make sense. So when [the statute] speaks of “the keeping … of” drugs, it is referring to the storing of drugs. (citation omitted).

Applying that definition, the court held that the evidence was sufficient on this element. It noted that the cocaine was found in the gas-cap compartment and that no one else was seen using the vehicle. Because neither the defendant nor anyone else accessed the gas-cap compartment, it can be inferred that the cocaine was placed there before the surveillance began. The defendant’s actions—arriving at the hotel, remaining for 45 minutes with the drugs in the compartment, and then leaving in the vehicle—indicate that he was not using the car only to transport drugs. Also, a person who wants to store contraband will prefer to do so in a hidden place, “which is exactly what putting the cocaine in the gas-cap compartment would accomplish.” The court further noted that putting the drugs in a place that is hard to access suggests storage rather than mere transportation. This evidence, the court concluded, indicates that the defendant was using the Cadillac to store cocaine. Moreover, evidence suggesting that the defendant was selling drugs also supports an inference that the defendant was using the vehicle to store cocaine. In this respect the court noted the cash hidden in the boot, the calls and messages to the phone, the fact that the drugs in the car and hotel were stored in similar bags, and the smaller Ziploc bags and the disguised digital scale found in the hotel room. These circumstances, the court concluded, indicate that the defendant used the hotel room to divide large amounts of cocaine into smaller portions that were then stored in the vehicle until sold.

Although approving of Mitchell’s holding, the court disapproved of its statement that “the keeping … of [drugs]” means “not just possession, but possession that occurs over a duration of time.” It explained:

[T]he statutory text does not require that drugs be kept for “a duration of time.” As we have seen, the linchpin of the inquiry . . . is whether the defendant was using th[e] vehicle, building, or other place for the storing of drugs. So, for instance, when the evidence indicates that a defendant has possessed a car for at least a short period of time, but that he had just begun storing drugs inside his car at the time of his arrest, that defendant has still violated [the statute]—even if, arguably, he has not stored the drugs for any appreciable “duration of time.” The 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. As a result, we reject any notion that [the statute] requires that a car kept or maintained by a defendant be used to store drugs for a certain minimum period of time—or that evidence of drugs must be found in the vehicle, building, or other place on more than one occasion—for a defendant to have violated [the statute]. But again, merely having drugs in a car (or other place) is not enough to justify a conviction . . . . The evidence and all reasonable inferences drawn from the evidence must indicate, based “on the totality of the circumstances,” that the drugs are also being stored there. To the extent that Mitchell’s “duration of time” requirement conflicts with the text of [the statute], therefore, this aspect of Mitchell is disavowed. (citation omitted).

In this way, the court broadened the statute’s coverage. I’m working on the 2018 Crimes Supplement and I’ll note this issue there.