North Carolina Criminal Law NC Criminal Law

When a person is arrested while in possession of drugs and is taken to the jail in handcuffs, may the person properly be convicted of possessing drugs in a confinement facility? The question has divided courts across the country. Last week, a majority of the court of appeals concluded that the answer is yes. State v. Barnes, __ N.C. App. __ (2013) (Ervin, J.) (McGee, J., dissenting).

Facts. The defendant was arrested for DWI, and while he was being processed at the jail, a bag containing 4.05 grams of marijuana fell out of his pants. He was eventually convicted of, inter alia, possession of marijuana at a confinement facility in violation of G.S. 90-95(e)(9).

Mens rea issue. The court first addressed the defendant’s argument that there was insufficient evidence to convict him, as there was no evidence that he intended to bring the drugs to a confinement facility. The court of appeals disagreed, unanimously on this issue, ruling that the offense is a general intent crime, requiring only that the defendant knowingly possessed drugs at a confinement facility, which he did.

Voluntariness issue. The issue that divided the court was the defendant’s argument that he did not commit the offense voluntarily, as he was brought to the jail under arrest. Although agreeing that criminal liability generally requires a voluntary act, the majority nonetheless rejected the claim. It noted that the statutory language defining the offense says nothing about voluntariness, and that the apparent purpose of the statute – to minimize drugs in jails – would be best served by giving it broad application. But the heart of the opinion stated that a majority of other jurisdictions (7 out of 10 cited in the opinion) have upheld convictions for similar crimes under similar circumstances, and endorsed the reasoning of many of those courts that “a defendant who is arrested with controlled substances in his possession has options other than simply taking the controlled substances with him into the confinement facility. For example, the defendant always has an opportunity to disclose the existence of these controlled substances to the arresting officer before he ever reaches the jail.”

Dissent. Judge McGee dissented on the voluntariness issue, reasoning that “[t]he officer took Defendant to the confinement facility. Defendant had no ability to choose his own course of action regarding his location,” and so did not voluntarily possess the drugs at the jail. As to the majority’s suggestion that the defendant had the option of disclosing the presence of the drugs before reaching the jail, Judge McGee concluded that requiring the defendant to do so would violate his Fifth Amendment privilege against self-incrimination. (The majority stated in a footnote that the defendant did not raise the Fifth Amendment issue but that, in any event, the dilemma was of the defendant’s own making and did not involve testimony under coercion.)

Further review. I couldn’t find any indication on the supreme court’s electronic docket that the defendant is seeking further review based on the dissent, but that would be a natural next step. So, stay tuned for further developments.

Side issue regarding conviction for simple possession. It’s worth mentioning briefly that the defendant argued, the State conceded, and the court of appeals ruled that the defendant should not have been convicted of both the confinement facility offense and the lesser-included offense of simple possession.