In response to the opioid crisis, North Carolina passed several protections designed to alleviate some of the legal liability surrounding drug use in the interest of harm reduction and public health. One of those protections authorized needle exchange programs (alternatively known as safe syringes programs). G.S. 90-113.27. A recent study examined how the needle exchange program is working in seven North Carolina counties and found that the law was not consistently applied. Brandon Morrison et al., “They Don’t Go by the Law Around Here”: Law Enforcement Interactions After the Legalization of Syringe Services Programs in North Carolina, vol. 19, Harm Reduction Journal, 106 (Sept. 27, 2022). Considering the study’s findings, I thought a refresher on the immunity provisions for syringe exchanges and similar protections would be timely. Read on for the details. Continue reading
Tag Archives: drug offenses
A Refresher on North Carolina’s Needle Exchange Law and Other Harm Reduction Immunities
Back in 2017, I wrote about murder charges premised on the unlawful distribution of drugs and what the State must prove to establish a defendant’s guilt. One element the State must prove is malice.
This legislative session the General Assembly created two new crimes penalizing the distribution of certain drugs resulting in a person’s death: death by distribution and aggravated death by distribution. S.L. 2019-83 (H 474). A distinguishing feature of the new crimes is that they require no proof of malice. Continue reading →
North Carolina Supreme Court Upholds a Magistrate’s Finding of Probable Cause to Issue Search Warrant to Search Home for Drugs
On December 21, 2016, the North Carolina Supreme Court in State v. Allman upheld a magistrate’s finding of probable cause to search a home for drugs, and it reversed a contrary ruling in this case by the North Carolina Court of Appeals. The Allman ruling is the subject of this post. Continue reading →
Earlier this week, United States Attorney General Eric Holder, speaking to American Bar Association, announced a policy change in how drug cases will be charged in federal court. This post summarizes Mr. Holder’s speech, the policy change it announced, and its likely impact in federal court. It then considers whether the new policy will have spillover effects in state court.
The Speech. Mr. Holder’s speech is available in full here. He said that it is “past time . . . to address . . . unwarranted disparities” in the criminal justice system. He declared the system “broken” and not “sustainable,” with an “unnecessarily large prison population,” citing relevant statistics. He stated that “too many Americans go to too many prisons for far too long . . . for no truly good law enforcement reason.” He observed that “young black and Latino men are disproportionately likely to become involved in our criminal justice system – as victims as well as perpetrators,” and referred to a study that concluded that “people of color often face harsher punishments than their peers.” Turning to solutions to the problems he perceived, he indicated that it was time for “rethinking the notion of mandatory minimum sentences for drug-related crimes” because they “generate unfairly long sentences.” Specifically, he “mandated a modification of the Justice Department’s charging policies so that certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels will no longer be charged with offenses that impose draconian mandatory minimum sentences.” In all, it was a rather high-sounding speech that sounded like it marked a major shift.
The Policy. The policy changed announced in the speech was implemented by a memorandum to federal prosecutors. The memorandum is available in full here. Federal drug defendants are subject to mandatory minimum sentences if their crimes involved certain threshold quantities of drugs. See generally 21 U.S.C. § 841. For example, a defendant who sells more than 500 grams of cocaine faces a mandatory minimum sentence of five years, while one who sells more than five kilograms of cocaine faces a mandatory minimum of ten years. But those minimums apply only if the threshold quantities are alleged in the indictment. Under the new policy, drug quantity allegations will be omitted from a defendant’s indictment, and the defendant will not be subject to a mandatory minimum sentence regardless of drug quantity, if all of the following obtain:
- The offense did not involve violence, a weapon, serious injury, or a minor
- The defendant did not supervise or manage others in the commission of the offense
- The defendant has no “significant ties to large-scale drug trafficking organizations”
- The defendant has no “significant” criminal history, which “usually” will mean that the defendant has three or fewer criminal history points under the federal sentencing guidelines
Impact of the Policy. Despite the Attorney General’s powerful rhetoric, this strikes me as a rather minor change, for several reasons. First, many federal prosecutors were already using their discretion to omit drug quantities from indictments in less serious cases. Second, relatively few cases may meet all four criteria. In particular, federal prosecutors tend to focus on defendants who have significant criminal records or who play leadership roles in drug trafficking organizations. And third, the federal sentencing guidelines – which are advisory, but still widely followed by district judges in sentencing – were constructed around the mandatory minimums, so within-guideline sentences will often be at or above the mandatory minimum sentence that would have applied. I don’t want to wander too far into the weeds of federal sentencing. Interested readers can find a more detailed analysis along these lines here at the Volokh Conspiracy and in the comments to this post at Sentencing Law and Policy. All of that being said, some defendants will benefit from the new policy.
Spillover in State Court? One possible effect of the policy change is an increase in case volume in state court. Mr. Holder noted in his speech that United States Attorneys “cannot – and should not – bring every case or charge every defendant who stands accused of violating federal law,” because “[s]ome issues are best handled at the state or local level.” It may be that his new policy on drug cases will lead federal prosecutors to decline to prosecute some drug cases altogether, which would mean that more of those cases would end up in, or remain in, state court – perhaps including some cases involving large quantities of drugs. A second possible effect of the policy change would be indirect: some state actors could be inspired to mimic some of the federal changes at the state level, by ameliorating drug trafficking sentences. I doubt that this will happen in a systematic way in the near term. The General Assembly made significant changes to the law of sentencing in the Justice Reinvestment Act, but left trafficking alone. And Attorney General Cooper doesn’t supervise the district attorneys in the way the Attorney General Holder supervises the United States Attorneys, so there is no mechanism for top-down administrative change. But individual offices, and individual prosecutors, have virtually complete discretion in handling drug cases, and the broader movement to reform the criminal justice system of which Mr. Holder’s speech was a part may manifest itself at the local level in uneven and unpredictable ways. For those interested in the details of how that could happen, Jamie plans to post tomorrow about ways to dial down trafficking sentences under state law.
Maintaining a Dwelling — Part II
The crime of maintaining a dwelling has four elements. To be guilty, a person must:
(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 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”).
Maintaining a Dwelling
The crime of Maintaining a Store, Dwelling, Vehicle, Boat, or Other Place for Use, Storage, or Sale of Controlled Substances is a common one. In fact, AOC statistics show that this offense was charged over 14,000 times statewide in 2010. At trial, this crime presents a couple of complicated issues. One is: how does the State prove that the defendant “kept or maintained” the relevant property for the prohibited purposes?
In determining whether a person keeps or maintains property, the courts have considered the following factors:
- that the defendant had title to or owned the property, State v. Spencer, 192 N.C. App. 143, 148 (2008); State v. Bowens, 140 N.C. App. 217, 221 (2000); State v. Allen, 102 N.C. App. 598, 608-09 (1991);
- that the defendant paid taxes on the property, Spencer, 192 N.C. App. at 148; Bowens, 140 N.C. App. at 221;
- that the defendant paid for repairs to or maintenance of the property, Spencer, 192 N.C. App. at 148; State v. Frazier, 142 N.C. App. 361, 365 (2001); Bowens, 140 N.C. App. at 221;
- that the defendant paid rent on the property; Spencer, 192 N.C. App. at 148; State v. Hart, 179 N.C. App. 30, 41-42 (2006); Frazier, 142 N.C. App. at 366; Bowens, 140 N.C. App. at 221; State v. Alston, 91 N.C. App. 707, 711 (1988);
- that the defendant paid the property’s utility bills or contributed to expenses associated with the property, State v. Fuller, 196 N.C. App 412, 424 (2009); Spencer, 192 N.C. App. at 148; State v. Moore, 188 N.C. App. 416, 424 (2008); Hart, 179 N.C. App. at 42; Frazier, 142 N.C. App. at 365; Bowens, 140 N.C. App. at 221; Allen, 102 N.C. App. at 609;
- that the defendant resided at the property, Moore, 188 N.C. App. at 424; State v. Baldwin, 161 N.C. App. 382, 393 (2003);
- that the defendant occupied the property, Spencer, 192 N.C. App. at 148; Frazier, 142 N.C. App. at 365; State v. Shine, 173 N.C. App. 699, 704 (2005); Bowens, 140 N.C. App. at 221;
- that the defendant possessed the property over a duration of time, Frazier, 142 N.C. App. at 365; and
- that the defendant had a key to the property, Frazier, 142 N.C.App. at 365; State v. Alston, 91 N.C. App. 707, 711 (1988).
Although occupancy is a relevant factor, evidence of occupancy alone is insufficient evidence to establish that the defendant kept or maintained the property. State v. Cowan, 194 N.C. App. 330, 337 (2008); Spencer, 192 N.C. App. at 148. However, evidence of residency standing alone is sufficient evidence. Cowan, 194 N.C. App. at 337 (evidence sufficient when the defendant told police that he resided at the premises); Spencer, 192 NC App. at 148 (same).
When determining whether the evidence is sufficient on this element, courts look to the totality of the circumstances. Fuller, 196 N.C. App. at 424; Hart, 179 N.C. App. at 41. Thus, cases arise in which the evidence is insufficient, even if one or more of the above-listed factors are present. See State v. Fuller, 196 N.C. App 412, 424-45 (2009) (the evidence was insufficient when the defendant discussed with the mobile home’s actual tenant, taking over the rent payments, but never reached an agreement to do so, a car similar to the defendant’s was regularly parked outside the trailer even after the tenant vacated, and defendant’s shoes and personal papers were found in the mobile home; there was no evidence that the defendant paid rent, utilities, or for repairs, made any repairs, or otherwise took responsibility for the mobile home; at most the evidence suggested that defendant occupied the mobile home trailer for approximately two months); State v. Toney, 187 N.C. App. 465, 471 (2007) (the evidence was insufficient when although the defendant occupied the hotel room one night and was present during the search, there was no evidence that he paid for the room or was a registered guest); State v. Carter, 184 N.C. App. 706, 710 (2007) (the defendant was the sole occupant of the residence when the search was conducted, three photographs found in a bedroom showed him in various places in the house, and the defendant’s identification and other papers were found there but none listed the residence as his home address; there was no evidence that the defendant owned the property or took any responsibility for it, and, in fact, a utility bill was found in the defendant’s brother’s name); State v. Harris, 157 N.C. App. 647, 651-53 (2003) (the evidence was insufficient when the defendant was seen at the house several times and some of his personal property was found in a bedroom; none of his papers listed the house as his address); State v. Kraus, 147 N.C. App. 766, 768-69 (2001) (the evidence was insufficient when it showed that the defendant had access to a key, spent the previous night in the motel room, and was present when the contraband was found; there was no evidence that she paid for or maintained the motel room and she had occupied it for less than 24 hours when law enforcement officers arrived); State v. Hamilton, 145 N.C. App. 152, 154 (2001) (the evidence was insufficient when the defendant visited an apartment leased to his girlfriend and regularly used her vehicles parked there); State v. Bowens, 140 N.C. App. 217, 221-22 (2000) (the evidence was insufficient when the defendant was seen in and out of the dwelling 8-to-10 times over 2-to-3 days, nobody else was seen entering the premises during this period of time, and men’s clothing was found in a closet in the dwelling; there was no evidence that the defendant owned or leased the dwelling or that he had any responsibility for the payment of the utilities or the general upkeep; furthermore, although men’s clothing was found in the dwelling, there was no evidence that the clothes belonged to the defendant).
Constructive Possession of Drugs
One of the most frequently litigated issues in North Carolina drug cases is constructive possession. Jeff wrote about one case (here) over a year ago. My research shows no less than eleven published cases in the last two years (click here for a full case listing in my online Criminal Case compendium), including one earlier this month by the North Carolina Court of Appeals in State v. Terry. Because the issue arises with such frequency, I’ll take this opportunity to set out the relevant law.
Possession may be actual or constructive. A defendant has actual possession of contraband if it is on his or her person, the defendant is aware of its presence, and either alone or with others has the power and intent to control its disposition or use. State v. Loftis, 185 N.C. App. 190 (2007); State v. Reid, 151 N.C. App. 420 (2002).
Constructive possession exists when the defendant, while not having actual possession, has the intent and capability to maintain control and dominion over the contraband. State v. Miller, 363 N.C. 96 (2009); State v. Matias, 354 N.C. 549 (2001). The defendant may have the power to control either alone or jointly with others. Miller, 363 N.C. 96. When a defendant has exclusive possession of the place where or item in which the contraband is found, such as a home or a vehicle, this ordinarily is sufficient to establish the requisite intent and capability to maintain control and dominion over the contraband required for constructive possession. State v. Butler, 356 N.C. 141 (2002); Matias, 354 N.C. 549. Thus, if drugs are found in a closet in the defendant’s home and the defendant is the sole resident of the home, this will constitute sufficient evidence of constructive possession to take the issue to the jury.
Many times, however, contraband is found in a place over which the defendant does not have exclusive possession. For example, drugs may be found in a vehicle driven by one person and carrying several others as passengers. To establish constructive possession, it is not necessary to show that a defendant has exclusive control of the premises. State v. McLaurin, 320 N.C. 143 (1987). However, when the defendant does not have exclusive possession of the place where or item in which the contraband is found, the State must show other incriminating circumstances to establish sufficient evidence of constructive possession. Miller, 363 N.C. 96 (other incriminating circumstances shown); McLaurin, 320 N.C. 143 (insufficient evidence of constructive possession when drug paraphernalia was found in a house over which the defendant had non-exclusive possession and the State offered no incriminating evidence linking her to the paraphernalia).
The determination of whether sufficient incriminating circumstances exist to support a finding of constructive possession is fact-specific, Miller, 363 N.C. 96; the courts consider the totality of the circumstances and no one factor controls. State v. McBride, 173 N.C. App. 101 (2005). Among the factors considered by the courts are:
- The defendant’s proximity or lack thereof to the contraband. Compare Miller, 363 N.C. 96 (evidence was sufficient to establish constructive possession when, among other things, cocaine was found within the defendant’s reach), with State v. Autry, 101 N.C. App. 245 (1991) (evidence was insufficient when the defendant was found upstairs in a small hallway or landing in the premises; the drugs were found in an upstairs bedroom, with two other people present and the evidence did not place defendant in same room with the cocaine). However, mere presence at a location where drugs are found does not create an inference of constructive possession. State v. Minor, 290 N.C. 68 (1976) (“The most the State has shown is that defendant had been in an area where he could have committed the crimes charged. Beyond that we must sail in a sea of conjecture and surmise. This we are not permitted to do.”); State v. Ferguson, __ N.C. App. __, 694 S.E.2d 470 (2010) (mere presence is insufficient); Autry, 101 N.C. App. 245 (same).
- Whether or not the defendant owned or occupied the location where or had control of the item in which the contraband was found. Compare State v. Fortney, __ N.C. App. __, 687 S.E.2d 518 (2010) (evidence was sufficient with respect to drugs found in a motorcycle carry bag when, among other things, the defendant borrowed the motorcycle from the owner and was driving it), with State v. Finney, 290 N.C. 755 (1976) (evidence was insufficient when, among other things, although the defendant leased an apartment where marijuana was found, the defendant had not been in the apartment for forty-four days and there was evidence that he had sublet it to another person who was living there and that person admitted sole possession of the marijuana).
- The defendant’s opportunity or lack thereof to dispose of or place the contraband in the location where it was found. Compare Butler, 356 N.C. 141 (evidence was sufficient when, among other things, a cab driver testified that the defendant was the only person who had been in a position to place a package containing drugs under the drivers’ seat), with State v. Biber, __ N.C. App. __, 698 S.E. 2d 476 (2010) (evidence was insufficient when, among other things, there was no evidence that the defendant was ever in a position to secrete the contraband in a motel bathroom light fixture).
- Whether or not the defendant’s personal items were found at the location where the contraband was located. Compare Miller, 363 N.C. 96 (evidence was sufficient when, among other things, the defendant’s birth certificate and state-issued identification card were found in the bedroom where cocaine was discovered), with State v. Moore, 162 N.C. App. 268 (2007) (evidence was insufficient when, among other things, five individuals, including the defendant, were found in or near a mobile home containing drugs; the home was owned by someone else and officers did not find any documents or other items tying the defendant to the residence).
- Whether or not the defendant fled or engaged in other suspicious behavior. Compare State v. Hudson, __ N.C. App. __, 696 S.E.2d 577 (2010) (evidence was sufficient when, among other things, the defendant acted suspiciously when his truck was stopped by an officer; he exited with his back to the officer and hands up, unusual activity under the circumstances; his hand shook when he handed over his information; he was sweating despite cold weather; and an officer could see his carotid artery pulsing), with Ferguson, __ N.C. App. __, 694 S.E.2d 470 (evidence was insufficient when, among other things, it did not show that the defendant behaved suspiciously).
- Whether or not the defendant engaged in drug activity or was impaired by drugs. Compare McBride, 173 N.C. App. 101 (evidence was sufficient when, among other things, officers, who were responding to a call about drug activity, approached the motel in question and observed what appeared to be a drug transaction between defendant and another person; the transaction occurred outside of the motel room in question; the defendant smelled of crack cocaine and had the characteristics of someone under the influence of the drug), with State v. Balsom, 17 N.C. App. 655 (1973) (evidence was insufficient when, among other things, there was no evidence that the defendants were under the influence or users of narcotics).
You Don’t Know What You Have Until It’s Seized
“You don’t know what you have until it’s gone” is classic relationship advice. But is “I didn’t know what I had until it was seized” a classic defense to drug charges?
Consider the facts of State v. Hall. An officer stopped the defendant’s car for a traffic violation. The traffic stop led to a search of the car, which led to the discovery of two green pills that the officer suspected contained ecstasy. The SBI determined that they contained both ecstasy and ketamine, and the defendant was charged with, and convicted of, possession of both controlled substances. Apparently, neither the officer nor the prosecutor contended that the defendant knew the pills contained ketamine. As the prosecutor put it, “I believe she knew she had a controlled substance, not the identity of the controlled substance.”
Whether the defendant could be convicted of possessing ketamine without knowing that she possessed ketamine wasn’t the precise issue on appeal in Hall — but could she? As the Hall court noted, to sustain a conviction for possession of a controlled substance, the state must prove that the defendant “knowingly” possessed such a substance. Standing alone, this language at least suggests the viability of an “I didn’t know what I had” defense. But courts in North Carolina and elsewhere have generally required only that the defendant knew that the substance she possessed was controlled, not that she knew the exact nature of the substance. See, e.g., State v. Mendez, 42 N.C. App. 141 (1979) (holding that a defendant “would not be exonerated by virtue of a mistaken belief on his part that he was selling mescaline when, in fact, he was selling another Schedule I controlled substance, [LSD]”); United States v. De La Torre, 599 F.3d 1198 (10th Cir. 2010) (“The statute does not require the Government to prove a defendant knew the precise nature of the controlled substance he possessed, so long as he knew he did in fact possess a controlled substance.”).
The bottom line is that if a defendant didn’t know that what she had was a controlled substance at all, she’s not guilty. But if she didn’t know exactly what she had until it was seized, well, that “classic defense” isn’t a defense at all.
Mello and “Loitering for Drugs” Ordinances
Can a municipality adopt an ordinance that criminalizes loitering for the purpose of drug activity? I’ve been asked that question several times, and in fact, a number of North Carolina municipalities have such ordinances. See, e.g., Charlotte Code of Ordinances § 15-23; Hickory Code of Ordinances § 29-22(d). The answer is generally yes, though such ordinances must be drafted very carefully.
Last week, the North Carolina Court of Appeals underscored the need for careful drafting when it decided State v. Mello. Gary Mello was charged with, inter alia, violating Winston-Salem Code of Ordinances § 38-29, which is captioned “[l]oitering for purpose of engaging in drug-related activity.” The court’s opinion doesn’t describe the facts underlying the charge, so I skimmed the parties’ briefs. Generally, it appears that Mello was parked on a street in a high-drug area of Winston-Salem, engaging in what appeared to be hand-to-hand drug transactions with pedestrians.
Mello moved to dismiss the charge, arguing that the ordinance was unconstitutional. The motion was denied by the trial judge, a jury convicted Mello, and he appealed. The court of appeals agreed with Mello, finding the ordinance overbroad and vague.
The ordinance reads as follows:
It shall be unlawful for a person to remain or wander about in a public place under circumstances manifesting the purpose to engage in a violation of the North Carolina Controlled Substances Act, G.S. 90-89 et seq. Such circumstances are:
(1) Repeatedly beckoning to, stopping or attempting to stop passersby, or repeatedly attempting to engage passersby in conversation;
(2) Repeatedly stopping or attempting to stop motor vehicles;
(3) Repeatedly interfering with the free passage of other persons;
(4) Such person behaving in such a manner as to raise a reasonable suspicion that he is about to engage in or is engaged in an unlawful drug-related activity;
(5) Such person repeatedly passing to or receiving from passersby, whether on foot or in a vehicle, money or objects;
(6) Such person taking flight upon the approach or appearance of a police officer; or
(7) Such person being at a location frequented by persons who use, possess or sell drugs.
Mello’s indictment referred specifically to subsections (4) and (7) of the ordinance.
The court of appeals began its analysis by considering overbreadth, which is a First Amendment doctrine that invalidates regulations that prohibit a substantial amount of “protected” conduct, even if the regulations have some legitimate application. The court concluded that the Winston-Salem ordinance prohibits protected activity such as conducting a survey (which would violate (1) and/or (3)), handing out leaflets (which would violate (5)), and merely being present in an area where drug arrests have taken place (which would violate (7)).
Nor, according to the court, was the ordinance saved by the inclusion of the language, “under circumstances manifesting the purpose to engage in [a drug offense],” because under the ordinance, the listed circumstances by definition manifest the necessary intent. So here’s the first draftsmanship point: had the intent requirement said “the circumstances that may be considered in determining a person’s intent include the following” instead of “[s]uch circumstances are,” I suspect that the overbreadth analysis would have come out differently. Cf., e.g., State v. Evans, 73 N.C. App. 214 (1985) (upholding a loitering for prostitution ordinance that required the state to demonstrate that the defendant’s purpose was to violate the prostitution laws).
Next, the court considered whether the ordinance was void for vagueness. A law is unconstitutionally vague when citizens are left to guess and to speculate as to whether they are violating the law. The court concluded that subsection (4) of the ordinance is vague, because a citizen can’t be reasonably sure what conduct “raise[s] a reasonable suspicion that he is about to engage in or is engaged in an unlawful drug-related activity.” Here’s the second draftsmanship point: the court was particularly critical of the inclusion of the term “reasonable suspicion” in the ordinance, insofar as it could be read to allow a defendant to be convicted on proof less than beyond a reasonable doubt. Absent that red flag, I’m not sure that the court would have ruled the same way; courts have long recognized that a person’s intent usually must be inferred from the circumstances, and that the relevant circumstances defy easy categorization.
Mello has received some national attention, and is a must read for lawyers and judges who regularly handle cases arising under this type of ordinance. Obviously, it should also catch the eye of municipal attorneys in jurisdictions that have, or may adopt, this type of ordinance. I should note, too, that we at the School of Government are happy to consult with jurisdictions that are considering adopting or revising ordinances like this.
I See Cocaine
Can a lay witness testify that she could tell just by looking at a substance that it was, in fact, a controlled substance? (Let’s assume the witness has extensive dealings with drugs and therefore a basis of personal knowledge, and leave aside the credibility issues that may arise if she has been an enthusiastic consumer of said drugs.) The answer may depend not only on what drug is involved, but also on what form the drug takes. In the context of a cocaine case, powder and crack may not be treated equally.
This issue was addressed recently in State v. Llamas-Hernandez, 363 N.C. 8, 673 S.E.2d 658 (2009), reversing for reasons stated in dissenting opinion, 189 N.C. App. 640, 659 S.E.2d 79 (2008). The facts, in brief, were that police detectives found 55 grams of a white, powdery substance in a closet in the defendant’s home. The substance was submitted to the lab for chemical analysis, but the lab report was excluded as a discovery sanction. At trial, over the defendant’s objection, the judge allowed two detectives to give lay witness opinion testimony that the white powder was cocaine. The detectives’ opinions were based on looking at the powder; they did not do any preliminary tests on it and they offered no testimony regarding its taste, texture, or any distinguishing characteristics.
A majority of the Court of Appeals found no abuse of discretion, but made it clear that they were not comfortable with their own holding. “It seems to us that to allow a lay witness, even a police officer with extensive training and experience, to render an opinion that white powder is cocaine based solely upon the witness’s visual examination, is little more than speculation, and is not based on perception, for the visual characteristics of cocaine in powder form are not unique to that substance alone.” 659 S.E.2d at 83, citing, Michael D. Blanchard & Gabriel J. Chin, Identifying the Enemy in the War on Drugs: A Critique of the Developing Rule Permitting Visual Identification of Indescript White Powder in Narcotics Prosecutions, 47 Am. U.L.Rev. 557 (1998).
In spite of their concerns, the majority believed they were bound by the opinion of a prior panel in State v. Freeman, 185 N.C. App. 408, 648 S.E.2d 876 (2007), appeal dismissed, 362 N.C. 178, 657 S.E.2d 663 (2008), reconsideration denied, 362 N.C. 178, 657 S.E.2d 666 (2008). In Freeman, a police officer found a pill bottle the defendant had dropped containing a variety of white pills. The officer testified as a lay witness that he could tell two of the pills were crack cocaine by looking at them by virtue of his training and experience in the narcotics field. The Court of Appeals found no merit in the defendant’s argument that the officer should not have been allowed to offer such an opinion.
Before focusing on the dissenting opinion in Llamas-Hernandez, which is now the law in these parts, I will note three differences that jump out between Freeman and Llamas-Hernandez. First, technically, the Freeman Court was reviewing for plain error because the defendant did not object to the officer’s testimony that the pills were crack. This difference is arguably not noteworthy because the Freeman Court went out of its way to say that in any event, they saw no abuse of discretion in allowing the testimony to come in. Second, in Freeman, a chemist testified as an expert that she analyzed the pills and determined they were crack cocaine. Recall that in Llamas-Hernandez, the lab report did not come in; the State’s ability to prove the powder was a controlled substance hinged on the lay witness testimony. Third, Freeman was a crack case while Llamas-Hernandez was a powder one, a distinction that carried weight with the dissenting judge.
Judge Steelman’s dissent in Llamas-Hernandez is where the buck stops, as the North Carolina Supreme Court reversed the decision of the Court of Appeals per curiam and without an opinion for reasons stated in the dissenting opinion. Steelman advances three main points in support of his position that a lay witness cannot offer testimony that a powder is cocaine based on a visual examination.
1) The North Carolina Controlled Substances Act lays out in great technical detail the chemical makeup of controlled substances, so clearly the General Assembly intended that expert testimony be required to prove that a substance is an unlawful drug.
2) We have a long history of submitting substances to labs for testing and statutory procedures for the admissibility of such lab reports, so clearly visual examination does not suffice.
3) Freeman isn’t supported by precedent and in any event, it involved crack rather than powder.
The majority in Llamas-Hernandez finds no support in the law for Steelman’s distinction between powder and crack. For Steelman, however, the form of the cocaine is significant enough that the Freeman crack case is not binding authority on the Llamas-Hernandez powder case: “Crack cocaine has a distinctive color, texture, and appearance. While it might be permissible, based upon these characteristics, for another officer to render a lay opinion as to crack cocaine, it cannot be permissible to render such an opinion as to a non-descript white powder.” 659 S.E.2d at 87, Steelman, J., dissenting.
Now that Steelman’s dissent has been picked up by the Supremes, what is the current state of the law with regard to crack? Is lay opinion admissible that a substance is cocaine so long as it is in rock form? Has Freeman been left largely undisturbed but confined to its facts? One concern jumps to the forefront. As Jeff mentioned in his May 1st News Roundup, the US DOJ has taken the position that crack and powder offenses should be treated equally under federal law because punishing crack offenses more severely disproportionately affects African American people. Does drawing a distinction crack and powder when it comes to admitting lay opinion testimony result in a system where the State of North Carolina can more readily prosecute and convict black defendants than white ones? If so, is the distinction that Steelman draws a real one, making some degree of disproportionate impact is tolerable?
For my part, I have doubts about the merits of such a distinction. For one thing, returning to my summary of Steelman’s arguments, numbers 1) and 2) apply to crack cases to the same extent they do to powder ones. The chemical makeup (optical isomers, diastereoisomers, or what-have-you) of crack is no more apparent to the naked eye than that of powder; thus we have a long history of submitting rocks to the laboratory just as we do with powder. Also, I’m not sure that Steelman’s assertion that crack has a distinctive color, texture, and appearance holds up. Crack rocks have varying appearances because they are “cooked” in a variety of ways. I have read police reports describing crack rocks as white, yellow, tan, and brown. In texture, crack may be crumbly, oily, or crystalline. There is no consistency with regard to the size of the rocks. Finally, I have run across a number of counterfeit cases under G.S. 90-95 (a)(2) involving crack. A person can feasibly pass a substance off as crack on the streets, even to an experienced police officer. See State v. Williams, 164 N.C.App. 638, 596 S.E.2d 313 (2004) (undercover officers purchased what they believed to be crack cocaine, but was in fact Goody’s headache medicine). How does all of this support the notion that that we can place more confidence in a lay opinion that a substance is crack? I look forward to hearing your thoughts.
I intended to consider how or whether Llamas-Hernandez affects the ruling that an officer may offer expert testimony that a substance is marijuana. See State v. Fletcher, 92 N.C. App. 50, 373 S.E.2d 681 (1988). However, I have already exceeded polite blog length, so I will let the question dangle for now.