In keeping with my recent work in the Chapter 90 realm, here is another issue, presented in pop quiz form. Without peeking at the statutes:
Tag Archives: possession
This session, the General Assembly made some changes to the statute governing the fingerprinting of criminal defendants. Inside and outside the School of Government, people are divided about whether the statute now requires officers to arrest, rather than cite, individuals for misdemeanor marijuana possession offenses. Continue reading →
The last batch of opinions from the court of appeals included a really interesting constructive possession case.The facts of State v. Slaughter, __ N.C. App. __ (2011), are as follows. Officers executed a search warrant at a mobile home. The defendant did not live in the home but was present at the time of the search. When the police entered the residence, they found the defendant and two other men in a bedroom. In the bedroom and an adjoining bathroom, the officers found “three handguns, digital scales, a lockbox, a box of plastic Ziploc-style bags, a large Ziploc-style bag containing marijuana packed in smaller bags, blunt wraps, a grinder, a cigar tube, ‘some tore up parts of a cigar that ha[d] been used to roll a marijuana cigarette,’ a knife, a ledger, $7,000.00 in cash in the bathroom sink, $7,182.00 in cash from elsewhere in the bathroom, and $24,500.00 in a white bag in the bedroom.”
The defendant was charged with various drug-related offenses and was convicted of PWISD marijuana and possession of drug paraphernalia. On appeal, the defendant argued that there was insufficient evidence to support the convictions, because there was insufficient evidence that he constructively possessed the marijuana and the paraphernalia. The majority began by acknowledging that the “defendant did not have exclusive control over the place where the contraband was found. In addition, there was no evidence that he owned any other items found in proximity to the contraband, that he was the only person who could have placed the contraband in the positions where it was found, that he acted nervously in front of law enforcement personnel, that he resided in or regularly visited the premises where the contraband was found, or that he possessed a large amount of cash on his person.” Nonetheless, because he “was in a [small] room surrounded by bags of marijuana, marijuana residue, stacks of cash, bags of cash, handguns, blunts, rolling papers, a grinder, and packaging paraphernalia such as plastic baggies and scales,” the majority sustained the conviction. It determined that the state’s evidence of “proximity to and knowledge of the contraband” was sufficient to establish constructive possession under precedents such as State v. Miller, 363 N.C. 96 (2009).
The dissenting judge viewed the evidence as showing nothing more than the defendant’s presence, which, under cases such as State v. James, 81 N.C. App. 91 (1986), is insufficient to establish constructive possession. The dissenter acknowledged that the defendant was likely aware of the marijuana and other items in the room, but argued that such awareness, absent other evidence, does not show any intention or ability to control the contraband, which is a requirement of possession.
Given the split decision in the state’s favor, this case seems certain to be reviewed by our supreme court. So I’ll refrain from commenting on it extensively, and instead will pose a question in the hopes of eliciting readers’ thoughts: are vehicle cases such as Maryland v. Pringle, 540 U.S. 366 (2003) (officers who found drugs and cash in a car had probable cause to arrest all occupants; it was “an entirely reasonable inference . . . that any or all . . . of the occupants had knowledge of, and exercised dominion and control over” the drugs; the fact that they were together in a small space suggested a common enterprise), apposite? Pringle wasn’t cited in either opinion, perhaps suggesting that the court of appeals thought not.
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).
Last week, the North Carolina Supreme Court decided State v. Miller, an interesting and very, very close constructive possession case. Prosecutors, defense lawyers, and judges should all be aware of it. The short version of the facts is as follows: Winston-Salem police obtained a search warrant for a house based on suspicion of drug activity. When the police entered the residence, they found a number of adults present, some in the living room, and two, including the defendant, in an adjoining bedroom, the door to which was open. The defendant was sitting on a corner of the bed, while another male was sitting in a nearby chair. The police ordered everyone to the ground, and the defendant complied.
The police found a small, white, rock-like substance in the light-colored bedclothes near where the defendant had been sitting, and a plastic bag containing more apparent crack cocaine from a corner of the room, behind the open bedroom door. The defendant’s birth certificate and state ID card were in the bedroom, though no men’s clothes, or other items that tied the defendant to the room were present. Two of the defendant’s children lived in the house with their mother. The defendant was charged with, inter alia, PWISD cocaine and being a habitual felon. It seems that the trial judge wrestled with the defendant’s motion to dismiss, but she ultimately let the case go to the jury. Despite the testimony of the defendants’ children’s mother that the defendant did not live at the house and that the cocaine was hers, the defendant was convicted.
He appealed, contending that there was insufficient evidence to support his conviction. The Court of Appeals agreed and reversed, in a 2-1 decision. The state asked the supreme court to review the case, and it reinstated the conviction by a 4-3 margin, making a total of 6 judges who thought that the state’s evidence was sufficient, and 5 who thought it wasn’t.
The opinion is a great source for the black-letter law of constructive possession, which basically requires (1) that the defendant have exclusive control over the area where the item in question is found, or (2) that the defendant have shared control over the area, and that other incriminating circumstances show that the item belongs to the defendant. In Miller, the defendant clearly didn’t have exclusive control over the bedroom, so the issue was whether there were other incriminating circumstances sufficient to show possession. The majority cites several cases in which sufficient evidence of constructive possession was found, and concludes that the defendant’s physical proximity to the cocaine and the presence of his identification documents in the room constituted adequate “incriminating circumstances.” That’s a really useful holding for prosecutors, who must have lots of cases where the defendant is in a car or a residence, suspiciously near drugs, but with relatively limited additional proof of possession.
On the other hand, Justice Brady’s dissent is useful for defense lawyers. He characterizes the law of possession as a “morass of confusion and inconsistency,” argues that the defendant’s proximity to the drugs was not alone enough, and contends that the presence of the defendant’s identification documents was not an incriminating circumstance at all. He collects several cases that defense lawyers will find favorable, and concludes rather dramatically by asserting that the majority’s ruling gives “the State free reign to prosecute anyone who happens to be at the wrong place at the wrong time.” The value of a dissent is always limited by, well, the fact that it’s a dissent, but this one both contains useful citations and suggests a line of argument that may have some traction. We’ll soon see, since there’s never a shortage of drug cases on the appellate dockets.