Opinion
No. COA04-366
Filed 15 March 2005 This case not for publication
Appeal by defendant from judgment entered 30 September 2003 by Judge Ernest B. Fullwood in New Hanover County Superior Court. Heard in the Court of Appeals 6 December 2004.
Attorney General Roy Cooper, by Assistant Attorney General William B. Crumpler, for the State. Parish Cooke, by James R. Parish, for defendant-appellant.
New Hanover County No. 03 CRS 1503.
Kenyatte Malik Price ("defendant") appeals judgment entered on a jury verdict finding him guilty of trafficking in heroin by the unlawful possession of fourteen grams or more but less than twenty-eight grams and imposing a sentence of 90 to 117 months' imprisonment in the North Carolina Department of Correction. We find no error.
The State's evidence at trial tended to show that on the night of 29 January 2003, officers from the Wilmington/New Hanover City/County Vice and Narcotics Unit (the "Narcotics Unit") executed a search warrant at 1107 South 7th Street. At the time the officers executed the search warrant, the only individuals at home were Yolanda Cobbs ("Ms. Cobbs") and her infant daughter; however, during the execution of the warrant, defendant arrived at the residence with Roland Cobbs ("Cobbs"). Defendant was romantically involved with Ms. Cobbs and spent approximately three nights a week at her house. In addition, defendant commonly brought and left clothes at Ms. Cobbs' residence and, specifically, in a large walk-in closet off of Ms. Cobbs' bedroom. Officers searched defendant and Cobbs. Defendant had nothing of note within his possession; however, Cobbs was found to possess, inter alia, five small bags of suspected heroin labeled with the words "brain damage" and a picture of a brain. Defendant and Cobbs were taken into the residence and instructed to sit with Yolanda Cobbs on the couch.
During the execution of the warrant, Detective Aaron Morrisette searched a large walk-in closet attached to Ms. Cobbs' bedroom. In the closet, Detective Morrisette noticed rice on the carpet, which attracted his attention as rice is commonly used by heroin dealers to protect the quality of the heroin from being diminished due to moisture absorption. After searching the left-hand side of the closet, Detective Morrisette searched the back wall and found a loaded revolver. Detective Morrisette continued his search by checking the remaining portion of the back wall and then searching the remaining, right wall of the closet. As he was concluding his search of the closet, Detective Morrisette opened a shoe box and found more rice and nine bricks of suspected heroin. Detective Morrisette said "Bingo" and informed Detective Sergeant David Ciamello ("Detective Ciamello") of the find. At some point after Detective Morrisette found the gun and suspected heroin, defendant stated "All that s*** is mine, yo."
At trial, defendant testified on his own behalf. Defendant stated that, when he returned to Ms. Cobbs' house, he was hand-cuffed and placed on a sofa beside Ms. Cobbs. Defendant further stated that he could not see into the walk-in closet from where he was sitting. When he heard Detective Morrisette exclaim "Bingo," he believed Detective Morrisette had found the gun in the closet and, at some point later, stated "That's mine" in reference to the gun.
Defendant was arrested and charged with maintaining a dwelling for the purpose of keeping and selling controlled substances, trafficking in heroin by possession of fourteen grams or more but less than twenty-eight grams, possession with intent to sell and deliver heroin, possession of a stolen firearm, and trafficking in heroin by manufacture. Defendant moved to suppress the evidence seized as a result of the search of Ms. Cobbs' residence on the grounds that (1) the affidavit submitted in support of the search warrant application failed to set forth facts sufficient to establish probable cause and (2) the affidavit contained false information. The trial court denied defendant's motion on both bases after a hearing. At the close of the State's evidence, the trial court granted defendant's motion to dismiss the charges of maintaining a dwelling and possession of a stolen firearm but denied defendant's motions to dismiss with respect to the remaining charges. At the close of all the evidence, defendant renewed his motions to dismiss, and the trial court granted his motion to dismiss the charge of trafficking in heroin by manufacture. The jury returned a verdict of guilty for the charge of trafficking in heroin by possession of fourteen grams or more but less than twenty-eight grams and a verdict of not guilty for the charge of possession with intent to sell and deliver heroin. The trial court entered judgment, and defendant appeals.
I. False Information
In his first assignment of error, defendant asserts the trial court erred in denying his motion to suppress evidence seized during execution of the search warrant because the supporting affidavit contained false information. North Carolina General Statutes § 15A-978 (2003) provides "[a] defendant may contest the validity of a search warrant and the admissibility of evidence obtained thereunder by contesting the truthfulness of the testimony showing probable cause for its issuance . . . by cross-examination or by offering evidence." Truthful testimony is statutorily defined as "testimony which reports in good faith the circumstances relied on to establish probable cause." Id. This Court has further instructed that truthful means "`that the information put forth is believed or appropriately accepted by the affiant as true.'" State v. Severn, 130 N.C. App. 319, 322, 502 S.E.2d 882, 884 (1998) (quoting Franks v. Delaware, 438 U.S. 154, 165, 57 L. Ed. 2d 667, 678 (1978)). Our courts have long held that merely pointing out inaccuracies in a warrant is insufficient. See Severn, 130 N.C. App. at 322, 502 S.E.2d at 884; State v. Langdon, 94 N.C. App. 354, 357, 380 S.E.2d 388, 390 (1989). A defendant "must make a preliminary showing that the affiant `knowingly, or with reckless disregard for the truth, made a false statement in the affidavit'" with evidence showing more than a mere contradiction to the assertions in the affidavit or showing the affidavit contains false statements. Severn, 130 N.C. App. at 322, 502 S.E.2d at 884. In short, the showing must demonstrate bad faith on the part of the affiant. See id.
At the hearing on defendant's motion to suppress, defendant testified, in relevant part, that he (1) did not sell heroin two days before the execution of the search warrant and (2) did not show a quantity of heroin to another individual for the purpose of selling it three days before execution of the search warrant. This testimony contradicted those portions of the search warrant that provided, in relevant part, that (1) a "confidential and reliable source . . . ha[d] been to the residence to be searched within the past 72 hrs, and observed a quantity of heroin packaged for sale" and (2) "within the past 48 hrs, the confidential and reliable source, working [o]n behalf of the City-County Vice/Narcotics Unit, went to the residence to be searched and purchased heroin from a black male known to the confidential source as `K'." Defendant offered no other evidence, and the State presented no evidence. Based on these facts, defendant ostensibly argues that, because his testimony attacking the allegations in the warrant was uncontested at the hearing, he has proven bad faith. This argument clearly fails. Whether contradicted or not, defendant's evidence concerned solely whether there were factual inaccuracies and did not, impliedly or expressly, concern good or bad faith on the part of the affiant. Accordingly, defendant failed to make the necessary showing to support his motion to dismiss, and this assignment of error is overruled.
II. Probable Cause
In his second assignment of error, defendant asserts the trial court erred in denying his motion to suppress because the allegations contained in the affidavit were insufficient to establish probable cause. The magistrate issuing a search warrant and determining the existence of probable cause examines the totality of the circumstances and makes "`a practical, commmon-sense decision whether . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" State v. Ledbetter, 120 N.C. App. 117, 121, 461 S.E.2d 341, 344 (1995) (quoting Illinois v. Gates, 462 U.S. 213, 238-39, 76 L. Ed. 2d 527, 548 (1983)). "The standard for a court reviewing the issuance of a search warrant is `whether there is substantial evidence in the record supporting the magistrate's decision to issue the warrant.'" Id., 120 N.C. App. at 121, 461 S.E.2d at 343 (quoting Massachusetts v. Upton, 466 U.S. 727, 728, 80 L. Ed. 2d 721, 724 (1984)). Our Supreme Court has cautioned that "great deference is to be paid the magistrate's determination of probable cause, and reviewing courts `should not conduct a de novo review of the evidence to determine whether probable cause existed at the time the warrant was issued.'" Id., 120 N.C. App. at 121-22, 461 S.E.2d at 344 (quoting State v. Greene, 324 N.C. 1, 9, 376 S.E.2d 430, 436 (1989)). See also State v. Riggs, 328 N.C. 213, 400 S.E.2d 429 (1991) (indicating disapproval of a reviewing court's grudging, negative attitude toward warrants).
We can summarily dispense with a number of defendant's arguments contained within this assignment of error. For example, defendant challenges that portion of the affidavit concerning the purchase of heroin by the confidential and reliable informant on the grounds that the magistrate was not informed how the affiant knew heroin was purchased or that it was heroin that was actually purchased. However, the affidavit expressly notes that the confidential and reliable informant was "working [o]n behalf of the City-County Vice/Narcotics Unit" at the time the purchase was made. The affidavit also provides that the confidential and reliable informant was "familiar with the different types of controlled substances included in the North Carolina Controlled Substance Act." We are not troubled by the quantum of information in the affidavit upon which the magistrate determined that the affiant knew heroin was purchased as a result of this collaboration. In addition, the affiant's source, identified as being familiar with controlled substances such as heroin, could attest to whether the substance purchased was or was not, in fact, heroin.
Defendant also attacks the warrant on the grounds that there was no information in the affidavit specifying the amount of (1) heroin purchased by the informant in the previous 48 hours before issuance of the warrant or (2) the "quantity of heroin packaged for sale" observed by the informant in the previous 72 hours before the issuance of the warrant. That heroin was purchased within the past 48 hours and a quantity was observed packaged for sale within the past 72 hours, and not the specific amount, are the operative facts. While we agree that the amount of heroin observed and purchased at the place to be searched is a circumstance to be considered by the issuing officer, the absence of a quantification does not preclude a finding of probable cause. As this Court has observed and we note again, "drug dealing `is ordinarily a regenerating activity carried on over a period of time[.]'" Ledbedder, 120 N.C. App. at 125, 461 S.E.2d at 346 (quoting Davidson v. State, 54 Md. App. 323, 331, 458 A.2d 875, 880 (1983)). This is especially true given that Ms. Cobbs' house (the place where the observation and purchase of the heroin occurred) was also where defendant frequently slept, spent considerable time, and left belongings, and therefore, was a "secure operational base" for defendant. See id.; State v. Louchheim, 296 N.C. 314, 323, 250 S.E.2d 630, 636 (1979).
Finally, defendant argues the information contained in the affidavit was stale. The affidavit indicates that the informant, working with the Narcotics Unit, had purchased heroin within the past forty-eight hours and observed a quantity of heroin packaged for sale in the house within the past seventy-two hours. "`[A] one-shot type of crime, such as a single instance of possession or sale of some contraband, will support a finding of probable cause only for a few days at best.'" State v. McCoy, 100 N.C. App. 574, 577, 397 S.E.2d 355, 358 (1990) (quoting LaFave, Search and Seizure, § 3.7(a) at 78). In Ledbedder, this Court upheld a warrant issued on an affidavit indicating a "quantity of cocaine" had been sold in a controlled buy to a confidential and reliable informant within six days prior to the issuance of the warrant. Ledbedder, 120 N.C. App. at 125, 461 S.E.2d at 346. Noting the "regenerating activity" characterization of drug dealing and the fact that the sale occurred at a "secure operational base," this Court concluded "the affidavit contained sufficient timely information to support a finding there was `a fair probability' that the controlled substance sought was to be found in the location to be searched. Id. (quoting State v. Arrington, 311 N.C. 633, 638, 319 S.E.2d 254, 258 (1984)). We likewise hold the affidavit in the instant case contained information that was sufficiently close in time to support a finding of probable cause. This assignment of error is overruled.
III. Motion to Dismiss
In his final assignment of error, defendant asserts the trial court erred in failing to dismiss the charge of trafficking in heroin by possession due to insufficiency of the evidence.
The question that must be answered when presented with a motion to dismiss a charge at the close of all the evidence is whether, upon consideration of all the evidence in the light most favorable to the State, there is substantial evidence that the crime charged in the bill of indictment was committed and that defendant was the perpetrator. Substantial evidence is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion.
State v. Williams, 355 N.C. 501, 578-79, 565 S.E.2d 609, 654 (2002) (internal citations and quotation marks omitted). Moreover, "contradictions and inconsistencies do not warrant dismissal; the trial court is not to be concerned with the weight of the evidence. Ultimately, the question for the court is whether a reasonable inference of defendant's guilt may be drawn from the circumstances." State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998) (citations omitted).
In the instant case, defendant challenges the sufficiency of the evidence that he was the perpetrator of the crime. Defendant directs the attention of this Court to the following facts: (1) Cobbs, who was with defendant, was found possessing packets of heroin identical to those found in the walk-in closet; and (2) numerous other adults regularly spent evenings in the house in addition to the defendant. Defendant, quoting State v. Brown, 310 N.C. 563, 569, 313 S.E.2d 585, 589 (1984), points out that where, as here, "possession of the premises is nonexclusive, constructive possession of the contraband materials may not be inferred without other incriminating circumstances."
In the instant case, there were other incriminating circumstances. Defendant testified he could not see into the walk-in closet and only stated "That's mine" because he believed Detective Morrisette had found the concealed firearm. However, Detective Morrisette testified defendant had "a straight shot of vision in the closet [he] was searching" and affirmed that "while [he] was searching [he] could . . . look out and see [defendant.]" Moreover, Detective Ciamello testified defendant stated, "All that s*** is mine, yo." Detective Wallace likewise testified defendant indicated "that everything was his." The evidence, taken in the light most favorable to the State, tends to show both that defendant was able to see into the closet and that he expressed ownership of more than a single item. In addition, considering that Detective Morrisette found the gun at the back of the closet, informed Detective Ciamello of the find, nearly concluded his search before finding the heroin at the front right of the closet, and then exclaimed "Bingo" before defendant asserted "All that s*** is mine, yo[,]" we are of the opinion that the timing of defendant's assertion likewise implies an ownership interest in the contraband drugs. In the light most favorable to the State, the jury could infer constructive possession of the heroin. This assignment of error is overruled.
No error.
Chief Judge MARTIN and Judge GEER concur.
Report per Rule 30(e).