State v. Butler , 356 N.C. 141 ( 2002 )

Justice ORR

dissenting.

In State v. Matias, I joined Justice Butterfield’s dissent on the grounds that the evidence was insufficient to support sending the case to the jury based upon “constructive possession” of the discovered drugs. There, the majority concluded that “defendant was the only person in the car who could have shoved . . . the cocaine into the crease of the car seat.” 354 N.C. 549, 552, 556 S.E.2d 269, 271 (2001).

The case before us now fails to meet even the minimal standard established by the majority in Matías, and I therefore respectfully dissent and lament Justice Butterfield’s change of view. In this case, there are at least two other individuals who had an equally good, if not better, opportunity to place the drugs under the driver’s seat in the taxi. First, and obviously foremost, was the taxi driver who was in possession and control of the taxi throughout the relevant time frame. The other was the passenger who drove away in the taxi after defendant had exited the vehicle. I note, too, that defendant was in the vehicle for less than a minute, a considerably shorter period than either of the other two occupants, and that he was never alone.

The majority places great weight on the “suspicious” facts surrounding defendant’s arrival from New York City, e.g., his nervousness and the like. While those circumstances may serve to demonstrate that the stop and subsequent search were reasonable police actions, they do not satisfy the evidentiary criteria necessary to establish constructive drug possession which, in the absence of a showing of exclusive control, requires the State to produce other incriminating evidence tying a defendant to the discovered contraband. See State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989). Heretofore, this Court has not addressed whether suspicious conduct that may justify a search may also serve as sufficient “other incriminating evidence” for purposes of establishing constructive possession of drugs in situations where a suspect had neither an ownership interest in the premises nor exclusive control of such premises. However, other courts have considered suspicious conduct in the context of constructive possession, with the most compelling case being decided by the Virginia Supreme Court: Powers v. Commonwealth, 182 Va. 669, 675-76, 30 S.E.2d 22, 25 (1944) (holding that mere suspicions regarding the defendant’s conduct failed as a matter of law to link him to illegal substances that were discovered in a place not under his exclusive control). Thus, in step with the Virginia Supreme Court’s well-reasoned view, I would hold that defendant’s purported suspicious conduct, without more, proves insufficient as support for an inference of constructive possession. As a result, I would additionally conclude that such evidence is inadequate as a matter of law for purposes of validating defendant’s convictions for offenses involving possession of the illegal drugs found in the taxi.

The mere finding of the [contraband] upon the premises occupied by [the accused] and another created no presumption of law that [the accused] was in the possession of it.... There was no positive evidence of the possession of it by him. The circumstances were suspicious, to say the least; but circumstances of suspicion, no matter how grave or strong, are not proof of guilt sufficient to support a verdict of guilty. The actual commission of the crime by the accused must be shown by evidence beyond a reasonable doubt to sustain his conviction.

Finally, while the majority makes much of defendant’s movements getting in and out of the taxi, it pays little heed at all to a plausible explanation for defendant’s apparent physical struggles: shortly before the incident in question, defendant had been the victim of a robbery, during which he was shot in the buttocks. It is also of some interest to note that the undercover agents did not ask the taxi driver to allow them to inspect the car at the time they detained defendant, opting instead to permit the taxi to pick up another fare and leave the scene. Couple these circumstances with the fact that no other drugs, or even drug residue, were found on defendant, and this case appears even weaker than the one mounted against the defendant in Matías. I therefore must disagree with the majority.