State v. Graham

369 S.E.2d 615 (1988)

STATE of North Carolina
v.
Johnny Edward GRAHAM.

No. 8726SC1121.

Court of Appeals of North Carolina.

June 21, 1988.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Francis W. Crawley, Raleigh, for the State.

Asst. Public Defender Robert L. Ward, Charlotte, for defendant-appellant.

ARNOLD, Judge.

Defendant first contends that "the trial court erred in denying defendant's motion to suppress on the grounds that there was no probable cause to search the premises as to the defendant and that the warrant was fatally defective, and that any subsequent evidence obtained as a result was tainted and should have been excluded." Defendant's argument is not persuasive.

North Carolina law requires applications for search warrants to contain:

(1) The name and title of the applicant; and

(2) A statement that there is probable cause to believe that items subject to seizure under G.S. 15A-242 may be found in or upon a designated or described place, vehicle, or person; and

(3) Allegations of fact supporting the statement. The statements must be supported by one or more affidavits particularly setting forth the facts and circumstances establishing probable cause to believe that the items are in the places or in the possession of the individuals to be searched; and

(4) A request that the court issue a search warrant directing a search for and the seizure of the items in question.

G.S. 15A-244. "The affidavit is sufficient if it supplies reasonable cause to believe that the proposed search for evidence probably will reveal the presence upon the described premises of the items sought and that those items will aid in the apprehension or conviction of the offender." State v. Arrington, 311 N.C. 633, 636, 319 S.E.2d 254, 256 (1984).

In Arrington, our Supreme Court adopted the "totality of circumstances" test set out in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, reh'g denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983), for determining the constitutionality of a magistrate's finding of probable cause. Under this test, the question is whether the evidence as a whole provides a substantial basis for concluding that probable cause exists. State v. Williams, 319 N.C. 73, 352 S.E.2d 428 (1987). In applying the "totality of circumstances" test, "great deference should be paid a magistrate's determination of probable cause and ... after-the-fact scrutiny should not take the form of a de novo review." Arrington, 311 N.C. at 638, 319 S.E.2d at 258.

The facts in the present case were sufficient under the "totality of circumstances" test to support a finding of probable cause. Officers Sult and Faulkenberry received information from an informant who admitted past use of cocaine and who had previously given information that led to the arrest of at least six people. The information provided a substantial basis for the probability that cocaine was present in the described residence and had been sold there within the preceding 48 hours. The search warrant was supported by probable cause and authorized the search of the house. Even assuming arguendo that the warrant did not authorize a search of any occupants in the house, the record indicates that neither defendant nor his mother were searched under the authority of the warrant. Thus, the trial court properly denied defendant's motion to suppress the evidence seized from the house.

Defendant also contends that the trial court erred in denying his motion to dismiss because the evidence was insufficient. There was no error in denial of the motion.

In order to prove the offense of trafficking in cocaine, the State is required to present evidence that defendant possessed at least 28 grams of cocaine. G.S. 90-95(h)(3). Possession of a controlled substance may be actual or constructive. State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972). "Constructive possession exists when a person, while not having actual possession, has the intent and capability to maintain control and dominion over a controlled substance." State v. Williams, 307 N.C. 452, 455, 298 S.E.2d 372, 374 (1983). As the terms "intent" and "capability" suggest, constructive possession depends on the totality of circumstances in each case. State v. James, 81 N.C.App. 91, 93, 344 S.E.2d 77, 79 (1986). No single factor controls, but ordinarily the question will be for the jury. Id.

In the case sub judice, police officers found over 28 grams of cocaine and a letter addressed to defendant in a bedroom in the house. Defendant's mother and father testified that defendant kept his clothes in the bedroom and used the room when he occasionally stayed there. Defendant admitted that he had moved the bags of cocaine from a closet to the box under the dresser. This evidence clearly raised an inference of constructive possession sufficient to be submitted to the jury. The trial court did not err in denying defendant's motion to dismiss.

No error.

ORR and GREENE, JJ., concur.