STATE OF NORTH CAROLINA
v
.
New Hanover County
No. 03 CRS 1503
KENYATTE MALIK PRICE
Attorney General Roy Cooper, by Assistant Attorney General
William B. Crumpler, for the State.
Parish & Cooke, by James R. Parish, for defendant-appellant.
CALABRIA, Judge.
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 pointafter 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 hismotions 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 concernedsolely 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, 461S.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 forsale” 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).
*** Converted from WordPerfect ***