State Of North Carolina v. Biber

• Citation: 698 S.E.2d 476
• Decision Date: 07 September 2010
• Docket Number: No. COA09-331.,COA09-331.
• Parties: STATE of North Carolinav.Benzion BIBER.
• Court: Court of Appeal of North Carolina (US)

698 S.E.2d 476

STATE of North Carolinav.Benzion BIBER.

No. COA09-331.

Court of Appeals of North Carolina.

Sept. 7, 2010.

Appeal by Defendant from judgment entered 3 October 2008 by Judge Zoro J. Guice, Jr. in Superior Court, Buncombe County. Heard in the Court of Appeals 16 September 2009.

Attorney General Roy Cooper, by Special Deputy Attorney General Robert T. Hargett, for the State.

Betsy J. Wolfenden, Chapel Hill, for Defendant on brief.

Appellate Defender Staples Hughes substituted, after briefing, as counsel of record for Defendant.

McGEE, Judge.

Benzion Biber (Defendant) was indicted for possession of four grams of crack cocaine on 3 March 2008 based on evidence obtained pursuant to Defendant's arrest on 9 September 2007. Defendant moved to suppress the cocaine on 26 September 2008, arguing it was obtained in violation of Defendant's Fourth Amendment rights. The trial court heard Defendant's motion to suppress on 3 October 2008 ¹ and entered an order denying defendant's motion on 14 November 2008. Defendant then entered a plea of guilty to possession of a schedule II substance, preserving his right to appeal the denial of his motion to suppress. Defendant was sentenced to a suspended sentence of six to eight months, and was placed on twenty-four months supervised probation. Defendant appeals.

The State presented the following evidence at the 3 October 2008 hearing on Defendant's motion to suppress. Cheryl Harvin (Harvin) General Manager of a Motel 6 in Buncombe County, testified she received two complaints on 9 September 2007 from one of her guests, Sharon Hensley (Hensley), who had rented a room (“Room 312” or “the room”) with an unidentified friend the previous evening. Both times Hensley complained that there were people in her room using drugs, and that she did not want them there. She did not identify who was in her room, or who was using drugs. Hensley first spoke to Harvin in the office of the Motel 6. Subsequently, Hensley called Harvin from an unknown location, but not from Room 312. Harvin called the Asheville Police Department, and two officers, Alan Presnell (Officer Presnell) and Michelle Spinda (Officer Spinda), were dispatched to the Motel 6. Harvin accompanied the officers to Room 312, and Harvin knocked on the door.

Officer Presnell testified that he and Officer Spinda remained out of view as the door opened, and he heard Harvin speak with a male who was inside the room. Harvin told the male “you are not supposed to be here,” and then Officer Presnell “stepped around the corner of the doorway ... and [he] encountered [Defendant] standing at the door.” Officer Presnell told Defendant why they were there, and Defendant stepped back to let the officers into the room, but the officers remained in the doorway. Officer Presnell testified that when he “asked whose room is this, [Defendant] said, ‘It's my room.’ That led me to believe that he was the official renter of the room when, in fact, now I know he wasn't.”

Officer Presnell then saw that two females, later identified as Tammy Meadows (Meadows) and Candice Moose (Moose), were also in the room. Officer Presnell observed that there were two beds in Room 312, one closer to the entrance door and one closer to the bathroom towards the rear of the room. When Officer Presnell entered the room, Meadows, who had been sitting on the bed closest to the bathroom, “got up from the bed and I would say ran to the bathroom [and] went in and closed the door.” Knowing that there had been a report of drug activity in Room 312, Officer Presnell testified that the action of Meadows “was consistent with what we know to be the activities of someone who is either trying to destroy or hide evidence or trying [to] elude the police[.]” Officer Spinda saw Meadows grab what Officer Spinda identified as a crack pipe before Meadows ran into the bathroom.

The officers then entered Room 312. They observed drug paraphernalia consistent with crack cocaine use on the bed closest to the bathroom, which was the bed on which Meadows had just been sitting. Officer Presnell asked Defendant to step back while Officer Spinda went to the bathroom door, knocked on the door, and asked Meadows to come out. Officer Spinda heard the toilet flush. Officer Presnell described his job at that point as maintaining the situation in the room by keeping control of Defendant and Moose while Officer Spinda dealt with the situation in the bathroom. Officer Presnell was making sure neither Defendant nor Moose made any threatening movements or attempted to hide or destroy any potential evidence. Defendant was walking back and forth between one of the beds and the dresser in the room. Officer Presnell asked Defendant several times to remain still. Officer Presnell described Defendant as attempting to reach under pillows and open the dresser drawers. During this time, Officer Spinda collected the drug paraphernalia from the bed, and continued her attempts to gain access to the bathroom. After about a minute, Meadows opened the bathroom door and came out. Officer Spinda described Meadows as “nervous and jittery.”

Officer Spinda then entered the bathroom to conduct a search because she was concerned that Meadows may have been attempting to hide or destroy evidence. Officer Spinda noticed razor blades in the toilet bowl. At this point, Defendant, Meadows, and Moose were all seated on the beds. Officer Presnell questioned Meadows, asking her why she had run into the bathroom, and if there had been any illegal activity taking place. Officer Spinda returned from the bathroom holding a small cardboard box. Officer Presnell looked inside the box and saw more drug paraphernalia. Officer Spinda asked if the box belonged to the two women or Defendant. All three denied owning the box. Meadows, however, admitted she owned some of the paraphernalia in the box. Officer Spinda located more paraphernalia after searching the women's purses. Officer Spinda returned to the bathroom and located a plastic bag containing white powder inside a light fixture. No field test was conducted on the substance by the officers at that time. Defendant, Meadows, and Moose all denied knowing anything about the white substance.

During the search, Officer Spinda pulled back the covers on the bed upon which Defendant was seated, and Defendant jumped up in a manner that Officer Presnell found potentially threatening to Officer Spinda. Officer Presnell then drew his weapon and placed Defendant in handcuffs. There was a duffel bag containing men's clothing near the entrance to the room. Defendant stated the duffel bag belonged to him.

The officers arrested Defendant, Meadows, and Moose. Meadows and Moose were arrested for possession of paraphernalia and possession of a controlled substance. It is unclear if either Meadows or Moose was arrested for trespassing. Officer Presnell testified that Defendant was not arrested for possession of paraphernalia because Defendant “didn't have any paraphernalia about his person even though he was in the room, the paraphernalia was more consistent with the females. [Meadows] ... was in the bathroom seconds before the paraphernalia was found in the bathroom.”

Defendant was arrested for “constructive possession of what we believed to be powder cocaine.” Officer Presnell transported Defendant to the detention center. At the time, Officer Presnell did not know whether Defendant's presence in Room 312 had been lawful or not. When they reached the detention center, Officer Presnell informed Defendant that if he had any contraband on him, he should let Officer Presnell know before they entered the detention facility. Defendant then asked Officer Presnell to hold out his hands and Defendant dropped two rocks, later determined to be four grams of crack cocaine, into Officer Presnell's hands. Lab tests subsequently conducted on the white powder obtained from the light fixture in the bathroom of Room 312 determined that it was not a controlled substance.

Defendant contends that the trial court erred in denying Defendant's motion to suppress. We agree.

“In reviewing a trial judge's ruling on a suppression motion, we determine only whether the trial court's findings of fact are supported by competent evidence, and whether these findings of fact support the [trial] court's conclusions of law.” State v. Pulliam, 139 N.C.App. 437, 439-40, 533 S.E.2d 280, 282 (2000) (citation omitted).

In this case, after the denial of Defendant's motion to suppress, Defendant pled guilty to the charge of felony possession of cocaine. Because prior to arrest, no suspected controlled substance was actually found on Defendant's person, or in any of his personal belongings, the State based its possession charge against Defendant upon the theory that Defendant constructively possessed the white powder recovered from the bathroom light fixture in Room 312.

“A defendant constructively possesses contraband when he or she has ‘the intent and capability to maintain control and dominion over’ it. The defendant may have the power to control either alone or jointly with others.” State v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009) (citation omitted). Absent exclusive control over the area in which the suspected controlled substance was found, “constructive possession of the [suspected] contraband materials may not be inferred without other incriminating circumstances.” State v. Brown, 310 N.C. 563, 569, 313 S.E.2d 585, 589 (1984); see also State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 271 (2001); State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989). A “ ‘conviction must be based upon [a defendant's] knowing possession of the [suspected controlled substance].’ A State cannot obtain a conviction based on drugs being ‘surreptitiously introduced ... into a defendant's residence.’ ” Rashidi, 172 N.C.App. at 635-36, 617 S.E.2d at 74 (citations omitted). For example, “[t]he State must show more than [that a] package was...