{ "id": 8525420, "name": "STATE OF NORTH CAROLINA v. JOHNNY EDWARD GRAHAM", "name_abbreviation": "State v. Graham", "decision_date": "1988-06-21", "docket_number": "No. 8726SC1121", "first_page": "564", "last_page": "568", "citations": [ { "type": "official", "cite": "90 N.C. App. 564" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "344 S.E. 2d 77", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "79" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 91", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521490 ], "year": 1986, "pin_cites": [ { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0091-01" ] }, { "cite": "298 S.E. 2d 372", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "374" } ], "opinion_index": 0 }, { "cite": "307 N.C. 452", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562705 ], "year": 1983, "pin_cites": [ { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0452-01" ] }, { "cite": "187 S.E. 2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573594 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0001-01" ] }, { "cite": "352 S.E. 2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4748383 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0073-01" ] }, { "cite": "463 U.S. 1237", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6264512, 6263312, 6263604, 6263838, 6263038 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us/463/1237-05", "/us/463/1237-02", "/us/463/1237-03", "/us/463/1237-04", "/us/463/1237-01" ] }, { "cite": "462 U.S. 213", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6187462 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us/462/0213-01" ] }, { "cite": "319 S.E. 2d 254", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "256" }, { "page": "258" } ], "opinion_index": 0 }, { "cite": "311 N.C. 633", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4681578 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "636" }, { "page": "638" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0633-01" ] } ], "analysis": { "cardinality": 516, "char_count": 10086, "ocr_confidence": 0.808, "pagerank": { "raw": 7.044348983065606e-08, "percentile": 0.4249309515728523 }, "sha256": "4b44cb555c95430bead95d67e5997c00253f2f6bae3c402c7d4083932b2eafda", "simhash": "1:1f494262664ed2a6", "word_count": 1682 }, "last_updated": "2023-07-14T21:55:12.261630+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ORR and Greene concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JOHNNY EDWARD GRAHAM" ], "opinions": [ { "text": "ARNOLD, Judge.\nDefendant first contends that \u201cthe trial court erred in denying defendant\u2019s 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.\u201d Defendant\u2019s argument is not persuasive.\nNorth Carolina law requires applications for search warrants to contain:\n(1) The name and title of the applicant; and\n(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\n(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\n(4) A request that the court issue a search warrant directing a search for and the seizure of the items in question.\nG.S. 15A-244. \u201cThe 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.\u201d State v. Arrington, 311 N.C. 633, 636, 319 S.E. 2d 254, 256 (1984).\nIn Arrington, our Supreme Court adopted the \u201ctotality of circumstances\u201d test set out in Illinois v. Gates, 462 U.S. 213, reh\u2019g denied, 463 U.S. 1237 (1983), for determining the constitutionality of a magistrate\u2019s 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 \u201ctotality of circumstances\u201d test, \u201cgreat deference should be paid a magistrate\u2019s determination of probable cause and . . . after-the-fact scrutiny should not take the form of a de novo review.\u201d Arrington, 311 N.C. at 638, 319 S.E. 2d at 258.\nThe facts in the present case were sufficient under the \u201ctotality of circumstances\u201d test to support a finding of probable cause. Officers Suit 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\u2019s motion to suppress the evidence seized from the house.\nDefendant 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.\nIn 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). \u201cConstructive possession exists when a person, while not having actual possession, has the intent and capability to maintain control and dominion over a controlled substance.\u201d State v. Williams, 307 N.C. 452, 455, 298 S.E. 2d 372, 374 (1983). As the terms \u201cintent\u201d and \u201ccapability\u201d 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.\nIn 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\u2019s 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\u2019s motion to dismiss.\nNo error.\nJudges ORR and Greene concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Francis W. Crawley, for the State.", "Assistant Public Defender Robert L. Ward for defendant appellant" ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHNNY EDWARD GRAHAM\nNo. 8726SC1121\n(Filed 21 June 1988)\n1. Searches and Seizures 8 23\u2014 narcotics \u2014 search warrant \u2014 probable cause\nThe trial court did not err in a prosecution for trafficking in drugs by possessing more than 28 grams but less than 200 grams of cocaine by denying defendant\u2019s motion to suppress evidence seized under a search warrant on the grounds that there was no probable cause to search the premises as to defendant and that the warrant was fatally defective where the officers who applied for the warrant had 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, and 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. Even assuming that the warrant did not authorize a search of any occupants of the house, neither defendant nor his mother were searched under the authority of the warrant. N.C.G.S. \u00a7 15A-244.\n2. Narcotics 8 4.3\u2014 trafficking in cocaine \u2014 constructive possession \u2014 evidence sufficient\nThe trial court in a prosecution for trafficking in cocaine properly denied defendant\u2019s motion to dismiss where police officers found over 28 grams of cocaine and a letter addressed to defendant in a bedroom in the house; defendant\u2019s mother and father testified that defendant kept his clothes in the bedroom and used the room when he occasionally stayed there; and 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.\nAPPEAL by defendant from Sitton, Judge. Judgment entered 23 June 1987 in Superior Court, Mecklenburg County. Heard in the Court of Appeals 3 May 1988.\nDefendant was charged in a proper bill of indictment with trafficking in drugs by possessing more than 28 grams but less than 200 grams of cocaine in violation of G.S. 90-95(h)(3). Evidence presented at trial tended to show the following facts.\nOn 20 October 1986, Charlotte police officers T. L. Suit and M. S. Faulkenberry obtained a search warrant authorizing a search of\n2044 \u201cB\u201d Ave. Charlotte, N. C., Meek. Co., USA, & white 1960 Olds, tag NC APC9248 & approx. 1968 white stationwagon with woodgrain, parked in drive, & a b/m approx. 55 YOA, 160 lbs., 6'1\" w/mustache, name of Farmer, & a b/f approx. 56 YOA, 180 lbs., about 5'4\", and any occupants.\nIn their application for the search warrant, officers Suit and Faulkenberry set out the following to establish probable cause for the search warrant.\nWe . . . had been informed by a reliable confidential informant that he has been inside the above address within the past 48 hours and has seen cocaine inside the residence and cocaine is being sold at this time by the above occupants. The informant is familiar with how cocaine is packaged and sold on the streets and that he has used cocaine in the past. We have known this informant for three weeks and information provided by this informant has resulted in the seizure of controlled substances included in the N.C. Controlled Substance Act and led to the arrest of at least six individuals for violations of the N.C. Controlled Substance Act.\nOfficers Suit, Faulkenberry, Young and Price executed the search warrant on 20 October 1986 at approximately 7:30 p.m. The officers knocked at the door and when no one answered, they entered the house. In one of the bedrooms the officers found 57 cellophane packets of cocaine in a box underneath a dresser. On top of the same dresser, the officers found a letter from the Charlotte Police Department addressed to defendant at 2044 \u201cB\u201d Avenue. The letter contained a photocopy of an officer\u2019s report of a house breaking at 2044 \u201cB\u201d Avenue which had occurred on 9 October 1986.\nAs the officers continued the search, Bertha Graham, defendant\u2019s mother, returned home and denied knowing about the cocaine. Shortly thereafter, defendant arrived and he was read his Miranda rights and taken to the police station. Defendant made a statement in which he said that he used 2044 \u201cB\u201d Avenue as his address and sometimes stayed there. He also stated that he knew about the cocaine in the box in the bedroom and that it belonged to his father who was called \u201cFarmer.\u201d He further stated that he moved the cocaine from a closet to the box to keep it away from his daughter.\nDefendant\u2019s father, James Graham, also made a statement to police officers on 20 October 1986. James Graham was arrested for possessing four additional bags of cocaine, and he stated that the cocaine seized at the house belonged to him and that neither his wife nor defendant had anything to do with the cocaine. At trial, however, James Graham stated that he made the statement to protect his wife and that the cocaine seized at the house did not belong to him.\nBertha Graham testified at trial that the bedroom where the cocaine was found was defendant\u2019s room when he was there and contained defendant\u2019s clothes.\nThe jury found defendant guilty of trafficking in cocaine and he was sentenced to a fifteen-year term of imprisonment. From the judgment of the trial court, defendant appeals.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Francis W. Crawley, for the State.\nAssistant Public Defender Robert L. Ward for defendant appellant" }, "file_name": "0564-01", "first_page_order": 594, "last_page_order": 598 }