In August of 2018 the North Carolina Supreme Court made a distinct change to the state’s interpretation of G.S. 90-108(a)(7), which makes it a crime to maintain a store, dwelling, vehicle, boat, or other place for the use, storage, or sale of controlled substances. Specifically, the change emanated from element (4)(b) of the statute which states; “being used for unlawfully keeping or selling controlled substances.” The average person would read this element of the statute and most likely articulate that for a person to be convicted of maintaining a dwelling, the dwelling must be used to keep illicit drugs or controlled substances. But what does the word “keep” mean, or, more precisely, as the statute’s language states: “keeping?”
Originally, a court case named State v. Dickerson from 2002 which quoted a previous case State v. Mitchell from 1994 answered this proposed question. The state’s interpretation of “keeping” via Mitchell denoted not just possession, but possession that occurred over a duration of time. Therefore, prosecutors had to prove that a defendant’s controlled substance(s) were in the dwelling, be it a vehicle, boat, house etc. for a duration of time if they were to be convicted of maintaining a dwelling. This is no longer in effect.
The North Carolina Supreme Court’s recent decision in State v. Rogers renounces the language from Mitchell and increases the scope of this offense. Now, instead of having to prove that the controlled substances have been in possession over a period of time in the dwelling, prosecutors only need to prove that the controlled substances were being stored in the dwelling. The determination of “being stored” comes down to the court’s analysis of the totality of the circumstances. Under the totality of the circumstances test, courts focus “on all the circumstances of a particular case, rather than any one factor.” This test is a more flexible, all-things-considered approach.
Additionally in State v. Rogers, the defendant had illicit drugs in his car in a place that was hard to access, specifically in the gas cap compartment. The court stated that this meant the defendant was attempting to store the illicit drugs as apposed to transport the illicit drugs. Moreover, a digital scale and small plastic bags were found during the investigation of the case, which further advanced the notion that the defendant was storing the illicit drugs in his vehicle.
With these recent changes to our state’s interpretation of the statute, it may become much easier for prosecutors to charge a defendant with maintaining a dwelling in North Carolina. Hypothetically, if a defendant had controlled substances hidden in their home, say, in a cupboard behind an object, the state may attempt to conclude that the defendant was storing the controlled substances simply because it was in an area that was hard to access. Before this change, prosecutors would have had to prove that the controlled substances were in that area for a period of time – which is much more difficult to prove. Throughout 2019, we will be keeping a close eye on the number of convictions that are granted under the maintaining a dwelling statute. If we were to guess, the number of convictions will trend much higher than in previous years.