Criminal Practice – ‘Keeping’ a Vehicle – Duration – Use

An hour and a half’s possession, plus a two-month-old receipt, showed that defendant “kept” a vehicle; storing cocaine in the vehicle’s gas-cap compartment showed that defendant was “keeping” illegal drugs.

We reverse the Court of Appeals’ decision, which reversed defendant’s conviction for keeping or maintaining a vehicle which is used for the keeping or selling of controlled substances.

The word “keep” in the “keep or maintain” language of G.S. § 90-108(a)(7) refers to possessing something for at least a short period of time – or intending to retain possession of something in the future – for a certain use. The state adequately showed that defendant “kept” a white Cadillac when the state presented evidence (1) that he was seen driving the Cadillac during an hour and a half of surveillance, including parking the car at a hotel, leaving it, returning to it, and driving away again; (2) that no one else entered the car during that time; and (3) that police found inside the car a two-month-old receipt bearing defendant’s name.

The statute’s second use of “keep” – “for the keeping . . . of” illegal drugs – refers to storing illegal drugs. The state presented substantial evidence that defendant was using the Cadillac to store crack cocaine: Officers found the cocaine hidden in the gas-cap compartment, which is accessible only by operating a switch inside the car; during the observation period, officers saw no one access the gas-cap compartment; and defendant left the drugs in the compartment while he went into the hotel. Finally, putting the drugs in a place that is somewhat hard to access suggests storage rather than mere transportation.

The critical question is whether a defendant’s car is used to store drugs, not how long the defendant’s car has been used to store drugs. As a result, we reject any notion that § 90-108(a)(7) requires that a car kept or maintained by a defendant be used to store drugs for a certain minimum period of time – or that evidence of drugs must be found in the vehicle, building, or other place on more than one occasion – for a defendant to have violated § 90-108(a)(7).

But merely having drugs in a car (or other place) is not enough to justify a conviction under § 90-108(a)(7). The evidence and all reasonable inferences drawn from the evidence must indicate, based on the totality of the circumstances, that the drugs are also being stored there. To the extent that the “duration of time” requirement in State v. Mitchell, 336 N.C. 22, 442 S.E.2d 24 (1994), conflicts with the text of § 90-108(a)(7), this aspect of Mitchell is disavowed.

Reversed.

State v. Rogers (Lawyers Weekly No. 010-068-18, 15 pp.) (Mark Martin, C.J.) Appealed from New Hanover County Superior Court (W. Allen Cobb, J.) On appeal from the Court of Appeals. Kathleen Bolton for the state; Wyatt Orsbon for defendant. N.C. S. Ct.