State v. Atkinson , 33 N.C. App. 247 ( 1977 )

CLARK, Judge.

Defendant first assigns error to the denial of his motion to exclude from evidence testimony by Detective Munday as to statements made by defendant in the bedroom prior to his arrest. Defendant contends that the officers were required to arrest defendant as soon as the packages were found and to warn him again of his Miranda rights. Under Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed. 2d 694, 706 (1966), the critical time at which the warnings must be given is not arrest, but during “custodial interrogation” which was defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” In the present case, defendant, along with others, was told to remain in the living room and not move around. With admirable caution, Detective Munday then informed the group of their Miranda rights, prior to any questioning. Defendant was questioned by Detective Munday some 5 to 10. minutes after receiving the Miranda warnings and waiving his rights. It would be a triumph of technicality if the prudent officer were required to repeat the warnings after so short a lapse of time, and we decline to impose such a novel strait jacket upon diligent police officers. We find no merit in this assignment of error.

Defendant next assigns error to the denial of his motion for nonsuit. Defendant particularly contends that there was insufficient evidence that he possessed the glassine bags found in the hallway closet, and that without this evidence, there was insufficient evidence of an intent to sell or deliver.

It is well settled that upon motion for nonsuit the evidence must be considered in the light most favorable to the State. See cases cited in 4 Strong, N. C. Index, Criminal Law § 104 (3d ed. 1976). An accused has possession of contraband when he has both the power and the intent to control its disposition or use. State v. Summers, 15 N.C. App. 282, 189 S.E. 2d 807 (1972), cert. denied, 281 N.C. 762, 191 S.E. 2d 359 (1972). Such possession may be either actual or constructive.. Constructive possession exists when there is no actual personal dominion over the material, but there is an intent and capability to maintain control and dominion over it. State v. Crouch, 15 N.C. App. 172, 189 S.E. 2d 763 (1972), cert. denied, 281 N.C. 760, 191 S.E. 2d 357 (1972). While it may not be necessary to show that the accused had exclusive possession of the premises where the contraband is found, where possession of the premises is nonexclusive, constructive possession of the contraband by the accused may not be inferred without other incriminating circumstances. State v. Baxter, 285 N.C. 735, 208 S.E. 2d 696 (1974); State v. Spencer, 281 N.C. 121, 187 S.E. 2d 779 (1972); Annot., 56 A.L.R. 3d 948 (1974).

In the instant case, constructive possession by the defendant of the heroin could be inferred from the evidence which showed that the heroin was found in a concealed place in his bedroom, that a needle and syringe were found in a man’s coat in his closet, and that he admitted he was a heroin user. Constructive possession over the glassine bags and tape in the hallway closet near defendant’s bedroom could be inferred from the evidence of defendant’s tenancy plus evidence which showed that the heroin found in defendant’s bedroom was undiluted and would produce, after cutting and packaging, about twenty street dosages. Assuming arguendo that there was insufficient evidence to show constructive possession of the materials found beneath the apartment building, we conclude that evidence of the quantity of pure heroin and packing materials found in defendant’s constructive possession was sufficient to raise an inference of an intent to sell or deliver. See State v. Baxter, supra. We find no error in the denial of defendant’s motion for nonsuit on the charge of possession with intent to sell or deliver.

No error.

Chief Judge Brock and Judge Vaughn concur.