State v. Beckham , 105 N.C. App. 214 ( 1992 )

HEDRICK, Chief Judge.

The critical question raised by this appeal is whether the trial court erred in denying defendant’s motion to suppress his statement to police officers that he had lived at the house at 203 South Halsey Street for approximately one month. Defendant argues the statement was obtained as the result of a custodial interrogation which occurred prior to defendant being advised of his constitutional rights as set out in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694 (1966). We agree.

In State v. Marshall, 94 N.C. App. 20, 380 S.E.2d 360, appeal dismissed, disc. review denied, 325 N.C. 275, 384 S.E.2d 526 (1989), this Court held that it was error for the trial court to admit into evidence defendant’s statement that he lived in the house where a search for drugs was taking place prior to defendant being read his Miranda rights. Id. at 32, 380 S.E.2d at 367. This Court stated that a custodial interrogation had taken place since “[t]he occupants were not free to leave and the question was likely to produce an incriminating response.” Id. at 33, 380 S.E.2d at 368.

In Marshall, however, this Court found that the error was harmless beyond a reasonable doubt because there was other evidence admitted tending to show that defendant was a resident of the premises searched. Id. In the present case, there is no other evidence tending to show that defendant was a resident of the premises in question, and the error here is clearly prejudicial.

Our determination that the court erred in denying defendant’s motion to suppress his statement resolves the question of whether the court erred in denying defendant’s motion to dismiss the charges of possession of the cocaine found hidden under the living room carpet and maintaining a place to keep a controlled substance. As noted above, there is no evidence that defendant was in control of the premises, or constructively possessed the cocaine, or that he maintained a place to keep a controlled substance. Thus, the trial judge erred in denying defendant’s motion to dismiss the charges of possession of the cocaine and maintaining a place to keep a controlled substance, and the judgment with respect to these charges will be reversed.

Defendant’s contention that the court erred in not dismissing the charge of possession of drug paraphernalia is without merit. The evidence presented tends to show that when the police officers entered the kitchen of the house they found defendant seated at a small table, holding a spoon in his hand which was covered with a white powder residue. Found on the table where defendant was seated were a “crack” pipe, a box cutter containing a razor blade, a box of plastic baggies, and a quantity of plastic baggie corners. On a mantel directly above the table where defendant was seated, a box of baking soda, a pair of scissors and a mirror covered with a white powder residue were found. This evidence is clearly sufficient to show that defendant actually possessed items of drug paraphernalia, and the trial court correctly denied defendant’s motion to dismiss with respect to this charge.

As to defendant’s contention that the trial court erred in denying his motion to suppress the evidence obtained as a result of the search, assuming arguendo, that defendant has standing to raise the question of the validity of the search warrant, we hold the search warrant was based on sufficient facts to support a finding of probable cause under the totality of the circumstances.

The result is: With respect to the charges of possession with intent to sell or deliver cocaine, case number 90-25771 and maintaining a place to keep a controlled substance, case number 90-25772, the judgment will be reversed; with respect to the charge of possession of drug paraphernalia, we find no error in the trial and the cause will be remanded for resentencing in case number 90-25773.

Reversed in part; remanded in part for resentencing.

Judges Wells and Johnson concur.