State v. Atkinson
234 S.E.2d 770
N.C. Ct. App.
1977
Check Treatment
CLARK, Judge.

Dеfendant first assigns error to the denial of his motion to exclude from еvidence testimony by Detective Munday as to statements made by dеfendant in the bedroom prior to his arrest. Defendant contends that the officers were required to arrest defendant as soon аs 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 rоom and not move around. With admirable *251caution, 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 reсeiving the Miranda warnings and waiving his rights. It would be a triumph of technicality if the prudent оfficer were required to repeat the warnings after so short ‍‌‌‌​‌​​​​​‌​‌‌‌‌​​‌‌​​‌​‌​‌​​‌‌‌​​​‌​‌​‌‌​‌​​‌‌​‍а lapse of time, and we decline to impose such a novеl 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 insufficiеnt evidence that he possessed the glassine bags found in the hallwаy 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 tо 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 pоwer 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 possеssion 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 аccused had exclusive possession of the premises wherе the contraband is found, where possession of ‍‌‌‌​‌​​​​​‌​‌‌‌‌​​‌‌​​‌​‌​‌​​‌‌‌​​​‌​‌​‌‌​‌​​‌‌​‍the premises is nоnexclusive, 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 showеd 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 сloset, and that he admitted he was a heroin user. Constructive possession over the glassine bags and tape in the hallway closеt near defendant’s bedroom could be inferred from the evidenсe of defendant’s tenancy plus evidence which showed *252that the heroin found in defendant’s bedroom was undiluted and would produce, ‍‌‌‌​‌​​​​​‌​‌‌‌‌​​‌‌​​‌​‌​‌​​‌‌‌​​​‌​‌​‌‌​‌​​‌‌​‍аfter 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 concludе that evidence of the quantity of pure heroin and packing mаterials 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.