State v. Cherry

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA14-172
NORTH CAROLINA COURT OF APPEALS

Filed: 2 September 2014

STATE OF NORTH CAROLINA

v. Nash County
No. 11 CRS 052350
EARL CHERRY

Appeal by defendant from order entered 27 September 2013 by

Judge Wayland J. Sermons in Nash County Superior Court. Heard

in the Court of Appeals 14 August 2014.

Attorney General Roy Cooper, by Assistant Attorney General
Donald W. Laton, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate
Defender Hannah Hall, for defendant-appellant.

HUNTER, JR., Robert N., Judge.

Earl Cherry (“Defendant”) appeals from an amended order

denying his motion to suppress evidence seized by police as the

result of an allegedly unlawful entry and search at a private

residence in Rocky Mount. Defendant’s appeal from the trial

court’s order lies of right to this Court pursuant to N.C. Gen.
 -2-
Stat. § 7A-27(b) and § 15A-979(b) (2013). Upon review, we

affirm.

This is the second time that Defendant’s case has been

reviewed by this Court. See State v. Cherry, ___ N.C. App. ___,

746 S.E.2d 22, 2013 WL 3131033 (2013) (unpublished) (“Cherry

I”). We adopt the factual and procedural history of this matter

as stated in this Court’s prior opinion:

In May 2011, Officer Curtis Robinson
(“Officer Robinson”), with the Rocky Mount
Police Department (“RMPD”), received a tip
from a confidential informant that a man
named Earl was selling marijuana from an
apartment with the address, 450 Sled Court
(“the apartment”), which was located in the
Rolling Meadows apartment complex (“Rolling
Meadows”) in Rocky Mount, North Carolina.
On 1 and 2 May 2011, Officer Robinson
performed surveillance at Rolling Meadows
and learned that [D]efendant was Earl.
Officer Robinson also discovered that
[D]efendant had outstanding unserved
warrants in the NCAWARE system. On one of
[D]efendant’s criminal summonses, 450 Sled
Court was listed as his address. Officer
Robinson received additional information
that [D]efendant resided at 450 Sled Court.

On 3 May 2011, after Officer Robinson
observed [D]efendant entering the apartment,
he contacted Officer J.T. Manning (“Officer
Manning”), requesting his assistance with
serving the warrants. When Officer Manning
arrived, both officers knocked on the door.
Although Officer Robinson believed
[D]efendant was present in the apartment, he
asked for “Hernandez” since asking for a
person other than the one named in the
 -3-
warrant is usually an effective way to get
someone to answer the door.

After six to seven minutes, Latoya Howington
(“Howington”) answered the door. Despite
the fact that Howington told the officers
only she and her small children were located
inside the apartment, the officers entered
the apartment. The officers located
[D]efendant in a back bedroom and arrested
him for the offenses on the outstanding
warrants. Officer Robinson also informed
Howington that he planned to obtain a search
warrant because Officer Manning observed
marijuana in an ashtray outside the
apartment doorway and detected the
possibility of the presence of marijuana
from an odor inside the apartment. After
Howington consented to a search of the
apartment, [D]efendant showed the officers
where he placed the marijuana. Officers
located five bags of marijuana, a set of
scales and $137.00 in United States
currency.

Defendant was indicted for possession with
intent to sell and deliver marijuana, felony
possession of marijuana and possession of
drug paraphernalia. Defendant filed a
pretrial motion to suppress all evidence,
alleging that both the entry and search of
Howington’s apartment was unlawful. On 2
April 2012, the trial court conducted a
hearing on [D]efendant’s motion to suppress
and denied the motion. Defendant then filed
a written notice of preservation of his
right to appeal the motion to suppress.
Defendant then pled guilty to possession of
marijuana and the State dismissed the
remaining charges. The trial court
sentenced defendant to a minimum of 10
months and maximum of 12 months in the North
Carolina Division of Adult Correction.
 -4-
Id. at *1–2 (footnote omitted).

In Cherry I, Defendant appealed the trial court’s order

arguing, inter alia, that the trial court’s findings of fact did

not support the conclusion that police officers made a legal

entry into the residence pursuant to N.C. Gen. Stat. § 15A-

401(e)(1) (2013) to effectuate Defendant’s arrest. Id. at *3–4.

That statute provides that:

A law-enforcement officer may enter private
premises or a vehicle to effect an arrest
when:

a. The officer has in his possession a
warrant or order or a copy of the
warrant or order for the arrest of a
person, provided that an officer may
utilize a copy of a warrant or order
only if the original warrant or order
is in the possession of a member of a
law enforcement agency located in the
county where the officer is employed
and the officer verifies with the
agency that the warrant is current and
valid; or the officer is authorized to
arrest a person without a warrant or
order having been issued,

b. The officer has reasonable cause to
believe the person to be arrested is
present, and

c. The officer has given, or made
reasonable effort to give, notice of
his authority and purpose to an
occupant thereof, unless there is
reasonable cause to believe that the
giving of such notice would present a
clear danger to human life.
 -5-

N.C. Gen. Stat. § 15A-401(e)(1).

The relevant findings of fact in the trial court’s original

order were as follows:

4. Officer Robinson conducted surveillance
on the Rolling Meadows apartment complex on
May 1, 2011 and May 2, 2011 looking for
narcotic activity. On May 3, 2011, while
observing apartment 450, uniformed Officer
Robinson verified that “Earl” was present in
the apartment.

5. Officer Robinson found the suspects last
name to be Cherry and that he had six
outstanding warrants. Officer Manning
arrived on scene to assist Officer Robinson
with warrant service of the warrants that
were listed and displayable in NCAWARE.

. . .

7. The Rocky Mount officers knocked on the
door and waited several minutes. No one
answered and Officer Manning asked through
the door for “Hernandez”. While waiting,
Officer Manning noticed a marijuana blunt in
an ashtray on the porch.

8. According to Latoya Howington’s testimony
she answered the door and told the officers
“Hernandez doesn’t live here, stay right
here and I’ll be back. I’m going to get my
license.”

9. Officers Robinson and Manning testified
that they asked Latoya Howington for
“Hernandez” initially to get someone to
respond to the door and then asked if Earl
Cherry was inside because they were there to
serve arrest warrants. According to the
 -6-
officers’ testimony, Ms. Howington responded
at both times that no one was in the
apartment but her and her children.

Upon review of the record evidence and the trial court’s

findings, we stated that

[t]here was conflicting evidence regarding
when, or if, the officers informed Howington
that they were looking for [D]efendant.
Officer Robinson testified that they
informed Howington that they were there to
serve [D]efendant warrants. Officer Manning
testified that Officer Robinson mentioned
[D]efendant upon entry into the apartment.
However, Howington testified that they only
mentioned “Hernandez” to her and never
indicated they were there for [D]efendant.

Cherry I, 2013 WL 3131033, at *3. Accordingly, we held that

[s]ince the trial court’s finding of fact
regarding the officers’ announcement of
their purpose and authority to enter
Howington’s apartment merely reiterated the
officers’ testimony, rather than determined
the issue, the trial court’s findings did
not support its conclusion that proper
notice was given in accordance with N.C.
Gen. Stat. § 15A–401 (e)(1)(c).

Id. at *4. We remanded for the trial court to resolve this

conflict in the evidence and to again determine the legality of

the entry into the apartment. Id.

On remand, the trial court took no additional evidence and

relied on the transcript from the first motion hearing. On 27

September 2013, the trial court entered an amended order
 -7-
incorporating each finding of fact and conclusion of law from

its original order and finding the following additional facts:

4(a) The officer observed the Defendant
walking in the apartment complex, and saw
him enter apartment 450 at Sled Court.

5(a) That the N.C. Aware system allows an
officer in the field to pull up an
electronic version of an outstanding
warrant, and Officer Robinson was in
possession of the electronic warrants for
Defendant at the time he entered Howington’s
apartment.

9(a) That the Court specifically finds that
Officer Robinson gave Latoya Howington
notice that his purpose in being at her
apartment was to locate the Defendant, and
serve him with outstanding arrest warrants.

Based on its findings, the trial court concluded:

3. That the possession of electronic copies
of Defendant’s outstanding arrest warrants
on Officer Robinson’s electronic device
complies with N.C.G.S. 15A-401(e)(1)(a).

4. That Officer Robinson had reasonable
cause to believe that the Defendant was
present in Howington’s apartment pursuant to
N.C.G.S. 15A-401(e)(1)(b).

5. That Officer Robinson gave notice of his
authority and purpose to Ms. Howington, an
occupant of the apartment, which complies
with N.C.G.S. 15A-401(e)(1)(c).

Thus, the trial court concluded that the officers made a legal

entry into the residence pursuant to N.C. Gen. Stat. § 15A-

401(e)(1) and denied Defendant’s motion to suppress. Defendant
 -8-
appealed again to this Court, seeking review of the trial

court’s amended order.

Defendants brief to this Court raises a number of issues on

appeal, many of which are the same issues that this Court

refused to review in Cherry I. See, e.g., Cherry I, 2013 WL

3131033, at *4 (“Defendant’s brief raises numerous other issues.

However, as these issues were not presented to the trial court

in [D]efendant’s motion to suppress evidence or during the

hearing, we decline to review them on appeal.”). Upon review of

the brief submitted to this Court by Defendant in Cherry I, we

are troubled and perplexed that Defendant’s appellate counsel

essentially submitted the same brief again, seeking review of

issues this Court has expressly refused to consider. We note

that our Rules of Appellate Procedure allow this Court to

impose a sanction against a party or
attorney or both when the court determines
that an appeal or any proceeding in an
appeal was frivolous because . . . a
petition, motion, brief, record, or other
paper filed in the appeal was grossly
lacking in the requirements of propriety,
grossly violated appellate court rules, or
grossly disregarded the requirements of a
fair presentation of the issues to the
appellate court.

N.C. R. App. P. 34(a). Although we decline to exercise this

authority here, we emphasize that this Court’s efficient
 -9-
administration of justice is compromised by such action and

caution against future infractions of this sort.

Accordingly, we limit our review to those portions of

Defendant’s brief that challenge the trial court’s amended

order, answering specifically: (1) whether the trial court

resolved the conflict in the evidence concerning the legality of

the police officers’ entry into the apartment, and (2) whether

the trial court erred in concluding that “the possession of

electronic copies of Defendant’s outstanding arrest warrants on

Officer Robinson’s electronic device complies with N.C.G.S. 15A-

401(e)(1)(a).” We address each in turn.

With respect to the first issue, Defendant contends that

the trial court’s amended order does not resolve the conflict of

whether the officers gave notice to Howington concerning their

authority and purpose prior to entering the apartment.

Defendant also contends that finding of fact 9(a) fails to

establish that the officers asked for Defendant by name. We

disagree.

In finding of fact 9(a), the trial court specifically found

“that Officer Robinson gave Latoya Howington notice that his

purpose in being at her apartment was to locate the Defendant,

and serve him with outstanding arrest warrants.” This finding
 -10-
of fact is responsive to this Court’s remand instruction in

Cherry I. The finding resolves the conflict between the

officers’ testimony that they told Howington before entering the

apartment that they were there to serve arrest warrants on Earl

Cherry and Howington’s testimony that they did not. By entering

finding of fact 9(a), the trial court decided to believe the

officers’ testimony over Howington’s, which, as the trier of

fact at the motion hearing, was the trial court’s prerogative.

See State v. Clark, 211 N.C. App. 60, 65, 714 S.E.2d 754, 758

(2011) (stating that if “the trial court’s factual findings have

adequate evidentiary support, they are conclusive for purposes

of appellate review even if the record contains conflicting

evidence.”).

Furthermore, read in context with the findings of fact from

the previous order, finding 9(a) establishes that the officers

announced their authority and purpose before entering the

apartment. The trial court’s findings progress in chronological

order and it is not until finding of fact 10 that the trial

court finds that “Rocky Mount officers made entry into the

apartment and located Earl Cherry standing in the back bedroom.”

The fact that finding 9(a), standing alone, is unclear as to

where it fits into the timeline does not warrant additional
 -11-
fact-finding. Read in context with the other findings of fact,

finding 9(a) establishes that the officers announced their

authority and purpose prior to entering the apartment.

Defendant’s first argument is overruled.

With respect to the second issue, Defendant contends that

the trial court erred as a matter of law when it concluded on

remand that “the possession of electronic copies of Defendant’s

outstanding arrest warrants on Officer Robinson’s electronic

device complies with N.C.G.S. 15A-401(e)(1)(a).” Specifically,

Defendant contends that, pursuant to N.C. Gen. Stat. § 15A-

401(e)(1)(a), the officers were required to have paper copies of

the warrants in their possession before entering the apartment

to effectuate Defendant’s arrest. See N.C. Gen. Stat. § 15A-

401(e)(1)(a) (stating that “[a] law enforcement officer may

enter private premises or a vehicle to effect an arrest

when . . . [t]he officer has in his possession a warrant or

order or a copy of the warrant or order for the arrest of a

person . . . .”).

At the outset, we acknowledge that in Cherry I, this Court

expressly refused to review this issue. Cherry I, 2013 WL

3131033, at *3 (“On appeal, [D]efendant challenges the trial

court’s conclusion that the officers were in possession of
 -12-
warrants through NCAWARE, contending that it was necessary for

the officers to have paper copies of the warrants. At the

hearing, however, [D]efendant did not challenge the manner in

which the officers served [D]efendant. Therefore, we decline to

review this issue on appeal.”). However, because on remand the

trial court entered a new conclusion of law concerning this

issue, we review that conclusion here for the limited purpose of

determining if it is an accurate statement of the law.

Officer Robinson did not have a paper copy of Defendant’s

outstanding warrants with him when Defendant was arrested.

Officer Robinson accessed Defendant’s warrants electronically at

the scene using NCAWARE.

NCAWARE is an acronym for the North Carolina
Warrant Repository. The system was designed
to issue and track warrants for all wanted
persons in North Carolina. NCAWARE
maintains detailed information about
criminal processes, such as warrants,
magistrate orders, citations that lead to an
arrest, criminal summons, orders for arrest,
release orders, and appearance bonds. It
also tracks information and details for all
people and businesses involved in such
processes. NCAWARE is a custom-developed,
web-based system that was designed, written,
tested and implemented by the N.C. Judicial
Department’s Administrative Office of the
Courts (NCAOC). . . . This statewide system
launched in June 2008 in Johnston County and
is being rolled out county-by-
county. . . . Once the system is fully
implemented in all 100 counties, the number
 -13-
of users of NCAWARE, including law
enforcement, is estimated to reach 35,000.

NCAWARE Fact Sheet, The North Carolina Court System,

http://www.nccourts.org/news/ncawarefacts.asp (last visited Aug.

21, 2014). Thus, the question presented, which we discern to be

a question of first impression before this Court, is of

statewide significance to law enforcement officials accessing

criminal processes using NCAWARE.

Upon careful review, we hold that an officer “possesses” a

warrant for purposes of satisfying N.C. Gen. Stat. § 15A-

401(e)(1)(a) if the officer has a displayable electronic version

of the warrant on an electronic device in the officer’s

possession. Under N.C. Gen. Stat. § 15A-101.1 (2013), entitled,

“Electronic technology in criminal process and procedure,”

Section (9)(b) defines an “Original” document as any “document

existing in electronic form, including the electronic form of

the document and any copy that is printed from the electronic

form.” It follows therefore, that possession of the electronic

form of a document is possession of the original document

itself. Accordingly, by having an electronic version of

Defendant’s arrest warrants pulled up on his computer, Officer

Robinson was in possession of Defendant’s outstanding warrants

and the trial court did not err in concluding that Officer
 -14-
Robinson complied with N.C. Gen. Stat. § 15A-401(e)(1) before

entering the apartment to effectuate Defendant’s arrest.

Defendant’s second argument is overruled.

Notably, however, our holding with respect to this issue is

a limited one. In concluding that the possession of an

electronic version of an arrest warrant complies with the

“possession” requirement of N.C. Gen. Stat. § 15A-401(e)(1), we

do not reach questions concerning service of the warrant

pursuant to N.C. Gen. Stat. § 15A-301(c)(1) and § 15A-301.1(g),

(k) (2013). See Cherry I, 2013 WL 3131033, at *3 (“[D]efendant

did not challenge the manner in which the officers served

[D]efendant. Therefore, we decline to review this issue on

appeal.”).

In summary, because the trial court resolved the conflict

in the evidence previously identified by this Court concerning

the legality of the police officers’ entry into the apartment,

and because the trial court properly concluded that Officer

Robinson’s possession of an electronic version of Defendant’s

warrants complied with N.C. Gen. Stat. § 15A-401(e)(1)(a), the

trial court’s amended order denying Defendant’s motion to

suppress is affirmed.

AFFIRMED.
 -15-
Judges STEELMAN and GEER concur.

Report per Rule 30(e).