An unpublished opinion of the North Carolina Court of Appeals does not constitute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746 S.E.2d 22, 2013 WL 3131033 (2013) (unpublished) (“Cherry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).
