Opinion
No. COA12–1074.
2013-06-18
STATE of North Carolina v. Earl CHERRY.
Attorney General Roy Cooper, by Associate Attorney General David Shick, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Hannah Hall, for defendant-appellant.
On writ of certiorari to review order entered 4 April 2012 by Judge Wayland J. Sermons, Jr. in Nash County Superior Court. Heard in the Court of Appeals 13 March 2013. Attorney General Roy Cooper, by Associate Attorney General David Shick, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Hannah Hall, for defendant-appellant.
CALABRIA, Judge.
We have granted Earl Cherry's (“defendant”) petition for writ of certiorari to review an order denying defendant's motion to suppress evidence obtained as the result of an allegedly unlawful entry and search. We remand for additional findings.
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 defendant was Earl. Officer Robinson also discovered that defendant had outstanding unserved warrants in the NCAWARE system. On one of defendant's criminal summonses, 450 Sled Court was listed as his address. Officer Robinson received additional information that defendant resided at 450 Sled Court.
“NCAWARE is a web-based system ... implemented by the North Carolina Administrative Office of the Courts. The system maintains detailed information about criminal processes.... With NCAWARE, law enforcement can view and serve any electronic unserved process in the state without having paper in hand.” http://www.nccourts.org/Citi zens/JData/Documents/Technology_NCAWARE_Facts.pdf.
On 3 May 2011, after Officer Robinson observed defendant 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 defendant was present in the apartment, he asked for “Hernandez” since asking for a person other than the one named in the 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 defendant 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, defendant 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 defendant'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. Defendant appeals.
Defendant argues that the trial court erred by concluding that the officers legally entered the apartment because the trial court's findings of fact were insufficient to support the conclusion. Specifically, defendant contends that the trial court erred by concluding that proper notice was given according to N.C. Gen.Stat. § 15A–401(e)(1)(c). We agree.
When reviewing a trial court's order regarding a motion to suppress evidence, this Court is “strictly limited to determining whether the trial court's underlying findings of fact are supported by competent evidence. Assuming that 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.” State v. Clark, 211 N.C.App. 60, 65, 714 S.E.2d 754, 758 (2011)disc. rev. denied,––– N.C. ––––, 722 S.E.2d 595 (2012) (citations, brackets and quotations omitted). Furthermore, only those findings of fact challenged in defendant's brief are reviewable on appeal. Id. After determining that the evidence supports the trial court's findings of fact, this Court determines “whether the trial court's conclusion[s] of law [are] supported by the findings.” Id. (citations omitted).
An officer in possession of an arrest warrant may arrest an individual “at any time and at any place within the officer's territorial jurisdiction.” N.C. Gen.Stat. § 15A–401(a)(1) (2011). However, the officer may enter to execute an arrest warrant when he: (1) “has in his possession a warrant or order or a copy of the warrant or order for the arrest of a person ...” or authorization to arrest without a warrant, (2) “has reasonable cause to believe the person to be arrested is present, and” (3) gives, or makes 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.” N.C. Gen.Stat. § 15A–401(e)(1) (2011).
In the instant case, the trial court made the following relevant findings of fact:
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 suspect[']s 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 officer's testimony, Ms. Howington responded at both times that no one was in the apartment.
The trial court's findings addressed the three prongs of N.C. Gen.Stat. § 15A–401 (e)(1), that (1) the officers had access to warrants for defendant's arrest (2) they had reasonable cause to believe defendant was in the apartment and (3) the officers told Howington they were there to serve warrants on defendant.
On appeal, defendant challenges the trial court's conclusion that the officers were in possession of warrants through NCAWARE, contending that it was necessary for the officers to have paper copies of the warrants. At the hearing, however, defendant did not challenge the manner in which the officers served defendant. Therefore, we decline to review this issue on appeal. See State v.. Smarr, 146 N.C.App. 44, 56, 551 S.E.2d 881, 888 (2001) (“[A] defendant may not assert on appeal a new theory for suppression which was not asserted at trial.”).
Defendant also challenges the portion of finding of fact four indicating that Officer Robinson “verified that [defendant] was present in the apartment.” Defendant contends that because Officer Robinson could not see the door of the apartment, it was impossible for him to verify that defendant was in the apartment, and therefore, the officers did not have reasonable cause to believe defendant was present in the apartment, pursuant to N.C. Gen.Stat. § 15A–401(e)(1)(b). Officer Robinson testified that not only did he receive information that defendant was staying in the apartment but he also observed him in the area prior to 3 May 2011. In addition, Officer Robinson testified that on 3 May, he personally saw him go inside the apartment. While there was some evidence on cross-examination suggesting that the door to the apartment was not visible from Officer Robinson's position, the officer's testimony that he saw defendant enter the apartment provides “adequate evidentiary support,” and thus, it is “conclusive for purposes of appellate review ...” even though there is conflicting evidence. Clark, 211 N.C.App. at 65, 714 S.E.2d at 758 (citation omitted).
Defendant argues that there were insufficient findings to resolve the third requirement of N.C. Gen.Stat. § 15A401 (e)(1), whether the officers gave Howington notice that their purpose in being at her apartment was to serve defendant with warrants. There was conflicting evidence regarding when, or if, the officers informed Howington that they were looking for defendant. Officer Robinson testified that they informed Howington that they were there to serve defendant warrants. Officer Manning testified that Officer Robinson mentioned defendant upon entry into the apartment. However, Howington testified that they only mentioned “Hernandez” to her and never indicated they were there for defendant.
When there are conflicts in the evidence, the trial court's findings of fact must resolve the conflicts. State v. Bell, ––– N.C.App. ––––, ––––, 728 S.E.2d 439, 444 (2012), disc. rev. denied,366 N.C. 393, 732 S.E.2d 482 (2012). “It is well established that a finding reciting a witness' testimony is not adequate to resolve a conflict in the testimony.” Id. In the instant case, the trial court found that the officers testified that they asked for defendant and according to their testimony Howington responded that no one was there. The trial court's finding merely recited the officers' testimony and failed to resolve the conflict of whether they asked for defendant by name.
Since the trial court failed to establish that the officers gave notice of their purpose to Howington prior to their entry, or had authority to enter based on exigent circumstances, the trial court's findings did not adequately address the third requirement of N.C. Gen.Stat. § 15A–401(e)(1). Therefore, the trial court's findings do not support its conclusion that “proper notice was given according to NCGS § 15A–401(e)(1)(c) when Officers Robinson and Manning stated they were looking for ‘Hernandez’ and then [defendant] in reference to arrest warrants, thus making a legal entry into apartment 450 to effect arrest.” Thus, we remand for the trial court to make findings of fact resolving the conflicts in the evidence.
Defendant's motion to suppress evidence also alleged that the search was illegal, contending that evidence obtained as a result of the search “would be fruit of the poisonous tree.” In his memorandum supporting his motion to suppress evidence, defendant indicated that “[i]f the police officer's entry into the defendant's home was illegal, then any subsequent consent search is illegal.” Therefore, any analysis regarding the legality of the search is linked to the legality of the entry. On remand, the trial court should also make findings determining the legality of the entry into the apartment.
Defendant's brief raises numerous other issues. However, as these issues were not presented to the trial court in defendant's motion to suppress evidence or during the hearing, we decline to review them on appeal. See Smarr, 146 N.C.App. at 56, 551 S.E.2d at 888;see also Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934) (“the law does not permit parties to swap horses between courts in order to get a better mount” on appeal).
Since 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). We remand for the trial court to make findings of fact resolving the contested issues regarding whether or not the officers announced their authority as well as their purpose to Howington prior to entering her apartment.
Remanded. Judges ERVIN and DILLON concur.
Report per Rule 30(e).