An unpublished opinion of the North Carolina Court of Appeals does not constitute 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. 
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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746 S.E.2d 22, 2013 WL 3131033 (2013) (unpublished) (“Cherry 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 
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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. 
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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. § 15A401(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.
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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 
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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 
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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. § 15A401(e)(1) and denied Defendant’s motion to suppress. Defendant 
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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 
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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. 15A401(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 
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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 
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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. § 15A401(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. § 15A401(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 
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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-bycounty. . . . Once the system is fully 

implemented in all 100 counties, the number 
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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. § 15A401(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 
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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.
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Judges STEELMAN and GEER concur.

Report per Rule 30(e).