Opinion
No. 05-459.
Filed April 4, 2006.
Forsyth County No. 01 CRS 9100.
Appeal by defendant from judgment entered 10 August 2004 by Judge Henry E. Frye, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 28 November 2005.
Attorney General Roy Cooper, by Assistant Attorney General Rudy Renfer, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Anne M. Gomez, for defendant-appellant.
Arthur Mayo Woodberry (defendant) was indicted for trafficking in cocaine by transportation, trafficking in cocaine by possession, and conspiracy to traffic in cocaine. Defendant filed a motion to suppress on 5 August 2004. The trial court held a hearing and denied defendant's motion in open court on 10 August 2004. Defendant entered a guilty plea to all charges and expressly reserved the right to appeal the denial of the motion to suppress. The trial court sentenced defendant to 35 to 42 months imprisonment. Defendant filed notice of appeal to this Court on 16 August 2004. The trial court entered its written order denying defendant's motion to suppress on 24 February 2005. The State's evidence at the hearing on defendant's motion to suppress tended to show the following: Renee Melly was an investigator with the Vice and Narcotics Division of the Winston-Salem Police Department. During her time with the Winston-Salem Police Department, Officer Melly had been involved in over 250 narcotics arrests and 50 undercover purchases of narcotics. Officer Melly had used a confidential informant on more than 50 occasions. During December of 2000 Officer Melly was investigating the narcotics activity of a person known as "Cornbread." Following two separate purchases of narcotics from Cornbread, he was served with arrest warrants on 28 February 2001.
Officer Melly and Officer Mike Cardwell spoke to Cornbread and offered him an opportunity to assist the State by providing information about his source of supply. Cornbread stated that he was willing to cooperate with law enforcement authorities and produce his source of narcotics. Cornbread said that his middleman was "Julius" and the source of narcotics was "Art." Cornbread told officers that Julius lived at 912 North Jackson Avenue and drove an older-model, white Chevrolet Celebrity with front-end damage. Cornbread said that Julius and Art would deliver the cocaine to 730 Ferndale Avenue.
In the presence of Officer Melly, Cornbread called Julius on his cellular telephone. Cornbread ordered two and a half onions. Cornbread explained to Officer Melly that an onion is one ounce of cocaine. Officer Melly, with Officer Cardwell and Cornbread as passengers, drove to 912 North Jackson Avenue. Cornbread identified the vehicle and the two occupants he had described earlier, Julius and defendant (known as "Art"). Officer Melly confirmed that the vehicle was the one described by Cornbread and broadcast a description of the vehicle to her police unit.
Officer Melly then drove toward 730 Ferndale Avenue. After receiving a communication that another officer had lost sight of the Chevrolet Celebrity, Officer Melly pulled into a Citgo gas station. Officer Melly observed a Chevrolet Celebrity with the same two occupants moving in the direction of Ferndale Avenue. After receiving a communication from Officer Melly, Officer Stephen Sigmon observed the Chevrolet Celebrity parked by the side of the road in front of 730 Ferndale. Officer Sigmon stopped his patrol car to read the license plate number of the vehicle. He confirmed that the plate number matched the one given by Officer Melly. The vehicle pulled out into the road, and Officer Sigmon activated his lights and siren. The vehicle pulled over on Lambeth Street.
Defendant got out of the passenger side and started walking away. Officer Sigmon asked defendant to stop, but defendant continued to walk away from the vehicle. Officer Melly arrived and twice ordered defendant to stop. Defendant ignored the first command but complied with the second command. After being handcuffed, defendant was searched by Officer Cardwell. The search yielded a cell phone, money, and approximately 60 grams of cocaine. Defendant assigns error to the trial court's conclusions of law that the officers had probable cause to stop the vehicle and to search defendant for cocaine. Defendant has abandoned his assignments of error directed to the trial court's findings of fact. See N.C.R. App. P. 28(b)(6) ("Assignments of error not set out in the appellant's brief, . . . will be taken as abandoned."). We review a ruling on a motion to suppress to determine if the trial court's findings are supported by competent evidence and the findings support the conclusions of law. See State v. Pulliam, 139 N.C. App. 437, 439-40, 533 S.E.2d 280, 282 (2000). Where the defendant does not separately assign error to the findings of fact in the trial court's order, those findings are deemed to be supported by competent evidence. See State v. Roberson, 163 N.C. App. 129, 132, 592 S.E.2d 733, 735-36, disc. review denied, 358 N.C. 240, 594 S.E.2d 199 (2004); Okwara v. Dillard Dep't Stores, Inc., 136 N.C. App. 587, 591, 525 S.E.2d 481, 484 (2000) ("[E]ach contested finding of fact must be separately assigned as error, and the failure to do so results in a waiver of the right to challenge the sufficiency of the evidence to support the finding."). Accordingly, we do not review the evidence supporting the findings here; our review is limited to determining if the trial court's findings support its conclusions of law.
The trial court concluded that the informant "Cornbread" had sufficient indicia of reliability and that, based upon the totality of the circumstances, the officers had probable cause to search defendant for cocaine and to search the vehicle in which defendant had been a passenger. Defendant contends that the officers lacked probable cause because Cornbread did not provide sufficiently reliable information to the officers. Officers may stop and search a motor vehicle on a public roadway if probable cause exists to search the vehicle. See State v. Isleib, 319 N.C. 634, 638, 356 S.E.2d 573, 576 (1987).
When probable cause is based upon an informant's tip, the reviewing court must consider the totality of the circumstances. See Massachusetts v. Upton, 466 U.S. 727, 80 L. Ed. 2d 721 (1984); Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527 (1983). In Gates, the United States Supreme Court rejected the rigid two-part test for informants set forth in its previous opinions in favor of the comprehensive standard applicable to probable cause determinations in general. See Gates, 462 U.S. at 238, 76 L. Ed. 2d at 548 ("[W]e conclude that it is wiser to abandon the `two-pronged test' established by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality-of-the-circumstances analysis that traditionally has informed probable-cause determinations."). Our Supreme Court has adopted the totality of the circumstances approach dictated by Gates and Upton. See State v. Arrington, 311 N.C. 633, 641, 319 S.E.2d 254, 259 (1984).
We now consider whether under the totality of the circumstances, the informant in the instant case was sufficiently reliable to support probable cause that defendant was involved in possession or trafficking of cocaine. Defendant places much emphasis on the fact that Cornbread had not previously been used as an informant. This consideration is relevant, but is only one of many factors in the determination of whether probable cause existed to seize and search defendant. Indeed, the facts of State v. Martinez, 150 N.C. App. 364, 562 S.E.2d 914, disc. review denied, 356 N.C. 172, 568 S.E.2d 859 (2002), are analogous to the facts here. In Martinez, an informant told officers that his drug suppliers were preparing to make a delivery of twenty-five pounds of marijuana to his house. The informant described the vehicle and the two occupants, the location where the vehicle would park, and the time of its arrival. The officers overheard a cellular telephone conversation between the informant and the suppliers. Thereafter, the officers observed the vehicle described by the informant and verified the accuracy of the informant's description of it and its occupants. This Court noted that the informant was not a known informant. See Martinez, 150 N.C. App. at 369, 562 S.E.2d at 917. Nonetheless, the Court determined that probable cause existed because the officers independently verified the information about the defendant provided by the informant. Id.
Here, as in Martinez, the reliability of the informant had to be assessed by officers in real time, as they observed the events unfold. Officers Melly and Cardwell were able to corroborate the information provided by Cornbread. The officers drove to 912 North Jackson Avenue and observed the Chevrolet Celebrity described by Cornbread. Cornbread also identified the two black males in the vehicle as Julius and defendant. The officers observed front-end damage to the vehicle, as described previously by Cornbread. Officers tracked the vehicle as it traveled towards 730 Ferndale Avenue. The vehicle stopped in front of this address, which was provided by Cornbread. The officers' verification of each of these facts demonstrate the reliability of Cornbread as an informant. See State v. Earhart, 134 N.C. App. 130, 134, 516 S.E.2d 883, 886-87 (police corroboration of facts provided by informant is a significant factor in analysis of informant reliability), appeal dismissed, 351 N.C. 112, 540 S.E.2d 372 (1999).
Also, the officers personally observed the informant while he was making the statements about defendant and the sequence of events to follow. The in-person nature of the communications between Cornbread and the officers is significant to the evaluation of the informant's reliability. This Court explained the effect of an in-person interaction between the informant and officers as follows:
Foremost, the tip in this case came through a `face-to-face' encounter rather than by an anonymous telephone call. Under this scenario, [the officer] had an opportunity to observe the demeanor of [the informant] in an effort to assess the reliability of her tip. Furthermore, by engaging [the officer] directly, [the informant] significantly increased the likelihood that she would be held accountable if her tip proved to be false.
State v. Allison, 148 N.C. App. 702, 705, 559 S.E.2d 828, 830 (2002). Here, the officers could observe the demeanor of Cornbread throughout the investigation into defendant's narcotics activities. This factor increased the likelihood that the information provided by Cornbread was accurate.
We hold that the trial court's conclusions are supported by its findings of fact. The court found that Cornbread agreed to assist officers of the Winston-Salem Police Department in apprehending the source of his cocaine supply. Cornbread stated that Julius was his middleman and that defendant was his supplier. Cornbread ordered two and a half ounces of cocaine over his cellular telephone in the presence of Officer Melly. Cornbread told the officers that Julius and defendant would deliver the cocaine to his residence at 730 Ferndale Avenue. Officers Melly and Cardwell drove to 912 North Jackson Avenue, where Cornbread said that defendant and Julius would be located. The officers observed a white Chevrolet Celebrity with damage to one of its front headlights. The car matched the description provided by Cornbread and was parked directly in front of the address given by Cornbread. Cornbread confirmed to the officers that the male in the driver seat was Julius and the male in the passenger seat was defendant. Officer Sigmon received a communication of the description of the car and its occupants. Officer Sigmon followed the car matching the description after it pulled away from 730 Ferndale Avenue. Prior to pulling the car over, Officer Sigmon verified that the license plate number was the number broadcast by Officer Melly. These findings support the conclusion that the officers had probable cause to stop the vehicle in which defendant was a passenger and to search defendant for cocaine. Defendant's assignment of error is overruled.
Next, defendant contends that the trial court's order denying his motion to suppress is null and void because it was entered out of session and out of term. The trial court held a hearing on defendant's motion to suppress on 9 August 2004. After hearing the evidence and arguments by counsel, the court ruled on the motion in open court on 10 August 2004. The court denied the motion, finding that the State had probable cause.
An order of the superior court entered out of session and out of term is null and void unless the court made a ruling on the motion in open court during the session. See State v. Trent, 359 N.C. 583, 614 S.E.2d 498 (2005); State v. Horner, 310 N.C. 274, 311 S.E.2d 281 (1984). In Horner, the defendant made a motion to suppress certain physical evidence that the State intended to introduce at trial. The trial court ruled on the motion to suppress in open court before the expiration of the session. The record indicated that the court ruled on each of the pieces of physical evidence that were addressed in the defendant's motion. The defendant argued that the written order denying the motion to suppress, entered out of session, was a nullity. The Supreme Court distinguished State v. Boone, 310 N.C. 284, 311 S.E.2d 552 (1984), in which the trial judge failed to make a ruling in open court:
The trial judge in Boone left the district and, after the session expired, wrote, signed, and mailed to the clerk the order denying the motion to suppress. Nothing in the trial transcript or record indicated that the trial judge had made his decision on the motion at any time in open court during the session. Here, the trial judge passed on each part of the motion to suppress in open court as it was argued.
Horner, 310 N.C. at 279, 311 S.E.2d at 285.
Here, defendant made a motion to suppress and argued to the trial court that the officers lacked probable cause to stop the vehicle and search defendant. The trial court denied the motion in open court and stated its finding that the officers had probable cause. The court stated that it would enter a written order subsequent to the hearing. As the court ruled on the motion at the time of the hearing, the written order entered out of session and out of term was not null and void. See id. This assignment of error is without merit.
No error.
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).