STATE OF NORTH CAROLINA
v
.
Forsyth County
No. 01 CRS 9100
ARTHUR MAYO WOODBERRY
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.
ELMORE, Judge.
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. Cornbreadidentified 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 hisassignments 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 searcha 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 thesefacts 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 inapprehending 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 theevidence 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 inopen 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).
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