State v. Baskins

• Citation: 260 N.C.App. 589,818 S.E.2d 381
• Decision Date: 07 August 2018
• Docket Number: No. COA17-1327,COA17-1327
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Gregory Charles BASKINS, Defendant.

260 N.C.App. 589

818 S.E.2d 381

STATE of North Carolina

v.Gregory Charles BASKINS, Defendant.

No. COA17-1327

Court of Appeals of North Carolina.

Filed: August 7, 2018

Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L. Hyde, for the State.

N.C. Prisoner Legal Services, Inc., by Laura E. A. Altman and Reid Cater, for defendant-appellant.

ZACHARY, Judge.

Defendant Gregory Charles Baskins appeals from the trial court's order denying his Motion for Appropriate Relief. We reverse.

Background

Defendant was charged with conspiracy to traffic in heroin, trafficking by possession of 28 grams or more of heroin, and trafficking by transportation of 28 grams or more of heroin. Defendant filed a Motion to Suppress the evidence on the grounds that the initial seizure that resulted in the inculpatory search was unlawful. The trial court denied Defendant's Motion to Suppress, which this Court affirmed in State v. Baskins , No. COA15-1137, 2016 WL 1743400, 2016 N.C. App. LEXIS 465 (" Baskins I "). Defendant thereafter filed a Motion for Appropriate Relief arguing that he received ineffective assistance of appellate counsel in Baskins I . The trial court denied Defendant's Motion for Appropriate Relief. Defendant appeals.

I. The Seizure

The evidence presented at the hearing on Defendant's Motion to Suppress tended to show that, on 6 October 2014, Defendant and his traveling companion Tomekia Bone arrived in Greensboro from New York at 6:30 a.m. on the China Bus. At the time of Defendant's arrival, Detective M.R. McPhatter of the Greensboro Police Department was conducting surveillance of the China Bus stop as part of an interdiction team. Detective McPhatter was surveilling the China Bus stop because he "was aware the China Bus was a known method for individuals to transport narcotics because, among other reasons, there was little screening of passengers or their baggage."

Detective McPhatter observed Defendant and Ms. Bone exit the China Bus carrying small bags. According to Detective McPhatter, he "was aware that individuals who transport narcotics often travel on short, up and back trips to New York and, therefore, travel with only small bags."

While Detective McPhatter watched, Defendant and Ms. Bone went inside the Shell station where Detective McPhatter was parked in an unmarked vehicle. Defendant exited the Shell station after a few minutes and looked toward Detective McPhatter's vehicle. "Defendant then gestured at the vehicle as if to [wave] it off and walked back to the door of the Shell station." Detective McPhatter was not sure whether Defendant was trying to determine whether the unmarked vehicle was his ride, or whether Defendant was trying to determine if a police officer was inside the car. Detective McPhatter radioed the other officers on the interdiction team concerning the occurrence. Shortly thereafter, a Buick pulled into the Shell station and picked up Defendant and Ms. Bone.

Detective McPhatter testified that he ran the Buick's registration on the laptop in his vehicle and learned that the Buick had an expired registration and an inspection violation. However, Detective McPhatter feared that his identity may have been compromised, so he relayed that information to the other detectives and asked them to follow the Buick.

Detective M.P. O'Hal began following the Buick. Detective O'Hal also ran the Buick's tag information and testified that he learned the Buick had an expired registration and an inspection violation. Detective O'Hal testified that at that point he made the decision to stop the Buick. Detective O'Hal approached the vehicle and began conversing with the driver. During that time, Detective O'Hal noticed that Defendant and Ms. Bone appeared very anxious and were sweating heavily.

Detective O'Hal asked the driver for his permission to search the vehicle. The driver consented and the detectives discovered heroin.

II. Motion to Suppress

At the hearing on Defendant's Motion to Suppress, the focus was on the validity of the initial stop of the Buick. At issue was the fact that when the State introduced the DMV information upon which the detectives relied when making the decision to stop the Buick, the DMV information revealed that the Buick's registration was still valid. While technically expired, the DMV printout indicated that the registration was still valid through 15 October 2014:

PLT STATUS: EXPIRED

ISSUE DT: 09262013 VALID THROUGH 10152014

Indeed, the driver was operating the Buick during the fifteen-day grace period within which the vehicle could be lawfully operated pursuant to N.C. Gen. Stat. § 20-66.1. Detective O'Hal testified that he knew there was a fifteen-day grace period following expiration of a vehicle's registration during which the expired registration remained valid. However, Detective O'Hal explained that he stopped reading the DMV printout when he read that the registration was expired, and therefore he did not learn that it was still valid.

Further, while Detective O'Hal testified that he had also stopped the Buick for an inspection violation, the DMV printout contained no information concerning the status of the Buick's inspection.

Nevertheless, in its order denying Defendant's Motion to Suppress, the trial court found that the detectives "ran the license tag information for the Red Buick ... and ... determined that the car had an expired registration and an inspection violation[,]" and that "[t]he stop was initiated because of the expired registration and the inspection violation." The trial court then denied Defendant's Motion to Suppress based upon the following pertinent conclusions of law:

1. The ... registration on the Buick had expired at the time of the stop. North Carolina General Statutes gives officers the authority to issue a citation where probabl[e] cause exists to believe there has been a violation of Chapt. 20 of the General Statutes. N.C.G.S. § 15A-302. Where probable cause exists that a Chapt. 20 violation exists, an officer may stop the vehicle to issue a violation or a warning.

2. The officers had probabl[e] cause to stop the Buick based on the information received from the DMV search that the vehicle's registration had expired and that an inspection violation had occurred. If the officers were mistaken as to whether or not a Chapt. 20 violation existed at the time of the stop, such was a reasonable mistake of law that did not render the stop invalid. Heien v. North Carolina , ––– U.S. ––––, 135 S.Ct. 530 (2014).

3. Considering the totality of the circumstances, Det. O'Hal had reasonable suspicion that criminal activity related to narcotics was afoot when he stopped the Buick, based on the information received from Det. Mc[Ph]atter and his own experience with the circumstances[.]"

Defendant thereafter entered an Alford plea¹ to all charges but preserved his right to appeal the denial of his Motion to Suppress.

III. Baskins I

While the trial court concluded that the initial seizure of the Buick was justified based on (1) the Buick's inspection violation, (2) the Buick's expired registration, and (3) Detective O'Hal's "reasonable suspicion that criminal activity related to narcotics was afoot[,]" Defendant's counsel on appeal in Baskins I challenged only the latter two justifications. Appellate counsel did not challenge any of the trial court's findings of fact. In particular, appellate counsel did not challenge the trial court's findings of fact that the detectives learned of the inspection violation when they ran the Buick's tag information. Thus, despite Defendant's arguments challenging the lack of reasonable suspicion and the reasonableness of the mistake concerning the Buick's registration status, this Court concluded that, "[b]ecause Defendant did not challenge the trial court's findings of fact, we must disagree." Baskins I , 2016 WL 1743400, at *3, 2016 N.C. App. LEXIS 465, at *7. We explained:

As the State correctly points out, Defendant "does not challenge the trial court's findings as to the inspection violation." In fact, Defendant does not specifically challenge any of the trial court's findings of fact, and Defendant does not address the alleged inspection violation in his brief to this Court. In response to the State's brief, Defendant filed a reply brief in which he argues that there was no evidence presented at the suppression hearing indicating that Detective O'Hal could have known the inspection was expired. Though Defendant's argument in his reply brief might have merit, Defendant cannot use a reply brief to introduce new arguments on appeal. State v. Dinan , 233 N.C. App. 694, 698, 757 S.E.2d 481, 485, disc. review denied , 367 N.C. 522, 762 S.E.2d 203 (2014) (citation omitted) ("[A] reply brief is not an avenue to correct the deficiencies contained in the original brief. See N.C.R. App. P. 28(b)(6) [.]"). Further, even in his reply brief, Defendant failed to challenge the following findings of fact:

5. Det. McPhatter ran the registration for the ... Buick on the laptop in his vehicle and learned that the Buick had an expired registration and an inspection violation. He communicated this information to other, assisting detectives and, because he was concerned that his identity had been compromised, he asked other detectives to follow the ... Buick so he could stay back a distance.

... 8. Det. O'Hal also ran the license tag information for the ... Buick relayed by Det. McPhatter and also determined that the [Buick] had an expired registration and an inspection violation.

...

10. The stop was initiated because of the expired registration and the inspection violation.

Because Defendant does not challenge these findings of fact, they are binding on appeal. [State v. ] White , 232 N.C. App. [296] at 301, 753 S.E.2d [698] at 701 [ (2014) ].

Driving a vehicle without the required up-to-date inspection is an infraction in North Carolina. N.C. Gen. Sat. § 20-183.8(a)(1) (2015). "A law enforcement officer who has probable cause to believe a

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