Opinion
No. COA15-1137
05-03-2016
STATE OF NORTH CAROLINA v. GREGORY CHARLES BASKINS
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Barbara S. Blackman, for Defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Guilford County, No. 14 CRS 88609 Appeal by Defendant from judgment entered 29 April 2015 and order entered 16 July 2015 by Judge Richard S. Gottlieb in Superior Court, Guilford County. Heard in the Court of Appeals 22 February 2016. Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Barbara S. Blackman, for Defendant. McGEE, Chief Judge.
Greensboro Police Department Detective M.R. McPhatter ("Detective McPhatter") was working in a drug interdiction capacity on the morning of Monday, 6 October 2014 when he positioned himself near a Shell gas station with a convenience store ("the store") drop-off point for the China Bus Line. This line ran between Greensboro and New York City and, in the past, Greensboro police had made arrests of people who had transported illegal narcotics on that bus line. Detective McPhatter was wearing plain clothes and waiting in an unmarked car when the bus arrived at the store at between 6:00 a.m. and 6:30 a.m. on 6 October 2014. Detective McPhatter observed Gregory Charles Baskins ("Defendant") and Tomekia Bone ("Bone") exit the bus. At that time, Detective McPhatter was not familiar with either Defendant or Bone. Both Defendant and Bone were carrying small luggage bags, which suggested to Detective McPhatter that "they just went up for the weekend, now they're returning." Detective McPhatter watched Defendant and Bone enter the store, and then saw Defendant exit the store a couple of minutes later. After leaving the store, Detective McPhatter observed Defendant walking in his direction and "kind of take[ ] a peek at me, look[ ] at me. And then he kind of like, you know, shooed me off and walked back into the store." At approximately the same time, Detective McPhatter observed a burgundy Buick ("the Buick") pull into the parking lot of the store. Defendant got into the front passenger side of the Buick and Bone got into the rear right seat. The Buick then left the store's parking lot with Defendant and Bone inside.
Detective McPhatter had taken down the license plate number for the Buick, and he input that information into his "mobile terminal." According to Detective McPhatter's testimony, the Buick "had an expired registration and inspection violation[,]" and he relayed that information to other officers in the area because he wanted to stop the Buick in order to investigate possible drug trafficking activity. The information related to the license plate of the Buick was obtained from a system kept by the North Carolina Department of Motor Vehicles ("DMV"). Detective McPhatter did not want to stop the Buick himself because he did not want Defendant to recognize his vehicle as the same vehicle that had been waiting in the parking lot of the store.
Greensboro Police Department Detective M. P. O'Hal ("Detective O'Hal") was the officer who actually stopped the Buick on the morning of 6 October 2014. Detective O'Hal, who was part of the same drug interdiction squad as Detective McPhatter, had been alerted by Detective McPhatter concerning Defendant's actions at the store. Detective McPhatter had read the Buick's license plate number over the radio, so Detective O'Hal was able to type that information into his mobile service computer and obtain information concerning the license plate from DMV. According to Detective O'Hal's testimony:
[DETECTIVE O'HAL:] [O]n the bottom of the screen, it showed that the [Buick] had an inspection violation and a registration violation on the [Buick].
[THE STATE:] Did you note, at least in your report, anything about the -- the violation itself?
[DETECTIVE O'HAL:] Just that it was -- the [Buick] was last inspected on 8-31 of 2013.
[THE STATE:] And you made mention of this, but I take it you were reviewing a screen from information provided through the Department of Motor Vehicles -
[DETECTIVE O'HAL:] Yes, sir.
[THE STATE:] -- that speaks to the status of both the registration and the inspection.
[DETECTIVE O'HAL:] Yes, sir.
[THE STATE:] And the tag information came back to the same [Buick] that was described by Detective McPhatter.
[DETECTIVE O'HAL:] Yes, sir.
A printout of the DMV screen information relied upon by Detective O'Hal was later introduced by the State at the hearing. This printout contained the following two lines of information relevant to this appeal:
PLT STATUS: EXPIREDThis DMV registration request response printout contained no information indicating the status of the Buick's inspection. When Detective O'Hal was asked if the decision was then made to stop the Buick, he responded: "Yes, sir, for the -- just for the traffic violations." By "traffic violations" Detective O'Hal meant he stopped the Buick based upon his belief that it was being operated with an expired registration and an inspection violation. Detective O'Hal testified that he knew there was a fifteen-day grace period following expiration of a vehicle's registration in which the expired registration remained valid. As indicated in the information provided by DMV, the Buick's registration, though technically expired, was still valid on 6 October 2014, and would remain valid through 15 October 2014. Detective O'Hal testified he stopped reading when he saw that the registration was expired, and therefore he did not know the registration was still valid.
ISSUE DT: 09262013 VALID THRU: 10152014
Detective O'Hal successfully initiated the stop, and approached the driver of the Buick, Sandy Baskins ("Sandy"). Detective O'Hal informed Sandy that he had been stopped due to an expired registration and an inspection violation, and asked Sandy to produce his driver's license and registration. Sandy informed Detective O'Hal that his license had been revoked. According to Detective O'Hal's testimony, while he was talking to Sandy, he noticed Defendant acting very nervous and sweating profusely. Detective O'Hal then noticed Defendant glance at Bone nervously, and Detective O'Hal noticed that Bone was also acting nervous. Detective O'Hal then asked if there were any weapons in the Buick, and Sandy responded that there were not. Detective O'Hal asked Sandy if he would consent to a search of the Buick, and Sandy gave consent. Sandy, Defendant, and Bone all exited the Buick, and Detective O'Hal conducted a sniff search with his drug-trained canine ("K-9"). The K-9 alerted in both the front and rear right-side passenger seats, indicating the possible recent presence of illegal narcotics. Based upon the alert of the K-9, and the behavior of Defendant and Bone, they, along with Sandy, were searched. Approximately six ounces of what was later determined to be heroin was recovered from inside Bone's pants, and the suspects were arrested.
Defendant was indicted on 1 December 2014 for 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 on 27 April 2015. The suppression hearing was conducted on 28 April 2015, and Defendant's motion to suppress was denied by order entered 16 July 2015. Defendant pleaded guilty to all charges, and judgment was entered on 29 April 2015. Defendant specifically preserved his right to appeal the denial of his motion to suppress.
Defendant argues on appeal that the trial court erred in denying his motion to suppress because Detective O'Hal had no reasonable articulable suspicion that the Buick was being operated unlawfully, or that Defendant, Bone, or Sandy were engaged in criminal activity. Because Defendant did not challenge the trial court's findings of fact, we must disagree.
"Generally, an appellate court's review of a trial court's order on a motion to suppress is strictly limited to a determination of whether its findings are supported by competent evidence, and in turn, whether the findings support the trial court's ultimate conclusion." "Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal."State v. White, 232 N.C. App. 296, 301, 753 S.E.2d 698, 701, disc. review denied, 367 N.C. 785, 766 S.E.2d 627 (2014) (citations omitted); see also State v. Styles, 362 N.C. 412, 417, 665 S.E.2d 438, 441 (2008) ("As defendant has not specifically assigned error to this finding of fact, it is not reviewable on appeal."). 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, ___ N.C. App. ___, ___, 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. White, 232 N.C. App. at 301, 753 S.E.2d at 701.
Driving a vehicle without the required up-to-date inspection is an infraction in North Carolina. N.C. Gen. Stat. § 20-183.8(a)(1) (2015). "A law enforcement officer who has probable cause to believe a person has committed an infraction may detain the person for a reasonable period in order to issue and serve him a citation." N.C. Gen. Stat. § 15A-1113(b) (2015). Based upon the trial court's unchallenged findings of fact, Detective O'Hal determined that the Buick was being operated with an expired inspection, and Detective O'Hal initiated the stop of the Buick, in part, on that basis. These findings of fact are sufficient to support the trial court's conclusion that Detective O'Hal "had [probable] cause to stop the Buick based on the information received from the DMV search that . . . an inspection violation had occurred." This argument is without merit.
Our Supreme Court has made clear that reasonable suspicion, not probable cause, is all that is required to justify a stop based on an observed or suspected infraction. Styles, 362 N.C. at 415-16, 665 S.E.2dat 440-41.
In light of our holding above, we do not address Defendant's second argument, that "the trial court erred in concluding that reasonable suspicion existed to stop the car in which [Defendant] was a passenger" because Detective O'Hal "lacked individualized reasonable suspicion" that criminal activity was afoot. We affirm the denial of Defendant's motion to suppress based solely upon the trial court's determination that an inspection violation justified the initial stop of the Buick.
AFFIRMED.
Judges STROUD and ZACHARY concur.
Report per Rule 30(e).