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Criminal Practice – MAR – Superior Court Judges – Search & Seizure – Traffic Stop

Where the car in which defendant was riding was stopped because its registration was expired and because of an inspection violation, but where the DMV information received by the arresting police detective indicated (1) no inspection violation and (2) that the car was still within the grace period for its registration expiration, appellate counsel’s oversight in failing to make an argument as to the lack of an inspection violation may have led to defendant’s loss in the prior appeal of the denial of his motion to suppress.

We reverse the trial court’s denial of defendant’s motion for appropriate relief (MAR) and remand for a new trial.

When confronted with defendant’s MAR, the superior court judge mistakenly believed that he could not grant the motion because of the rule that one superior court judge may not overrule another. In fact, G.S. § 15A-1413 expressly authorizes a superior court judge to rule on MARs, and judges routinely perform such collateral reviews upon a defendant’s MAR, with the sanction of our appellate courts.

Defendant has shown that his prior appellate counsel’s failure to argue the inspection violation issue was not a strategic decision but was instead inadvertent: Counsel didn’t mention the issue in her appellate brief but raised the argument in her reply brief after the state’s brief noted the inspection violation as an additional justification for the stop. Moreover, appellate counsel’s affidavit explains that the omission was inadvertent.

Had appellate counsel challenged the trial court’s findings of fact concerning the inspection violation, there is a reasonable probability that this court would have concluded that the trial court’s finding that “[t]he stop was initiated because of . . . the inspection violation” was not supported by competent evidence and thus could not support the trial court’s conclusion of the stop’s validity.

Not only did the detective testify that he knew there was a 15-day grace period following expiration of a vehicle’s registration, but the DMV information upon which the detective relied at the time of the stop explicitly provided that the car’s (a Buick) registration was “VALID THRU: 10152014.” The stop occurred on Oct. 6, 2014.

Nevertheless, the detective testified that his oversight regarding the vehicle’s lawful status was due to the fact that “We’re not going to scroll down to check a date being valid or not valid.” That the detectives stopped the Buick for a registration violation despite having intentionally neglected to read the very sentence in which the relevant expiration date appeared renders questionable the reasonableness of any resultant mistake that ensued.

The detectives involved in the stop had an admittedly accurate understanding of the law, which was coupled with information that was readily available to them indicating that the Buick’s registration was still valid. Under these circumstances, there is a reasonable probability that this court would have determined that the facts do not constitute the sort of objectively reasonable mistake of fact tolerable under the Fourth Amendment, and therefore these facts could not serve as a justification for the stop.

The trial court’s conclusion that the detectives “had reasonable suspicion that criminal activity related to narcotics was afoot” was based solely on the facts (1) that the detectives observed defendant and his traveling companion exit a China Bus carrying small bags at the “same bus stop that a lot of heroin is being transported from New York to the Greensboro area” and (2) that while waiting for his ride at the adjacent gas station, defendant briefly looked toward Detective McPhatter’s unmarked vehicle and “shooed [his vehicle] off,” at which point defendant’s ride – the Buick – pulled into the parking lot.

The detectives’ inference of criminal activity from defendant waving off Detective McPhatter’s unmarked vehicle at the gas station was more an inchoate and unparticularized suspicion or hunch, than a fair inference in the light of their experience. And, even when viewed through the officers’ experience that “persons that get on this bus line could possibly be trafficking in narcotics,” the fact that an individual – entirely unknown to officers – is seen carrying “just some small, little luggage bags” while returning on the China Bus from a weekend trip to New York is far too slender a reed to support the seizure in this case.

Accordingly, had appellate counsel challenged the findings of fact in defendant’s prior appeal, there is a reasonable probability that this court would have determined that the trial court also erred in denying defendant’s motion to suppress on the grounds that the detective “had reasonable suspicion that criminal activity related to narcotics was afoot when he stopped the Buick.”

Reversed and remanded.

State v. Baskins (Lawyers Weekly No. 011-252-18, 31 pp.) (Valerie Zachary, J.) Appealed from Guilford County Superior Court (Stuart Albright, J.) Joseph Hyde for the state; Laura Altman and Reid Cater for defendant. N.C. App.

 

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