             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA15-1088

                                Filed: 17 May 2016

Guilford County, No. 14 CRS 88608

STATE OF NORTH CAROLINA

            v.

SANDY KEITH BASKINS


      Appeal by Defendant from order entered 10 July 2015 and judgment entered

14 July 2015 by Judge Susan E. Bray in Superior Court, Guilford County. Heard in

the Court of Appeals 11 April 2016.


      Attorney General Roy Cooper, by Assistant Attorney General Thomas O. Lawton
      III, for the State.

      Marilyn G. Ozer 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 between 6:00 a.m. and 6:30 a.m. on 6 October 2014. Detective
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McPhatter observed Gregory Charles Baskins (“Gregory”) and Tomekia Bone

(“Bone”) exit the bus. At that time, Detective McPhatter was not familiar with either

Gregory or Bone. Both Gregory and Bone were carrying “smaller bags. Just for like

a weekend-type trip, change of clothes.” Detective McPhatter watched Gregory and

Bone enter the store, and then saw Gregory exit the store a couple of minutes later.

After leaving the store, Detective McPhatter observed Gregory walking “backwards”

in his direction, approach to about four parking spaces distance, and “gave a look

inside my car as to see if he knew me or he was trying to . . . see who I was inside the

vehicle. And then he kind of gave me a shoo-off type thing and then kind of walked

back inside the store.”    At approximately the same time, Detective McPhatter

observed a burgundy Buick (“the Buick”) pull into the parking lot of the store. The

driver of the Buick was later determined to be Gregory’s brother, Sandy Keith

Baskins (“Defendant”). Gregory 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

Gregory and Bone inside.

      Detective McPhatter had taken down the license plate number for the Buick,

and he input that information into his mobile terminal, which accessed the

Department of Motor Vehicles (“DMV”) data associated with that license plate

number. According to Detective McPhatter’s testimony, the Buick’s “registration had

. . . expired -- it had expired and it had an inspection violation also.” Detective



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McPhatter 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 relating to the license plate of the Buick was obtained from DMV.

Detective McPhatter did not want to stop the Buick himself because he did not want

Gregory 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 Gregory’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. A printout

of the DMV screen information relied upon by Detective O’Hal was provided to

Detective O’Hal during his testimony:

             [THE STATE:] Want to show you what I’ve marked as
             State’s 1 and 2, couple of communications printouts, and
             just ask you about the information in each of these
             documents. You say when you initially ran the information
             through the Department of Motor Vehicles, it reflected that
             the license itself was expired.

             [DET. O’HAL:] Yeah. The inspection was expired on it.

             [THE STATE:] Okay. And I want to ask about each of


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             these. Let me begin with what I’ve marked as State’s
             Exhibit Number 1. If I may approach, Your Honor.

             THE COURT: Yes.

             [THE STATE:] Can you explain what this first document
             reflects?

             [DET. O’HAL:] This is what I saw on my -- I call it a visual
             MCT or my computer, which was with me that day of the
             stop. And it shows that the customer I.D.’s name or driver’s
             license number, the name of the person that the vehicle is
             registered to, and it says “plate status expired.” And it says
             that it was issued on 9-26-2013 and showed a status of
             being expired.

             ....

             [THE STATE:] And so in layman’s terms . . . State’s Exhibit
             Number 1 . . . reflect[s] the status of the plate and the
             inspection on the date in which it was stopped in State’s 1.

             [DET. O’HAL:] Correct.

             ....

             [THE STATE:] Okay. And that information reflected in
             State’s 1 . . . is the same information that was available to
             you on that particular day.

             [DET. O’HAL:] Yes.

      The communications printout, State’s Exhibit 1, which was the same

information Detective O’Hal relied upon to justify the stop of the Buick, contained the

following two lines of information relevant to this appeal:

             PLT STATUS: EXPIRED
             ISSUE DT: 09262013 VALID THRU: 10152014


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This DMV registration request response printout contained no information indicating

the status of the Buick’s inspection. 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. This was because,

according to N.C. Gen. Stat. § 20-66(g),

             [t]he registration of a vehicle that is renewed by means of
             a registration renewal sticker expires at midnight on the
             last day of the month designated on the sticker. It is
             lawful, however, to operate the vehicle on a highway until
             midnight on the fifteenth day of the month following the
             month in which the sticker expired.

N.C. Gen. Stat. § 20-66(g) (2015).

      Detective O’Hal successfully initiated the stop, and approached Defendant,

who was the driver of the Buick. Detective O’Hal informed Defendant that he had

been stopped due to an expired registration and an inspection violation, and asked

Defendant to produce his driver’s license and registration.     Defendant informed

Detective O’Hal that his license had been revoked. According to Detective O’Hal’s

testimony, while he was talking to Defendant, he noticed Gregory acting very nervous

and sweating profusely.     Detective O’Hal then noticed Gregory 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 Defendant responded

that there were not. Detective O’Hal asked Defendant if he would consent to a search



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of the Buick, and Defendant gave consent. Defendant, Gregory, 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 Gregory and Bone, they, along with Defendant, 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 6 July 2015, and

Defendant’s motion to suppress was denied by order entered 10 July 2015. Defendant

was tried, found not guilty of the conspiracy charge, and found guilty of the two

trafficking charges. Judgment was entered on 14 July 2015, and Defendant received

an active sentence of 225 to 282 months. Defendant specifically preserved his right

to appeal the denial of his motion to suppress.

                                           I.

       Defendant challenges two of the trial court’s findings of fact relating to

Detective O’Hal’s initial stop of the Buick, findings fourteen and eighteen. The

relevant portions of the contested findings are as follows: “Detective McPhatter could



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see the license plate on the Buick, so he ran the number through DMV and learned

the registration had expired, as had the inspection (last inspected 8-31-13). He

relayed that information to the team members.” “[Detective] O’Hal, who had also

confirmed the DMV information about the registration and inspection . . . activated

his lights to stop the Buick.”

      We first address the evidence concerning the Buick’s registration. N.C. Gen.

Stat. § 20-66(g) states:

             When Renewal Sticker Expires. – The registration of a
             vehicle that is renewed by means of a registration renewal
             sticker expires at midnight on the last day of the month
             designated on the sticker. It is lawful, however, to operate
             the vehicle on a highway until midnight on the fifteenth
             day of the month following the month in which the sticker
             expired.

N.C. Gen. Stat. § 20-66(g). The Buick’s license plate had a sticker on it indicating

that the plate was valid until 30 September 2014. By operation of N.C. Gen. Stat. §

20-66(g), it was lawful to operate the Buick until midnight of 15 October 2014. Id. In

accord with N.C. Gen. Stat. § 20-66(g), the communications printout, which was “the

same information that was available to” Detective O’Hal prior to the stop, clearly

stated that the plate registration was: “VALID THRU: 10152014[,]” or 15 October

2014. Detective O’Hal stopped the Buick on 6 October 2014.

      As far as the registration was concerned, Defendant was operating the Buick

lawfully, and Detective O’Hal was provided confirmation of this fact in the



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information he requested and received from DMV. While it might be technically true

that the registration was expired, the trial court’s findings of fact fail to indicate that

the registration was still valid on 6 October 2014, and this information was necessary

for determination of the legitimacy of the stop based upon an alleged registration

violation. Those portions of findings of fact fourteen and eighteen indicating that the

Buick’s registration had expired are supported by substantial record evidence, but

they do not, on these facts, establish that the Buick was being operated in an unlawful

manner.

                                            II.

      Next, we address the findings related to the inspection status of the Buick. It

constitutes an infraction when a person “[o]perates a motor vehicle that is subject to

inspection under this Part on a highway or public vehicular area in the State when

the vehicle has not been inspected in accordance with this Part, as evidenced by the

vehicle’s lack of a current electronic inspection authorization or otherwise.” 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).

      However, as the State concedes, “the inspection violation itself does not appear

on the computer screens that the officers were looking at when they ran the [ ] Buick’s



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license number.” The State argues, however, that “the record contains plain and

direct testimony from both Officer McPhatter and Officer O’Hal that they ran the

tags on the Buick, learned that the registration had expired, and that there was an

inspection violation, because the Buick had last been inspected 31 August 2013[.]” It

is true that Detective O’Hal testified that the information he received from DMV

indicated that the Buick’s inspection was not current. However, Detective O’Hal also

testified that State’s Exhibit 1, a printout of a DMV request for the Buick, was

identical to the information he received on 6 October 2014.      Though it is possible

Detective O’Hal had access to additional information concerning the inspection status

of the Buick, Detective O’Hal testified that he based his stop solely on the information

included in State’s Exhibit 1. If that testimony was correct, then Detective O’Hal

could not have known that the Buick’s inspection was not current.

      The only non-testimonial evidence admitted at the hearing that included

information about the inspection status was a copy of the registration card for the

Buick, which stated: “INSPECTION DUE 09/30/2014.” This evidence cannot have

served as the basis for Detective O’Hal’s testimony that the inspection was out-of-

date for two reasons. First, Detective O’Hal did not have this card before he initiated

the stop. In fact, he apparently did not obtain the card at any time during the stop.

Second, the registration card cannot provide up-to-date information concerning




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whether the Buick had already been inspected for the purposes of registration

renewal. According to N.C. Gen. Stat. § 20-183.4C(a):

               (6) A vehicle that has been [previously] inspected in
               accordance with this Part must be inspected by the last day
               of the month in which the registration on the vehicle
               expires.

               (7) A vehicle that is required to be inspected in accordance
               with this Part may be inspected 90 days prior to midnight
               of the last day of the month as designated by the vehicle
               registration sticker.

N.C. Gen. Stat. § 20-183.4C(a) (2015). The owner of a vehicle has ninety days prior

to the expiration of the inspection within which to have the vehicle inspected.1 There

is no record evidence indicating that Detective O’Hal was provided information

indicating that the Buick had not been properly inspected prior to the 6 October 2014

stop. Again, we recognize that the record may not contain all the relevant evidence

available to Detective O’Hal on 6 October 2014, but our review is limited to the record

evidence in this regard. This record does not contain substantial evidence that the

Buick was being operated with an expired inspection status and, therefore, those

portions of findings of fact fourteen and eighteen stating otherwise are overruled.

                                               III.




       1 Even if the Buick had been inspected after 30 September 2014, but before the stop on 6
October 2014, it would still have been being operating legally as far as its inspection status was
concerned.

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       When ruling on a motion to suppress following a hearing, “[t]he judge must set

forth in the record his findings of facts and conclusions of law.” N.C. Gen. Stat. § 15A-

977(f) (2015). In the present case, the trial court’s order denying Defendant’s motion

to suppress contains no adequate conclusion of law concerning its ruling regarding

the initial stop of the Buick by Detective O’Hal. As our Supreme Court has confirmed,

it is the trial court that must make the required legal rulings in the first instance.

State v. Salinas, 366 N.C. 119, 123-24, 729 S.E.2d 63, 66-67 (2012). When the trial

court has not made all the required determinations:

              Remand is necessary because it is the trial court that “is
              entrusted with the duty to hear testimony, weigh and
              resolve any conflicts in the evidence, find the facts, and,
              then based upon those findings, render a legal decision, in
              the first instance, as to whether or not a constitutional
              violation of some kind has occurred.”

Id. at 124, 729 S.E.2d at 67 (citation omitted); see also State v. Hughes, 353 N.C. 200,

207, 539 S.E.2d 625, 630-31 (2000) (“In examining the case before us, our review is

limited.   It is the trial judge’s responsibility to make findings of fact that are

supported by the evidence, and then to derive conclusions of law based on those

findings of fact.”) (citation omitted).

       In the present case, the trial court entered the following conclusion of law as

its sole conclusion regarding the validity of the initial stop of the Buick:

              The temporary detention of a motorist upon probable cause
              to believe he has violated a traffic law (such as operating a
              vehicle with expired registration and inspection) is not


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             inconsistent with the Fourth Amendment’s prohibition
             against unreasonable searches and seizures, even if a
             reasonable officer would not have stopped the motorist for
             the violation. [citation omitted] [Detective] O’Hal was
             justified in stopping Defendant[s’] vehicle.

      This conclusion consists of a statement of law, followed by the conclusion that

Detective O’Hal was “justified” in initiating the stop.       This conclusion does not

specifically state that the stop was justified based upon any specific violation of a

traffic law. This conclusion intimates that Detective O’Hal was justified in initiating

the stop based upon either the alleged registration violation or the alleged inspection

violation, but it does not actually make any such conclusion. This Court has reviewed

a similar occurrence in State v. McFarland, 234 N.C. App. 274, 758 S.E.2d 457 (2014):

             The “conclusions of law” in the written order were simply
             statements of law[.]

             Generally, a conclusion of law requires “the exercise of
             judgment” in making a determination, “or the application
             of legal principles” to the facts found. Not one of the
             “conclusions” here applied the law to the facts of this case.
             Although we can imagine how the facts as found by the
             trial court would likely fit into the legal standards recited
             in the section of the order which is identified as
             “conclusions of law,” based upon the trial court’s denial of
             the motion, it is still the trial court’s responsibility to make
             the conclusions of law. The mandatory language of N.C.
             Gen. Stat. § 15A–977(f) (“The judge must set forth in the
             record his findings of facts and conclusions of law.”
             (emphasis added)) forces us to conclude that the trial
             court’s failure to make any conclusions of law in the record
             was error.

             “Where there is prejudicial error in the trial court involving


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             an issue or matter not fully determined by that court, the
             reviewing court may remand the cause to the trial court for
             appropriate proceedings to determine the issue or matter
             without ordering a new trial.”

Id. at 283-84, 758 S.E.2d at 464-65 (citations omitted). We remand for further action

consistent with this opinion, including making additional findings of fact and

conclusions of law as necessary. The trial court may, in its discretion, take additional

evidence in order to comply with this holding. See State v. Gabriel, 192 N.C. App.

517, 523, 665 S.E.2d 581, 586 (2008). If the trial court again denies Defendant’s

motion to suppress, Defendant’s convictions stand subject to appellate review. If the

trial court grants Defendant’s motion to suppress, the trial court shall vacate the 14

July 2015 judgment and convictions and Defendant shall be granted a new trial on

the charges of trafficking heroin by possession and trafficking heroin by

transportation.

                                           IV.

      In the event the trial court again denies Defendant’s motion to suppress, based

upon Defendant’s argument that Detective O’Hal improperly initiated the stop of the

Buick due to registration or inspection issues, we address Defendant’s additional

arguments.

                                           A.

      Defendant argues that “the [trial] court erred by concluding reasonable

suspicion [that Defendant was involved in trafficking] existed to stop the [Buick.]”


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We do not address the merits of this argument because the trial court made no such

conclusion.

      Though the order included findings of fact that could have been relevant to a

reasonable suspicion analysis on that issue, there is no discussion in the trial court’s

order concerning reasonable suspicion that Defendant was engaged in criminal

activity; and there is no conclusion, based upon any reasonable suspicion that

Defendant was trafficking illegal drugs or engaged in any other type of criminal

activity, that the stop of the Buick was proper. The only discussion in the order about

the basis for the stop concerned the issues related to registration and inspection

status. If, upon remand, the trial court again upholds the stop of the Buick as proper,

that ruling must be based upon a conclusion that there was reasonable suspicion for

Officer O’Hal to believe the Buick was being operated in violation of registration or

inspection statutes.

                                           B.

      Defendant next argues that “the [trial] court erred by denying Defendant’s

motion to suppress his statements made after the unconstitutional seizure.” We

disagree.

      Subsequent to the K-9 alerting for the possible presence of drugs, and

Defendant and Gregory having been searched, a female officer approached Bone to

search her. T91-92, 214 Bone then voluntarily produced the heroin she had hidden



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in her pants. Detective O’Hal, who was standing near Defendant, was informed that

suspected heroin had been recovered from Bone.            Defendant, who apparently

overheard this exchange, then stated that “[t]he dope wasn’t his, it was a guy named

Maurice Antonio Nichols [(‘Nichols’)] out of High Point and they were just making a

drop for him.”    Following Defendant’s statement, Defendant and Gregory were

handcuffed and placed under arrest.

      The sole conclusion of law related to this issue states: “Defendant[’s] statement

about [ ] Nichols and the drop for him was voluntary. There was no interrogation or

functional equivalent of interrogation. [(Citations omitted).]” The relevant findings

of fact in support of the trial court’s conclusion were the following:

             36. One of the detectives came back to the area where
             [Defendant] and [Gregory] were and said they had found
             narcotics on Bone.

             37. Defendant . . . dropped his head, looked over at his
             brother Gregory and told Officer O’Hal that dope wasn’t his
             that it was for a guy named Maurice Antonio Nichols out
             of High Point, and that they were making a drop for him.

      We hold these findings are supported by substantial evidence, and are

sufficient to support the trial court’s conclusion that Defendant’s statement was

voluntary and not the result of any custodial interrogation. Detective O’Hal testified

that neither he, nor any other officer, asked or said anything to Defendant to elicit

Defendant’s statement.     The evidence supports that Defendant volunteered this

statement in response to an officer informing Detective O’Hal that suspected heroin


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had been recovered from Bone. “Spontaneous statements made by an individual

while in custody are admissible despite the absence of Miranda warnings.” State v.

Stover, 200 N.C. App. 506, 515, 685 S.E.2d 127, 134 (2009) (citation and quotation

marks omitted).

       Defendant further argues that Detective O’Hal, shortly after initiating the stop

of the Buick, improperly questioned him concerning “where he was going [that day].”

T83 However, during the suppression hearing Defendant did not argue that this

statement should be suppressed. Presumably for that reason, the trial court’s order

contains no conclusion of law regarding that statement.        Defendant has waived

appellate review of this argument. State v. Golphin, 352 N.C. 364, 392-93, 533 S.E.2d

168, 191 (2000) (citations omitted) (“Generally, ‘[t]his Court will not consider

arguments based upon matters not presented to or adjudicated by the trial

tribunal.’”).   Assuming arguendo Defendant had preserved this argument for

appellate review, we hold that Defendant’s argument fails.

                                          C.

       In Defendant’s final argument, he contends that the trial court committed

plain error in failing to sua sponte exclude certain testimony of Defendant’s witness,

Mercedes Washington (“Washington”). Assuming arguendo the challenged testimony

of Washington constituted error, we have thoroughly reviewed the record, and hold

that Defendant fails to demonstrate “that, absent the error, the jury probably would



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have returned a different verdict.” State v. Lawrence, 365 N.C. 506, 519, 723 S.E.2d

326, 335 (2012). This argument is without merit.

      NO ERROR IN PART; REVERSED AND REMANDED IN PART.

      Judges STEPHENS and DAVIS concur.




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