{ "id": 4220713, "name": "STATE OF NORTH CAROLINA v. RENE REYES HERNANDEZ; STATE OF NORTH CAROLINA v. DAWN MICHELLE DAVIS", "name_abbreviation": "State v. Hernandez", "decision_date": "2013-06-04", "docket_number": "No. COA12-924; No. COA12-1131", "first_page": "601", "last_page": "613", "citations": [ { "type": "official", "cite": "227 N.C. App. 601" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "660 S.E.2d 494", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640877, 12640878, 12640879 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/660/0494-01", "/se2d/660/0494-02", "/se2d/660/0494-03" ] }, { "cite": "362 N.C. 241", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12640873, 12640875, 12640876, 12640877, 12640879, 12640881, 12640786, 12640892 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/660/0492-02", "/se2d/660/0493-01", "/se2d/660/0493-02", "/se2d/660/0494-01", "/se2d/660/0494-03", "/se2d/660/0495-02", "/se2d/659/0004-01", "/se2d/660/0536-01" ] }, { "cite": "649 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639166 ], "year": 2007, "pin_cites": [ { "page": "10", "parenthetical": "dismissing an ineffective assistance of counsel claim asserted on direct appeal without prejudice on the grounds that the Court lacked \"sufficient information regarding trial counsel's strategy\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0001-01" ] }, { "cite": "617 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633690 ], "year": 2005, "pin_cites": [ { "page": "31", "parenthetical": "dismissing an ineffective assistance of counsel claim asserted on direct appeal without prejudice because, \"from the record before the Court, it could only speculate as to why defense counsel chose to argue self-defense\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/617/0001-01" ] }, { "cite": "616 S.E.2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633573 ], "year": 2005, "pin_cites": [ { "page": "509-10" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0500-01" ] }, { "cite": "538 U.S. 986", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9065569, 9065826, 9065057, 9065096, 9065164, 9065006, 9065680, 9065617, 9065941, 9065237, 9065367, 9065755, 9065308, 9065502 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/us/538/0986-09", "/us/538/0986-13", "/us/538/0986-02", "/us/538/0986-03", "/us/538/0986-04", "/us/538/0986-01", "/us/538/0986-11", "/us/538/0986-10", "/us/538/0986-14", "/us/538/0986-05", "/us/538/0986-07", "/us/538/0986-12", "/us/538/0986-06", "/us/538/0986-08" ] }, { "cite": "535 U.S. 1114", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 354625, 353731, 354760, 353448, 352172, 354576, 355188, 353749, 352827, 351828, 354680, 354745, 353947, 354297 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/us/535/1114-11", "/us/535/1114-05", "/us/535/1114-06", "/us/535/1114-02", "/us/535/1114-09", "/us/535/1114-03", "/us/535/1114-10", "/us/535/1114-08", "/us/535/1114-14", "/us/535/1114-07", "/us/535/1114-13", "/us/535/1114-04", "/us/535/1114-12", "/us/535/1114-01" ] }, { "cite": "356 N.C. 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511412, 1511620, 1511326, 1511516 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0623-04", "/nc/356/0623-03", "/nc/356/0623-02", "/nc/356/0623-01" ] }, { "cite": "616 S.E.2d 515", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633574 ], "year": 2005, "pin_cites": [ { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0515-01" ] }, { "cite": "658 S.E.2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640661, 12640662 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/658/0657-01", "/se2d/658/0657-02" ] }, { "cite": "648 S.E.2d 913", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639159 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "917" } ], "opinion_index": 0, "case_paths": [ "/se2d/648/0913-01" ] }, { "cite": "557 S.E.2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "93", "parenthetical": "quoting Fair, 354 N.C. at 167, 557 S.E.2d at 525" } ], "opinion_index": 0 }, { "cite": "354 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138525 ], "year": 2001, "pin_cites": [ { "page": "540", "parenthetical": "quoting Fair, 354 N.C. at 167, 557 S.E.2d at 525" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0534-01" ] }, { "cite": "185 N.C. 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App. 549", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9380605 ], "year": 2001, "pin_cites": [ { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0549-01" ] }, { "cite": "175 S.E. 836", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1934, "pin_cites": [ { "page": "838" } ], "opinion_index": 0 }, { "cite": "207 N.C. 6", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621595 ], "year": 1934, "pin_cites": [ { "page": "10" } ], "opinion_index": 0, "case_paths": [ "/nc/207/0006-01" ] }, { "cite": "372 S.E.2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "518-19", "parenthetical": "citing Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)" } ], "opinion_index": 0 }, { "cite": "323 N.C. 318", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566216 ], "year": 1988, "pin_cites": [ { "page": "321-22", "parenthetical": "citing Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0318-01" ] }, { "cite": "165 L. Ed. 2d 988", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2006, "opinion_index": 0 }, { "cite": "126 S. Ct. 2980", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2006, "opinion_index": 0 }, { "cite": "548 U.S. 925", "category": "reporters:federal", "reporter": "U.S.", "year": 2006, "opinion_index": 0 }, { "cite": "359 N.C. 709", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3802205 ], "year": 2005, "pin_cites": [ { "page": "721" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0709-01" ] }, { "cite": "700 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "88", "parenthetical": "citing State v. Augustine, 359 N.C. 709, 721, 616 S.E.2d 515, 525 (2005), cert denied, 548 U.S. 925, 126 S. Ct. 2980, 165 L. Ed. 2d 988 (2006)" } ], "opinion_index": 0 }, { "cite": "207 N.C. App. 359", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4179404 ], "year": 2010, "pin_cites": [ { "page": "363", "parenthetical": "citing State v. Augustine, 359 N.C. 709, 721, 616 S.E.2d 515, 525 (2005), cert denied, 548 U.S. 925, 126 S. Ct. 2980, 165 L. Ed. 2d 988 (2006)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/207/0359-01" ] }, { "cite": "696 S.E.2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "page": "542-43", "parenthetical": "citations and quotation marks omitted" }, { "page": "543" } ], "opinion_index": 0 }, { "cite": "205 N.C. App. 724", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 3734705 ], "year": 2010, "pin_cites": [ { "page": "725", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/205/0724-01" ] }, { "cite": "362 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150023 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/nc/362/0283-01" ] }, { "cite": "185 N.C. App. 530", "category": "reporters:state", "reporter": "N.C. 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RENE REYES HERNANDEZ STATE OF NORTH CAROLINA v. DAWN MICHELLE DAVIS" ], "opinions": [ { "text": "ERVIN, Judge.\nDefendants Rene Reyes Hernandez and Dawn Michelle Davis appeal from judgments sentencing them to 25 to 30 months imprisonment based upon pleas of guilty to various drug-related offenses. On appeal, Defendants argue that the trial court erred by denying their motions to suppress evidence seized from a motor vehicle owned by Defendant Davis and operated by Defendant Hernandez and from a residence occupied by Defendant Davis. After careful consideration of Defendants\u2019 challenges to the trial court\u2019s order in light of the record and the applicable law, we conclude that Defendants have failed to properly preserve their principal challenge to the trial court\u2019s order for appellate review, that Defendant Davis\u2019 ineffective assistance of counsel claim is not ripe for determination at this time, and that, for these reasons, the trial court\u2019s judgments should remain undisturbed.\nI. Factual Background\nA. Substantive Facts\nAt 7:04 p.m. on 19 March 2011, the Buncombe County Sheriff\u2019s Department received an anonymous phone call asserting that a drug transaction would occur later that evening at a specific mobile home located in Woodfin. According to the caller, 50 pounds of marijuana would be delivered by an Hispanic male to a tan and off-white mobile home which had a large front porch on which a number of children\u2019s bicycles would be situated. The individual making the delivery would be coming from Hendersonville and would be driving a black Chevy Tahoe with tinted windows. According to the caller, an Hispanic male named \u201cRenea\u201d Hernandez and a white female named Dawn Davis would leave the mobile home around 4:00 a.m. in a maroon Honda for the purpose of taking the marijuana into Tennessee via 1-26. The caller also indicated that the maroon Honda was registered to and would be driven by Defendant Davis.\nShortly thereafter, Officer Corey Smith of the Woodfin Police Department traveled to the address provided by the anonymous caller in an attempt to verify the accuracy of the information that had been provided by that individual. Upon arriving at the residence, Officer Smith observed a maroon vehicle sitting outside of the mobile home. In addition, Officer Smith observed an Hispanic male sitting on the couch inside the mobile home. Finally, Officer Smith noticed that the mobile home had a large front porch on which a number of bicycles were situated.\nAlthough certain portions of the information provided by the caller were correct, other portions turned out to be inaccurate. For example, no black Tahoe was parked at the residence. In addition, the maroon vehicle which the officers observed was a 1995 Nissan Maxima rather than a Honda. Finally, the mobile home which Officers Lawrence and Smith observed was blue and white rather than tan and off-white.\nAfter this initial examination of the mobile home and its surroundings, Officer Smith left the area and met up with Officer Lawrence Thomas, also of the Woodfin Police Department, to decide how to proceed. The officers returned to the vicinity of the mobile home at approximately 11:00 p.m. for the purpose of conducting surveillance from a nearby church parking lot. At 3:56 a.m., Officer Smith observed a dark-colored vehicle, which he believed to be the same vehicle that he had observed at the time of his earlier visit, leave the area. At that point, Officer Smith began to follow the vehicle, which began heading west on 1-26.\nAfter confirming that the vehicle in question was a maroon Nissan Maxima registered to Defendant Davis and that it bore the same registration place that had been affixed to the vehicle that he had observed at the mobile home earlier that evening, Officer Smith received information to the effect that Defendant Davis\u2019 operator\u2019s license had been suspended. Although there were two individuals in the maroon Nissan, Officer Smith could not confirm the race, gender, or any other identifying characteristics of the vehicle\u2019s driver due to the distance at which he was following it and the limited light that was available at that time of morning. In spite of the fact that the driver had not committed any traffic violation in his presence, Officer Smith, eventually joined by Officer Lawrence, stopped the vehicle after following it for approximately two and a half miles based upon the fact that Defendant Davis\u2019 operator\u2019s license had expired.\nAfter Officer Smith initiated the stop, he activated his spotlight for the purpose of illiuninating the interior of the vehicle. Upon doing that, Officer Smith was able to determine that the vehicle was occupied by both a male and a female person and that the male occupant was driving. As a result, Officer Smith knew at this point \u201cthat the registered owner was not driving.\u201d\nOfficer Smith then approached the passenger side of the vehicle for the purpose of speaking with Defendant Davis. Upon reaching the vehicle, Officer Smith informed Defendant Davis that he had stopped the car because \u201cthe registered owner\u2019s driver\u2019s license was suspended.\u201d Defendant Davis responded that she was the registered owner of the vehicle and that her male friend was driving the car because her license had been suspended. Next, Officer Smith asked Defendant Davis for the vehicle\u2019s registration card and asked Defendant Hernandez, who had been driving, for his license. After Defendant Hernandez stated that he did not have a driver\u2019s license, Officer Smith told him to turn off the car, hand over the keys, step out of the car, and go to the rear of the vehicle for the purpose of speaking with Officer Lawrence, who had also arrived on the scene.\nAs soon as Defendant Hernandez had complied with this instruction, Officer Smith asked Defendant Davis whether the vehicle contained anything that he needed to know about, including \u201cdrugs, guns, illegal knives, or anything.\u201d In response, Defendant Davis told Officer Smith that there were twenty pounds of marijuana in the car and pointed to the location at which the marijuana was situated. Upon receiving that information, investigating officers searched the vehicle and found some powder cocaine and approximately twenty pounds of marijuana in a garbage bag. After Defendant Davis consented to a search of her residence, investigating officers found a small quantity of marijuana, a pipe, and some rolling papers at that location.\nB. Procedural History\nOn 20 March 2011, magistrate\u2019s orders were issued charging Defendants with trafficking in marijuana by possession, maintaining a vehicle resorted to by persons using controlled substances, and conspiring with each other to traffic in marijuana. On the same date, a magistrate\u2019s order charging Defendant Davis with possession of cocaine and a citation charging Defendant Davis with possession of drug paraphernalia were issued. On 11 July 2011, the Buncombe County grand juiy returned bills of indictment charging Defendants with trafficking in marijuana by transportation, trafficking in marijuana by possession, maintaining a vehicle used for keeping and selling controlled substances, and conspiring with each other to traffic in marijuana by possession and transportation. In addition, the Buncombe County grand jury returned bills of indictment charging Defendant Davis with possession of cocaine and possession of drug paraphernalia.\nOn 10 October 2011, Defendant Hernandez filed a motion seeking to have all of the evidence seized as a result of the search of Defendant Davis\u2019 vehicle and residence suppressed on the grounds that the information provided to investigating officers by the anonymous caller was insufficient to create a reasonable articulable suspicion that criminal activity was afoot. On 8 December 2011, Defendant Davis filed a substantively identical suppression motion. Defendants\u2019 suppression motions came on for a joint hearing before Judge James U. Downs at the 5 December 2011 criminal session of the Buncombe County Superior Court. During the hearing, the State presented the testimony of Officers Lawrence and Smith, who were cross-examined by counsel for Defendant Hernandez. Neither defendant presented any evidence at the suppression hearing.\nAfter all the evidence had been received at the suppression hearing, Judge Downs heard arguments from counsel for the State and Defendants. In the course of seeking to persuade Judge Downs to deny Defendants\u2019 suppression motions, the State argued that the issue raised by Defendants\u2019 suppression motions was controlled by the decision of this Court in State v. Hess, 185 N.C. App. 530, 648 S.E.2d 913 (2007), disc, review improvidently granted, 362 N.C. 283, 658 S.E.2d 657 (2008), given that investigating officers had a reasonable articulable suspicion that Defendant Davis was operating a motor vehicle without a license at the time that they stopped her vehicle. In response, Defendant Hernandez\u2019s trial counsel argued that the justification for the stop advanced by the investigating officers was \u201cnothing more than a pretext;\u201d that the \u201conly reason that [officers] were there that night [was] because of the anonymous tip;\u201d and that the information provided by the anonymous caller did not suffice to establish the reasonable articulable suspicion needed to support a valid traffic stop. Defendant Davis\u2019 trial counsel did not present an argument in support of her suppression motion before Judge Downs. At the conclusion of the suppression hearing, Judge Downs concluded that the investigating officers had' a valid basis for stopping Defendants based upon the fact that Defendant Davis did not have a valid operator\u2019s license and that, given \u201cthe totality of the circumstances,\u201d \u201cthe stop was proper, not in violation of the Fourth Amendment.\u201d\nAfter reserving her right to seek appellate review of the denial of her suppression motion, Defendant Davis entered a plea of guilty as charged on 30 January 2012. Based on Defendant Davis\u2019 guilty pleas, the trial court entered a judgment consolidating Defendant Davis\u2019 trafficking in marijuana by possession and trafficking in marijuana by transportation convictions for judgment and sentencing her to a term of 25 to 30 months imprisonment and a separate judgment consolidating her convictions for conspiracy to traffic in marijuana by possession and transportation, maintaining a vehicle for keeping and selling marijuana, possession of cocaine, and possession of drug paraphernalia for judgment and sentencing her to a concurrent term of 25 to 30 months imprisonment. On the same date, after also reserving his right to seek appellate review of the denial of his suppression motion, Defendant Hernandez entered a plea of guilty as charged. Based on Defendant Hernandez\u2019s guilty pleas, the trial court entered a judgment consolidating Defendant Hernandez\u2019s conspiracy to traffic in marijuana by possession and transportation, maintaining a vehicle for the purpose of keeping or selling controlled substances, and driving without being properly licensed to do so for judgment and sentencing Defendant Hernandez to a term of 25 to 30 months imprisonment and a separate judgment consolidating Defendant Hernandez\u2019s convictions for trafficking in marijuana by possession and trafficking in marijuana by transportation for judgment and sentencing Defendant Hernandez to a concurrent term of 25 to 30 months imprisonment. Defendants noted an appeal to this Court from the trial court\u2019s judgments.\nII. Legal Analysis\nA. Appealability\nAs an initial matter, we note that Defendant Davis\u2019 appellate counsel has petitioned this Court for the issuance of a writ of certiorari authorizing review of her challenges to the trial court\u2019s judgments out of concern that the notice of appeal given by her trial counsel was inadequate. At the time that she noted Defendant Davis\u2019 appeal, Defendant Davis\u2019 trial counsel stated, \u201cMiss Davis gives notice of appeal, also, and asks that the appellate defender be appointed to represent her to appeal the motion to suppress.\u201d\n\u201cAn order finally denying a motion to suppress evidence may be reviewed upon an appeal from a judgment of conviction, including a judgment entered upon a plea of guilty.\u201d N.C. Gen. Stat. \u00a7 15A-979 (b). This Court has held on numerous occasions that a defendant seeking appellate review of an order denying a suppression motion following the entry of a guilty plea is required to note his or her appeal from the trial court\u2019s judgment rather than from the order denying the defendant\u2019s suppression motion. As we noted in one such decision:\nDefendant has failed to appeal from the judgment of conviction and our Court does not have jurisdiction to consider Defendant\u2019s appeal. In North Carolina, a defendant\u2019s right to pursue an appeal from a criminal conviction is a creation of state statute. Notice of intent to appeal prior to plea bargain finalization is a rule designed to promote a fair posture for appeal from a guilty plea. Notice of Appeal is a procedural appellate rule, required in order to give this Court jurisdiction to hear and decide a case. Although Defendant preserved his right to appeal by filing his written notice of intent to appeal from the denial of his motion to suppress, he failed to appeal from his final judgment, as required by N.C. [Gen. Stat.] \u00a7 15A-979(b).\nState v. Miller, 205 N.C. App. 724, 725, 696 S.E.2d 542, 542-43 (2010) (citations and quotation marks omitted). As a result, this Court dismissed the defendant\u2019s appeal. Id. at 726, 696 S.E.2d at 543.\nWe need not, however, reach the issue of whether Defendant Davis\u2019 appeal is subject to dismissal as having been taken from the order denying her suppression motion instead of from the trial court\u2019s judgments given our decision, in the exercise of our discretion, to allow her alternative request for the issuance of a writ of certiorari pursuant to N.C.R. App. P. 21(a) (stating that \u201c[t]he writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action\u201d). Thus, we will now proceed to evaluate the merits of both Defendants\u2019 challenges to the denial of their suppression motions.\nB. Impermissible Extension of an Investigative Detention\nIn challenging the denial of their suppression motions before this Court, Defendants argue that, even though the initial stop of Defendant Davis\u2019 vehicle did not offend applicable constitutional limits, the stop was impermissibly extended given that investigating officers had no justification for continuing to detain Defendants or to question Defendant Davis after determining that Defendant Hernandez, rather than Defendant Davis, had been driving. There is no need for us to address the merits of this contention, however, given that it was never advanced at the suppression hearing held before Judge Downs.\nAccording to well-established North Carolina law, \u201cwhere a theory argued on a[n] appeal was not raised before the trial court],] the argument is deemed waived on appeal.\u201d State v. Davis, 207 N.C. App. 359, 363, 700 S.E.2d 85, 88 (2010) (citing State v. Augustine, 359 N.C. 709, 721, 616 S.E.2d 515, 525 (2005), cert denied, 548 U.S. 925, 126 S. Ct. 2980, 165 L. Ed. 2d 988 (2006)); see also N.C.R. App. P. 10(a)(1) (providing that \u201ca party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling . . . [and] obtain a ruling\u201d). As a result, in a situation in which a defendant argued on appeal that his confession should have been suppressed as the product of an unlawful arrest after asserting an entirely different basis for seeking the suppression of the confession in question before the trial court, the Supreme Court declined to address the defendant\u2019s argument on the merits in reliance upon the principle that a \u201c[defendant may not swap horses after trial in order to obtain a thoroughbred upon appeal.\u201d State v. Benson, 323 N.C. 318, 321-22, 372 S.E.2d 517, 518-19 (1988) (citing Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)). Thus, a criminal defendant is not entitled to advance a particular theory in the course of challenging the denial of a suppression motion on appeal when the same theory was not advanced in the court below.\nAlthough Defendants filed separate suppression motions in the trial court, the sections describing the reasons that the evidence in question should be suppressed were the same in both motions. For that reason, the only issue raised by Defendants\u2019 motions was the extent, if any, to which the information provided by the anonymous caller afforded the investigating officers the reasonable articulable suspicion needed to justify stopping Defendant Davis\u2019 vehicle. During the joint hearing held for the purpose of considering Defendants\u2019 suppression motions, Defendant Hernandez\u2019s trial counsel focused his attention on the sufficiency of the anonymous tip, concluding his argument by stating that \u201cit\u2019s clear that the reason that [Defendants] were pulled on this evening was because of the tip, and we\u2019d ask the corut to suppress it.\u201d Defendant Davis\u2019 trial counsel made no separate argument, apparently opting to rely on the contentions advanced on behalf of Defendant Hernandez. At no point during the suppression hearing did either defendant make an \u201cimpermissible extension\u201d argument such as the one which they seek to assert on appeal. As a result, given that Defendants have advanced an argument before this Court to which they did not allude in the court below, we conclude that their challenge to the trial court\u2019s suppression order has not been properly preserved for appellate review and cannot provide a basis for an award of appellate relief.\nC. Ineffective Assistance of Counsel\nIn addition, Defendant Davis argues that, in the event that her challenge to the denial of her suppression motion as advanced before this Court was not properly preserved for appellate review, she received constitutionally deficient representation from her trial counsel. More specifically, Defendant Davis argues that \u201c[t]here can be no reasonably strategic reason to fail to raise the argument that reasonable suspicion ceased to exist once the officer established that a man, not Ms. Davis, was driving the car\u201d and that she was prejudiced by her trial counsel\u2019s failure to properly preserve the challenge to the seizure of evidence from her vehicle and residence for appellate review. After carefully reviewing the record, however, we conclude that this issue is not ripe for consideration on direct appeal and should be dismissed without prejudice to Defendant Davis\u2019 right to raise it in a subsequent motion for appropriate relief.\nAs a general proposition, \u201cclaims of ineffective assistance of counsel should be considered through motions for appropriate relief and not On direct appeal.\u201d State v. Stroud, 147 N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001), disc, review denied, 356 N.C. 623, 575 S.E.2d 758 (2002).\nIt is well established that ineffective assistance of counsel claims \u201cbrought on direct review will be decided on the merits when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing.\u201d Thus, when this Court reviews ineffective assistance of counsel claims on direct appeal and determines that they have been brought prematurely, we dismiss those claims without prejudice, allowing defendants] to bring them pursuant to a subsequent motion for appropriate relief in the trial court.\nState v. Thompson, 359 N.C. 77, 122-23, 604 S.E.2d 850, 881 (2004) (citation omitted) (quoting State v. Fair, 354 N.C. 131, 166, 577 S.E.2d 500, 524 (2001), cert. denied, 535 U.S. 1114, 122 S. Ct. 2332, 153 L. Ed. 2d 162 (2002)), cert. denied., 546 U.S. 830, 126 S. Ct. 48, 163 L. Ed. 2d 80 (2005). After carefully reviewing the record developed in this case, we believe that Defendant Davis has asserted this ineffective assistance of counsel claim prematurely.\nTo make a successful ineffective assistance of counsel claim, a defendant must show that (1) defense counsel\u2019s \u201cperformance was deficient,\u201d and (2) \u201cthe deficient performance prejudiced the defense.\u201d Counsel\u2019s performance is deficient when it falls \u201cbelow an objective standard of reasonableness.\u201d Deficient performance prejudices a defendant when there is \u201ca reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.\u201d \u201cA reasonable probability is a probability sufficient to undermine confidence in the outcome.\u201d\nState v. Waring, 364 N.C. 443, 502, 701 S.E.2d 615, 652 (2010) (quoting Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064-65, 2068, 80 L. Ed. 2d 674, 693-94, 698 (1984)) (other citation omitted), cert. denied, _ U.S. _, 132 S. Ct. 132, 181 L. Ed. 2d 53 (2011). In considering the merits of ineffective assistance of counsel claims, \u201c[decisions concerning which defenses to pursue are matters of trial strategy and are not generally second-guessed by this Corut.\u201d State v. Prevatte, 356 N.C. 178, 236, 570 S.E.2d 440, 472 (2002), cert. denied, 538 U.S. 986, 123 S. Ct. 1800, 155 L. Ed. 2d 681 (2003).\nAlthough Defendant Davis argues that there is no possible strategic or tactical justification for her trial counsel\u2019s failure to argue that the seizure of the items that she sought to have suppressed resulted from the impermissible extension of a lawful investigatory detention, we are unable to make that determination based on our review of the record that is before us on direct appeal. Ordinarily, the extent to which a defendant\u2019s trial counsel made a particular strategic or tactical decision is a question of fact. E.g. United States v. Cockrell, 720 F.2d 1423, 1426 (5th Cir. 1983) (stating that \u201cthe district court\u2019s determinations of whether counsel\u2019s actions were strategic and reasonable are questions of fact that should govern unless they are clearly erroneous\u201d), reh\u2019g denied, 724 F.2d 926 (5th Cir.), cert. denied, 467 U.S. 1251, 104 S. Ct. 3534, 82 L. Ed. 2d 839 (1984); Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir.) (stating that, \u201c[although the reasonableness of counsel\u2019s decision is best described as a question of law, whether [counsel\u2019s] actions were indeed \u2018tactical\u2019 is a question of fact\u201d), cert. denied, 552 U.S. 1009, 128 S. Ct. 532, 169 L. Ed. 2d 371 (2007); Provenzano v. Singletary, 148 F.3d 1327, 1330 (11th Cir.) (stating that \u201c[t]he question of whether an attorney\u2019s actions were actually the product of a tactical or strategic decision is an issue of fact, and a state court\u2019s decision concerning that issue is presumptively correct\u201d), reh\u2019g en banc denied, 162 F.3d 100 (11th Cir. 1998). However, the present record sheds little or no light on the reason that Defendant Davis\u2019 trial counsel failed to raise the \u201cimpermissible extension\u201d issue at the suppression hearing held before Judge Downs. On the one hand, the \u201cimpermissible extension\u201d issue may simply have not occurred to her. On the other hand, she might have researched the issue in question and determined that such an argument would not have been successful or that the argument actually advanced at the suppression hearing was more likely to succeed than the one upon which Defendant Davis now seeks to rely. In the absence of additional information concerning the nature and extent of Defendant Davis\u2019 trial counsel\u2019s preparation and the defense strategy that she elected to adopt, we cannot determine whether the failure of Defendant Davis\u2019 trial counsel to raise the \u201cimpermissible extension\u201d issue resulted from oversight or from a legitimate strategic or tactical decision without speculating about the answer to questions about which we lack sufficient information. For obvious reasons, this Court should refrain from making such speculative determinations. State v. Gillis, 158 N.C. App. 48, 55, 580 S.E.2d 32, 37-38 (stating that this \u201cCourt is bound on appeal by the record on appeal as certified and can judicially know only what appears in it\u201d), disc, review denied, 357 N.C. 508, 587 S.E.2d 887 (2003); see also, e.g., State v. Al-Bayyinah, 359 N.C. 741, 752-53, 616 S.E.2d 500, 509-10 (2005) (dismissing an ineffective assistance of counsel claim asserted on direct appeal without prejudice because \u201c[t]rial counsel\u2019s strategy and the reasons therefor [were] not readily apparent from the record,\u201d necessitating the development of \u201cmore information ... [in order] to [permit a] determination as to whether] defendant\u2019s claim satisfies the Strickland test\u201d), cert. denied, 547 U.S. 1076, 126 S. Ct. 1784, 164 L. Ed. 2d 528 (2006); State v. Campbell, 359 N.C. 644, 693, 617 S.E.2d 1, 31 (2005) (dismissing an ineffective assistance of counsel claim asserted on direct appeal without prejudice because, \u201cfrom the record before the Court, it could only speculate as to why defense counsel chose to argue self-defense\u201d), cert. denied, 547 U.S. 1073, 126 S. Ct. 1773, 164 L. Ed. 2d 523 (2006); State v. Patel, _ N.C. App. _, _, 719 S.E.2d 101, 110 (2011) (dismissing an ineffective assistance of counsel claim asserted on direct appeal without prejudice on the grounds that this Court was unable to \u201cdetermine from the cold record whether defense counsel in this case had a strategic reason for stipulating that North Carolina has jurisdiction\u201d), disc. review denied, _ N.C. _, 720 S.E.2d 395 (2012); State v. Loftis, 185 N.C. App. 190, 203, 649 S.E.2d 1, 10 (2007) (dismissing an ineffective assistance of counsel claim asserted on direct appeal without prejudice on the grounds that the Court lacked \u201csufficient information regarding trial counsel\u2019s strategy\u201d), disc, review denied, 362 N.C. 241, 660 S.E.2d 494 (2008). The inappropriateness of engaging in such speculation clearly underlies our Supreme Court\u2019s recognition that, in many cases, \u201c \u2018defendants likely will not be in a position to adequately develop many [ineffective assistance of counsel] claims on direct appeal.\u2019 \u201d State v. Long, 354 N.C. 534, 540, 557 S.E.2d 89, 93 (2001) (quoting Fair, 354 N.C. at 167, 557 S.E.2d at 525). As a result, given our determination that additional factual development is needed in order to properly resolve Defendant Davis\u2019 ineffective assistance of counsel claim, we conclude that this claim should be dismissed without prejudice to Ms. Davis\u2019 right to assert it in a subsequent motion for appropriate relief.\nIII. Conclusion\nThus, for the reasons set forth above, we conclude that none of Defendants\u2019 challenges to the trial court\u2019s judgments justify an award of appellate relief. As a result, the trial court\u2019s judgments as to Defendant Hernandez (COA12-924) should, and hereby do, remain undisturbed and the trial court\u2019s judgments as to Defendant Davis (COA12-1131) should, and hereby do, remain undisturbed without prejudice to her right to file and litigate a subsequent motion for appropriate relief raising the ineffective assistance of counsel claim discussed above.\nAFFIRM as to No. COA12-924; AFFIRM IN PART, DISMISSED IN PART as to No. COA12-1131.\nJudges Bryant and Elmore concur.\n. As a result of the fact that these two cases \u201cinvolve common issues of law\u201d and arise out of the same incident, the Court has consolidated them for decision on its own initiative pursuant to N.C.R App. P. 40.\n. At some point, Defendant Hernandez was also charged with driving without being properly licensed to do so. However, no criminal pleading charging Defendant Hernandez with that offense appears in the record.\n. Aside from the argument discussed in the text, Defendant Hernandez contends on appeal, as he did in the court below, that the information communicated to investigating officers during the anonymous call did not suffice to provide investigating officers with the reasonable articulable suspicion needed to support a valid traffic stop. We need not address this argument in any detail, however, given that the trial court\u2019s findings of fact establish that investigating officers stopped Defendant Davis' vehicle because it was registered in her name, her driver\u2019s license was suspended, and they were unable to determine the identity of the driver. As this Court has previously held, investigatory stops made on this basis are lawful. See Hess, 185 N.C. App. at 534, 648 S.E.2d at 917 (holding, consistently with the result reached in the majority of jurisdictions, that, \u201cwhen a police officer becomes aware that a vehicle being operated is registered to an owner with a suspended or revoked driver\u2019s license, and there is no evidence appearing to the officer that the owner is not the individual driving the automobile, reasonable suspicion exists to warrant an investigatory stop\u201d). Thus, Defendant Hernandez\u2019s alternative challenge to Judge Downs\u2019 order lacks merit.\n. Defendant Davis has requested that we excuse her failure to challenge the denial of her suppression motion before the trial court on \u201cimpermissible extension\u201d grounds and to decide that issue on the merits pursuant to our authority under N.C.R. App. R 2 (authorizing an appellate court, in order \u201c[t]o prevent manifest injustice\u201d or \u201cto expedite decision in the public interest,\u201d to \u201csuspend or vary the requirements or provisions of any of these rules\u201d). However, given that this issue was not litigated before the trial court, there is a substantial possibility that the record concerning this issue was not fully developed and certain important factual issues not resolved. As a result, we decline Defendant Davis\u2019 invitation to utilize our authority under N.C.R. App. P. 2 in order to reach the merits of this \u201cimpermissible extension\u201d issue.", "type": "majority", "author": "ERVIN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Richard, E. Slipsky, for the State in response to Defendant Rene Reyes Hernandez.", "Attorney General Roy Cooper, by Assistant Attorney General Martin T. McCracken, for the State in response to Defendant Dawn Michelle Davis.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender S. Hannah Demeritt, for Defendant-Appellant Hernandez.", "Bushnaq Law Office, PLLC, by Faith S. Bushnaq, for Defendant-Appellant Davis." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RENE REYES HERNANDEZ STATE OF NORTH CAROLINA v. DAWN MICHELLE DAVIS\nNo. COA12-924\nNo. COA12-1131\nFiled 4 June 2013\n1. Appeal and Error \u2014 issue not reached \u2014 alternative request for writ of certiorari granted\nThe Court of Appeals allowed defendant Davis\u2019 request for a writ of certiorari pursuant to N.C. R. App. P. 21(a) in a drug case, and thus, did not reach the issue of whether defendant\u2019s appeal was subject to dismissal for having been taken from the order denying her suppression motion instead of from the final judgments.\n2. Appeal and Error \u2014 preservation of issues \u2014 switching theories on appeal not allowed\nAlthough defendants contended that the trial court erred in a drugs case by denying their motions to suppress evidence seized from a motor vehicle owned by defendant Davis and operated by defendant Hernandez and a residence occupied by defendant Davis, a criminal defendant is not entitled to advance a particular theory in the course of challenging the denial of a suppression motion on appeal when the same theory was not advanced in the court below.\n3. Constitutional Law \u2014 effective assistance of counsel\u2014 dismissal of claim without prejudice\nDefendant Davis\u2019 ineffective assistance of counsel claim was not ripe for consideration on direct appeal and was dismissed without prejudice to her right to raise it in a subsequent motion for appropriate relief.\nAppeal by defendants from judgments entered 30 January 2012 by Judge Gary M. Gavenus in Buncombe County Superior Court. Heard in the Court of Appeals 30 January 2013.\nAttorney General Roy Cooper, by Special Deputy Attorney General Richard, E. Slipsky, for the State in response to Defendant Rene Reyes Hernandez.\nAttorney General Roy Cooper, by Assistant Attorney General Martin T. McCracken, for the State in response to Defendant Dawn Michelle Davis.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender S. Hannah Demeritt, for Defendant-Appellant Hernandez.\nBushnaq Law Office, PLLC, by Faith S. Bushnaq, for Defendant-Appellant Davis." }, "file_name": "0601-01", "first_page_order": 611, "last_page_order": 623 }