Whether the trial court erred in denying the defendant's motion for appropriate relief based on ineffective assistance of counsel for failing to file a timely motion to suppress evidence obtained from an unlawful traffic stop

No question identified. : p Q Lunt p, 2D) td ber Renter : . ie ! > a Jf f. P bad [[Z j C CD42. Le, “OY, SL. 6x2 O “Yefa7e sé) g Ay aaridlyk Cu Lo Aa 2) 4m vy Ka, a cm ana M4 f Liha L ‘ Al, tant, AL, ba! / AL) Zl Lenser yf. LED Le WA fe hppnshls LL. {AM Lu ul) : — sapuotedl LAA AAFLEAL Gr. ‘ [LL — 4 SL Ld ZA. C Lat On Durreoft speall As La, g freee ta) Vid L, KA TT, Gorin trtrs Caf Le. C4 a a 2 : Vag LEAMA Z fi zl UM 4 LOW, Zz. me LUD? nlf GAAS p AA ZA / Lope ’ ae ! ae 4-2-1) : Ho Sa CUM AA “4 LAAs LL) Pepf, LO ter, ey Py) LL VW Cary Ko senad ly J aU oo Lin 1) ho rn, Brens — 6A frbresnd7 Ralf yb kf , hn hs Ta! éllray Fille) Arb ag Ke Lb SS 2) 2/19 rr, Brounars t hondusef se, : 7 ' | apn aaah ae Msi a / ee tec masa ~“ s) Mee i Arn’ ct toe tu velit sv Gedeel OP LET eda Dee iP ! ak ob Alligg * tasedirny f stoma auf, ta hi Mahal In April-.2014, Mr..-Brennan was stopped:for a minor traffic : violation failing to signal before turning — by two undercover dru, 2 detectives who were conducting eurveillange on the home of a Haywood County man named Robert Guinn, As soon as the detectives stopped Mr. Brennan they immediately and completely abandoned the mission of the traffic stop — investigation into ‘the traffic violation that warranted the stop — and began a sustained and detailed investigation aimed at detecting evidence of ordinary criminal wrongdoing, The. detectives requested consent to search Mr. Brennan's car. When Mr. Brennan refused consent, he was seized for thirty minutes while the detectives called for back-up and tried to find a canine officer and dog to perform a drug sniff of the car. After prolonged efforts to find an available officer and dog, a canine officer arrived with a dog that alerted to the presence of drugs. The car was searched, and an hour after Mr. Brennan was'stopped he was arrested. . oe | Me. Brennan's trial attorney filed a motion to suppress. However, the motion to suppress was untimely and the trial court dismissed it. Mr. Brennan was convicted and gave notice of appeal. On appeal his ) ' 7 3. appellate: attorney. did -notraise -ithe:«issue of. trial’ counsel’s ineffectiveness for failing to file a timely motion to suppress. ° “Mr. Brennan filed a motion for appropriate relief in Haywood County Superior Court and argued that his ‘trial attorney was ineffective for failing to file a timely motion to suppress. ‘The Honorable : Bradley Letts denied the MAR without hearing after finding that the claim regarding trial counsel's ineffectiveness could have been raised by appellate counsel on direct review. ‘Judge Letts conclusion that Mr. . Brennan’s MAR was procedurally defaulted is legally erroneous in light. of decisions of this Court and of our Supreme Court holding that claims of ‘ineffective assistance of counsel “éannot be raised on direct review, even if counsel's deficient performance is apparent on the face of the record, when the resolution of | ‘the claim requires: further factual | development. . oe oO The recordin Mr. Brennan’s case was not sufficiently developed, to | allow appellate counsel to raise the claim in the direct appeal because a 3 contested hearing regarding the circumstances surrounding the traffic | stop had never been held. Without a fully developed record on the merits of the underlying issue — the constitutionality of the length of the 4 traffic stop — appellate counsel was.not.in a-position to-challenge trial counsel’s ineffectiveness for failing to file-a:timely and meritorious motion to suppress. The record available to appellate counsel regarding , the | traffic stop “consisted of ‘the ‘trial transcript which contained testimony that defendant left a known “drug house, ‘failed to signal before ‘turning, and ‘appeared’ nervous: :Those’factors.do not provide reasonable ‘suspicion ‘to: extend. the: traffic stop.. However, the evidence regarding the'‘testimony of the detectives during’ trial, where‘'the question was one of ‘guilt: or innocerice, not whether ' or: not. the