An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA09-1639
NORTH CAROLINA COURT OF APPEALS
Filed:
16 November 2010
STATE OF NORTH CAROLINA
v.
Pitt County
No. 08 CRS 55300
JOSEPH MICHAEL KINCER,
Defendant.
Appeal by defendant from judgment entered 18 June 2009 by
Judge W. Russell Duke, Jr., in Pitt County Superior Court.
Heard
in the Court of Appeals 13 May 2009.
Attorney General Roy Cooper, by Assistant Attorney General
Kathryne E. Hathcock, for State.
The Robinson Law Firm, P.A., by Leslie S. Robinson, for
defendant-appellant.
ERVIN, Judge.
Defendant
Joseph
Michael
Kincer
appeals
from
a
judgment
subjecting him to Level 5 punishment based on his plea of guilty to
driving while impaired. After careful consideration of Defendant’s
challenges to the trial court’s judgment in light of the record and
the applicable law, we find no error in the trial court’s judgment.
I. Factual Background
A. Substantive Facts
On 17 May 2008, Sergeant Joseph Collins of the North Carolina
State Highway Patrol signed two Highway Patrol Policy-14 (HP-14)
-2authorization forms documenting his approval of a driver’s license
checkpoint.
According to both forms, the checkpoint was to be
located on Rural Paved Road 1534 in Pitt County for the purpose of
inspecting
drivers’
licenses.1
Among
the
five
troopers
who
actually participated in the operation of the checkpoint were
Sergeant
Collins
and
Trooper
Everett
Deans.
One
HP-14
form
indicated that the checkpoint would operate between 6:00 p.m. and
8:30 p.m. and designated Trooper S.G. Tyndall as the Lead Trooper.
The other HP-14 form stated that the checkpoint would operate from
5:45 p.m. until 8:00 p.m. and designed Trooper S.P. Ziemba as the
Lead Trooper.
Sergeant Collins was unable to explain the reason
that he signed two HP-14 forms or the reason that there were
differences in the contents of the two forms.
Sergeant Collins testified that the designated location, which
was situated at the intersection of the Old Pactolus Highway and
Blue Heron Drive, had not been utilized for checkpoint-related
purposes in recent months and was a “good location for all types of
violations.”
The participating troopers did not erect signs or
markers on either side of the checkpoint in order to advise
approaching
checkpoint.
motorists
that
they
were
nearing
an
authorized
However, the emergency lights on all five patrol
vehicles present at the checkpoint site remained activated during
its
existence.
Participating
troopers
wore
reflective
bearing the letters “SHP” during that period as well.
1
vests
Although
In addition, one of the HP-14 forms stated that the
checkpoint would be located on Rural Paved Road 1534 “near old Hard
Times Building.”
-3Sergeant Collins remained at the checkpoint throughout the entire
period that it was in operation, he did not recall writing any
citations during the time that he was present at the checkpoint.
Sergeant
Collins
told
the
troopers
participating
in
the
checkpoint to stop every vehicle that entered the operation, to
“request a driver’s license, talk with the driver, make sure that
the driver’s license was valid, and observe . . . the interior . .
. and also the exterior of the vehicle.”
The participating
troopers were directed to limit their interactions with the drivers
who entered the checkpoint to the activities set out in the
instructions given by Sergeant Collins and to refrain from asking
for other items of information, such as proof that the driver had
insurance or a specification of the places where the driver had
been or was going.
In addition, participating troopers were
prohibited from searching stopped vehicles in the absence of
independently
violations
obtained
were
reasonable
noticed”
or
suspicion.
unusual
“[I]f
information
other
appeared
on
licenses of drivers entering the checkpoint, participating troopers
were allowed to “follow[] up” by posing additional questions.
At
approximately
7:49
p.m.,
Defendant
approached
the
checkpoint and attempted to drive past Trooper Deans, who was
standing in the roadway.
After being told to stop, Defendant
pulled his vehicle over at a point approximately four or five feet
from the place at which Trooper Deans was standing.
As he
approached the vehicle for the purpose of examining Defendant’s
driver’s license, Trooper Deans immediately detected a strong odor
-4of alcohol. A subsequent chemical analysis revealed that Defendant
had a blood alcohol level of .12.
B. Procedural History
On 17 May 2008, Trooper Deans cited Defendant for driving
while subject to an impairing substance.
On 29 September 2008,
Defendant filed a motion seeking to have evidence “obtained as a
result of the stop of Defendant’s motor vehicle and his subsequent
arrest” suppressed.
On 17 February 2009, Judge Charles M. Vincent
heard Defendant’s case in the Pitt County District Court, denied
Defendant’s suppression motion, convicted him of driving while
impaired, determined that Level Five punishment should be imposed,
and ordered that Defendant be imprisoned for a term of 45 days in
the custody of the Sheriff of Pitt County, with that sentence
suspended for twelve months on the condition that Defendant pay a
$50.00 fine and the costs, perform 24 hours of community service,
obtain a substance abuse assessment and comply with any treatment
recommendations, and surrender his driver’s license and not operate
a motor vehicle until properly licensed to do so.
Defendant noted
an appeal to the Pitt County Superior Court from Judge Vincent’s
judgment.
On 28 April 2009, Defendant filed a motion in the Superior
Court seeking the suppression of evidence “obtained as a result of
the stop of Defendant’s motor vehicle and his subsequent arrest.”
After a hearing held at the 15 June 2009 session of the Pitt County
Superior Court, the trial court announced its decision to deny
Defendant’s suppression motion on 18 June 2009 and entered a
-5written order containing findings of fact and conclusions of law on
22 September 2009, nunc pro tunc to 15 June 2009, that denied
Defendant’s suppression motion.2
On 18 June 2009, Defendant, after
preserving his right to challenge the denial of his suppression
motion on appeal, entered a plea of guilty to driving while
impaired.
Based upon Defendant’s plea, the trial court found him
to be a Level V offender and sentenced him to a minimum and maximum
term of 30 days imprisonment in the custody of the North Carolina
Department of Correction, with this active sentence to be suspended
pending his completion of twelve months unsupervised probation and
the payment of a $100.00 fine and the costs.
Defendant noted an
appeal to this Court from the trial court’s judgment and the denial
of his suppression motion.
II. Legal Analysis
A. Standard of Review
On appeal, Defendant challenges the trial court’s decision to
deny his motion to suppress the evidence obtained as a result of
the fact that he was stopped at the 17 May 2008 checkpoint.
“Our
review of a trial court's denial of a motion to suppress is
strictly limited to a determination of whether [the trial court's]
2
Although this Court has questioned the extent to which a
trial court has the authority to enter a written order containing
findings and conclusions after the entry of judgment, State v.
Veazey, 191 N.C. App. 181, 186-87, 662 S.E.2d 683, 687 (2008),
given that neither party has objected to this Court’s consideration
of the trial court’s written findings and conclusions and given
that the trial court in this case, unlike the situation at issue in
Veazey, did not make oral findings and conclusions at the time that
it announced its decision to deny Defendant’s suppression motion,
we will base our evaluation of Defendant’s appellate challenge to
the trial court’s decision on the trial court’s written order.
-6findings are supported by competent evidence, and in turn, whether
the findings support the trial court's ultimate conclusion.” State
v. Allison, 148 N.C. App. 702, 704, 559 S.E.2d 828, 829 (2002)
(citing State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619
(1982)).
If there is a conflict between the evidence concerning a
material factual issue, it is the duty of the trial court to make
findings resolving the conflict, which will not be disturbed on
appeal
if
they
Chamberlain,
have
307
adequate
N.C.
(citations omitted).
evidentiary
130,
297
143,
support.
S.E.2d
540,
State
548
v.
(1982)
The trial court's conclusions of law are
subject to de novo review.
State v. Haislip, 362 N.C. 499, 500,
666 S.E.2d 757, 758 (2008) (citation omitted).
The critical
inquiry that must be undertaken in connection with the appellate
review of a trial court order granting or denying a suppression
motion is determining “whether the ruling of the trial court was
correct . . . and whether the ultimate ruling was supported by the
evidence.”
State v. Austin, 320 N.C. 276, 290, 357 S.E.2d 641,
650, cert. denied, 484 U.S. 916, 98 L. Ed. 2d 224 (1987) (internal
citation omitted).
If the answer to this question is in the
affirmative, the trial court's conclusions of law are binding on
appeal as well.
55,
57
State v. West, 119 N.C. App. 562, 565, 459 S.E.2d
(citation
omitted),
disc.
review
denied
dismissed, 341 N.C. 656, 462 S.E.2d 524 (1995).
and
appeal
-7B. Legal Analysis
1. Multiple HP-14 Forms
In
challenging
the
trial
court’s
decision
to
deny
his
suppression motion, Defendant first argues that the trial court
erred by finding that the HP-14 form admitted into evidence as
State’s Exhibit No. 1 controlled the operation of the checkpoint in
light of the fact that Defendant introduced a different HP-14 form
into evidence as Defendant’s Exhibit No. 1A and the fact that
Sergeant Collins was unable to explain the reason for the existence
of the two forms.
contain
According to Defendant, the record did not
sufficient
determination
attributable
that
to
evidence
the
an
to
existence
support
administrative
of
the
trial
court’s
the
differing
forms
was
error.
We
not
find
do
Defendant’s argument persuasive.
In denying Defendant’s suppression motion, the trial court
found as a fact that:
2.
Sgt. Collins of the Highway Patrol signed
the
Checking
Station
Authorization
(hereinafter referred to as “HP-14") on
May 17, 2008.
3.
Although there were two HP-14's for the
same location but the times and lead
trooper were different, there was only
one checking station and the HP-14 that
controlled this checkpoint is [S]tate[‘s]
exhibit one which is incorporated by
reference as part of this order.
4.
The two HP-14's were the result of an
administrative error and in no way
prejudiced the defendant.
At the suppression hearing, Sergeant Collins confirmed that he
signed both of the HP-14 forms that were admitted into evidence.
-8According to Sergeant Collins, although State’s Exhibit No. 1
specified
a
different
time
period
for
the
operation
of
the
checkpoint than Defendant’s Exhibit No. 1A, he intended that the
checkpoint operate from 6:00 p.m. to 8:30 p.m.
This evidence,
without more, supports the trial court’s determination that the HP14
form
introduced
into
evidence
as
controlled the 17 May 2008 checkpoint.3
State’s
Exhibit
No.
1
In addition, in light of
Sergeant Collins’ testimony that the HP-14 form introduced into
evidence as State’s Exhibit No. 1 controlled the checkpoint, the
fact that the discrepancies between the two forms were relatively
minor, and the fact that there was no stated explanation for the
discrepancy between the two HP-14 forms contained in the record, it
was not unreasonable for the trial court to conclude that an
administrative error caused the creation of multiple HP-14 forms.
Thus, we conclude that the challenged finding did, in fact, have
adequate record support.
In addition, any error that the trial court may have committed
in its findings relating to the multiple HP-14 forms did not
prejudice Defendant’s chances for a more favorable outcome at the
suppression hearing.
For example, Trooper Deans cited Defendant
for driving while impaired at 7:49 p.m. on 17 May 2008, a point in
time which was within the operating hours specified in both HP-14
forms.
3
In addition, Sergeant Collins testified that, while there
The fact that Trooper Deans testified that he received the
other HP-14 form at the time that he came to the checkpoint and
participated in its operation goes to the weight to be afforded
Sergeant Collins’ testimony, which is a matter for the trial court,
rather than this Court.
-9was usually only one lead trooper involved in the operation of a
specific checkpoint, nothing prohibited the designation of multiple
lead troopers for purposes of such operations. It is difficult for
us to understand how discrepancies such as those at issue here
would serve to render the checkpoint unconstitutional, particularly
given that the primary purpose of the checkpoint, as stated in both
HP-14 forms, was to check drivers’ licenses at Rural Paved Road
1534 on the evening of 17 May 2008.
As a result of these facts and
the fact that “police officers are not constitutionally mandated to
conduct
driver's
license
checkpoints
pursuant
to
written
guidelines[,]” State v. Mitchell, 358 N.C. 63, 68, 592 S.E.2d 543,
546 (2004), we are unable to conclude that any error that the trial
court may have committed in its findings concerning the multiple
HP-14 forms introduced into evidence at the suppression hearing
prejudiced
Defendant.
Thus,
we
reject
Defendant’s
initial
challenge to the trial court’s suppression order.
2. Location of the Checkpoint
Next, Defendant contends that the trial court erroneously
found that the location on Rural Paved Road 1354 was selected for
the
checkpoint
“because
of
the
safety
for
the
officers
and
motorists and previous checking stations had been successful in the
past.”
Although Sergeant Collins expressly testified that the
location in question was one “that we had worked throughout my time
here, since I came to Pitt County” and that “it’s a good location
for all types of violations,” he later testified that the selection
of a checkpoint site was usually made by the lead trooper, that he
-10had not chosen the site at which the 17 May 2008 checkpoint was
conducted, and that he did not know why that site had been selected
or who had selected it. Although the testimony of Sergeant Collins
concerning the reasons underlying the decision to conduct the
checkpoint at Rural Paved Road 1534 does not indicate who made the
selection
decision
and
does
not
mention
the
safety-related
consideration recited in the trial court’s factual findings, N.C.
Gen. Stat. § 20-16.3A(d) explicitly provides that the location at
which a checkpoint is operated “shall not be grounds for a motion
to suppress or a defense to any offense arising out of the
operation of a checking station.” Defendant has not challenged the
constitutionality of N.C. Gen. Stat. § 20-16.3A(d) or otherwise
demonstrated that any deficiencies in the decision concerning the
checkpoint’s location justify suppression of any evidence obtained
as a result of a stop conducted at that checkpoint in light of N.C.
Gen. Stat. § 20-16.3A(d).
As a result, assuming for purposes of
discussion that the trial court erroneously found as a fact that
the checkpoint location was selected for safety-related reasons and
because it had been used successfully in the past, Defendant has
not established that any such error in any way contributed to the
denial of his suppression motion.
3. Constitutionality of the Checkpoint
Thirdly, Defendant challenges the constitutionality of the
checkpoint at which he was stopped on 17 May 2008.
the
Fourth
and
Fourteenth
Amendments
to
the
According to
United
States
Constitution, a search or seizure, including an investigative
-11detention, must be based on either the consent of the person being
searched or on an individualized determination that the search is
supported by probable cause or a reasonable articulable suspicion.
Terry v. Ohio, 392 U.S. 1, 20-22, 20 L. Ed. 2d 889, 905-06 (1968).
The United States Supreme Court has, however, recognized certain
limited
exceptions
to
the
general
rule
requiring
involuntary search have an individualized justification.
that
an
United
States v. Martinez-Fuerte, 428 U.S. 543, 560-62, 49 L. Ed. 2d 1116,
1130-31
(1976).
It
is,
for
example,
permissible
for
law
enforcement officers to briefly detain vehicles at checkpoints if
the purpose of the checkpoint is legitimate and the checkpoint
itself is conducted in a reasonable manner.
Id. at 561-62, 49 L.
Ed. 2d at 1130-31.
“When considering a challenge to a checkpoint, the reviewing
court must undertake a two-part inquiry to determine whether the
checkpoint meets constitutional requirements.”
App. at 185, 662 S.E.2d at 686.
Veazey, 191 N.C.
First, the court must determine
the primary programmatic purpose of the checkpoint.
City of
Indianapolis v. Edmond, 531 U.S. 32, 40-42, 148 L. Ed. 2d 333, 343
(2000).
Secondly, if the checkpoint had a legitimate primary
programmatic purpose, the court must then weigh the public's
interest in the checkpoint against the affected individual's Fourth
Amendment privacy interests.
State v. Jarrett, __ N.C. App. __,
__, 692 S.E.2d 420, 423 (2010) (citing Veazey, 191 N.C. App. at
185-86,
662
S.E.2d
at
686-87).
In
conducting
the
required
balancing inquiry, the court must weigh “[(1)] the gravity of the
-12public concerns served by the seizure, [(2)] the degree to which
the seizure advances the public interest, and [(3)] the severity of
the interference with individual liberty.”
U.S. 47, 51, 61 L. Ed. 2d 357, 362 (1979).
Brown v. Texas, 443
Assuming that a proper
analysis of the relevant factors results in a determination that
the public concerns served by the checkpoint and resulting seizure
outweigh the severity of the interference with individual liberty,
the checkpoint will be upheld against a constitutional challenge.
Illinois v. Lidster, 540 U.S. 419, 427-28, 157 L. Ed. 2d 843,
852-53 (2004).
a. Primary Purpose
According to Defendant, the Highway Patrol’s primary purpose
in establishing the checkpoint was to “engage in the enterprise of
ferreting out crime.”
record
to
checkpoint,
However, “where there is no evidence in the
contradict
a
trial
the
court
State's
may
rely
proffered
on
the
purpose
testifying
officer's assertion of a legitimate primary purpose.”
for
a
police
Veazey, 191
N.C. App. at 187, 662 S.E.2d at 687 (citing State v. Burroughs, 185
N.C. App. 496, 499-500, 648 S.E.2d 561, 565-66 (2007)).
In this
case, all of the evidence tends to show that the checkpoint was
operated for the legitimate purpose of checking motorists’ driver’s
licenses.
See Veazey, 191 N.C. App. at 185, 662 S.E.2d at 686
(stating that a checkpoint that was operated for the purpose of
checking driver’s licenses would not run afoul of the Fourth and
Fourteenth Amendments).
-13On
a
number
of
occasions
during
his
testimony
at
the
suppression hearing, Sergeant Collins described the primary purpose
of the checkpoint as inspecting motorists’ driver’ licenses.
In
addition, Sergeant Collins testified that “[e]very vehicle was to
be stopped;” that participating troopers were only allowed to “make
sure that the driver’s license was valid, and observe the driver[,]
. . . the interior of the vehicle and also the exterior of the
vehicle;” and that, in the event that “[e]verything” appeared
“fine” at the conclusion of this cursory inspection, the driver
would be allowed to proceed on his or her way.
According to
Sergeant Collins, participating troopers were not allowed to ask
the stopped motorists to produce a registration card, there were no
drug dogs present, and no search was conducted as long as a driver
produced a valid license and no other violations were noted.
Similarly, Trooper Deans affirmed that he did not ask drivers
entering the checkpoint for anything other than their drivers’
licenses, that anyone possessing a valid driver’s license was
allowed to proceed through the checkpoint, and that he was never
instructed to look for any additional criminal violations during
the operation of the checkpoint.
Simply put, the record is
completely devoid of any evidence tending to contradict the stated
objective of the checkpoint as described by Sergeant Collins.
Thus, the trial court did not err by concluding that the primary
purpose of the checkpoint was an appropriate one.
-14b. Reasonableness of the Checkpoint
Although Defendant concedes that a checkpoint conducted for
the purpose of checking drivers’ licenses serves a significant
public interest, he disputes the trial court’s conclusion that the
checkpoint at issue here advanced the public interest it was
intended to serve and did not work a severe interference with
individual liberty.
We are unable to agree with Defendant’s
contentions.
First,
the
trial
court’s
factual
findings
and
legal
conclusions reflect a proper consideration of the factors that must
be utilized in ascertaining whether the operation of a checkpoint
properly advanced the relevant public interest.
determination,
which
focuses
upon
whether
the
In making this
checkpoint
is
narrowly tailored toward achieving the relevant public interest,
courts
should
spontaneously
consider
set
up
the
whether
law
checkpoint,
enforcement
whether
law
officers
enforcement
officers explained the reason that a particular location was
selected, whether the checkpoint had a predetermined start and end
time, and whether law enforcement officers explained the reason
that they selected the time frame that was utilized for the
checkpoint.
Veazey, 191 N.C. App. at 191, 662 S.E.2d at 690.
In
addition, the extent to which the checkpoint is appropriately
supervised by superior officers is also relevant to a proper
determination of the reasonableness issue. State v. Rose, 170 N.C.
App. 284, 294-95, 612 S.E.2d 336, 342-43, disc. review denied,
-15appeal dismissed, and cert. denied, 359 N.C. 651, 617 S.E.2d 656
(2005).
Sergeant Collins authorized the checking station by signing an
HP-14 form.
Although the record reflects that a decision to set up
the checkpoint was made and implemented in a relatively short
period of time, there is no indication that the times during which
the checkpoint was in existence were determined for any sort of
arbitrary reason or that appropriate approvals were not obtained.
The instructions given to participating troopers clearly required
them
to
focus
on
identifying
unlicensed
drivers
and
did
not
authorize a general attempt to ferret out any and all types of
criminal activity.
In addition, Sergeant Collins testified that
the participating troopers complied with the plan established for
the checkpoint and that the policies outlined in Directive K.44
were in effect throughout its operation. Although Sergeant Collins
was unable to identify the individual who selected the location for
the checkpoint, his testimony as to the appropriateness of that
location for the purpose of conducting a checkpoint has not been
seriously challenged on appeal.
The undisputed evidence in the
record also establishes, contrary to Defendant’s contention, that
Sergeant Collins was acting in a supervisory role throughout the
entire time that the checkpoint was in operation.
Based on the
testimony received at the suppression hearing, the trial court
found as a fact that:
4
Directive K.4 is the Highway
governing the operation of checkpoints.
Patrol
policy
document
-1615.
The Court further finds that checking
licenses is a lawful primary purpose and
determining whether a person has a valid
drivers license cannot be accomplished
without stopping the vehicle.
16.
The Court after considering the gravity
of the public concern served by the
seizure finds that checking licenses
advances an important purpose.
17.
The Court after considering the degree to
which the seizure advances the public
interest finds that the checking station
was pursuant to a written plan with a
predetermined starting and ending time
and a specified purpose.
18.
The
Court
finds
that
the
plan
appropriately
tailored
the
checking
station to checking licenses.
The trial court’s factual findings are supported by the evidence in
the record and are, therefore, binding upon this Court for purposes
of appellate review.
As a result, we conclude that the trial court
did not err by determining that the operation of the checkpoint was
narrowly tailored to achieve the goal of identifying and dealing
with unlicensed drivers.
Secondly, the trial court, as is required by the third prong
of the test enunciated in Brown, considered “the severity of the
interference with [drivers’] individual libert[ies].”
The primary
issue that must be addressed in connection with this aspect of the
Brown test is whether the checkpoint was conducted “pursuant to a
plan embodying explicit, neutral limitations on the conduct of
individual officers.”
Brown, 443 U.S. at 51, 61 L. Ed. 2d at 362.
For that reason,
[c]ourts have previously identified a number
of non-exclusive factors relevant to officer
-17discretion and individual privacy, including:
the checkpoint's potential interference with
legitimate traffic; whether police took steps
to put drivers on notice of an approaching
checkpoint; whether the location of the
checkpoint was selected by a supervising
official, rather than by officers in the
field; whether police stopped every vehicle
that passed through the checkpoint, or stopped
vehicles pursuant to a set pattern; whether
drivers could see visible signs of the
officers' authority; whether police operated
the checkpoint pursuant to any oral or written
guidelines; whether the officers were subject
to any form of supervision; and whether the
officers
received
permission
from
their
supervising officer to conduct the checkpoint.
Our Court has held that these and other
factors are not “‘lynchpin[s],’ but instead
[are] circumstance[s] to be considered as part
of the totality of the circumstances in
examining the reasonableness of a checkpoint.”
Rose, 170 N.C. App. at 298, 612 S.E.2d at 345.
Veazey, 191 N.C. App. at 193, 662 S.E.2d at 691 (internal citations
omitted). Although Defendant argues that there were no “markers or
signs to [provide] notice [to] the public” at the checkpoint, all
five
officers
consistently
activated
with
the
blue
lights
Directive
K.4,
which
on
their
requires
vehicles
that
all
checkpoints “be marked by signs and/or activated emergency lights,
marked Patrol vehicles parked in conspicuous locations, or other
ways to ensure motorists are aware that an authorized checking
station is being conducted.”
For that reason, there was no
necessity for the participating troopers to post signs or similar
markers in order for the checkpoint to comply with departmental
policy.
In addition, while Defendant suggests that Sergeant
Collins’
presence
at
the
checkpoint
somehow
diminished
his
supervisory authority, we see no basis in the record for concluding
-18that
his
presence
at
and
participation
in
the
checkpoint’s
operation somehow converted him from a supervisor to a line trooper
given the undisputed evidence establishing that he authorized the
checkpoint and provided the participating troopers with their
instructions.
Finally, the instructions given to participating
troopers sharply circumscribed the extent of their discretion to
question
and
checkpoint.
obtain
information
from
motorists
entering
the
As a result, the trial court found that:
19.
The Court after assessing the severity of
the interference with individual liberty
finds that patrol vehicles had their
lights
activated
during
the
entire
checking station, troopers stopped every
vehicle, and a supervisor (Sgt. Collins)
reviewed the plan and was at the checking
station.
In view of the evidence discussed above, we have no hesitation in
determining that the trial court correctly concluded that the
participating
troopers’
ability
to
exercise
investigative
discretion was minimal and that the operation of the checkpoint did
not violate Defendant’s rights under the Fourth and Fourteenth
Amendments.
546
See State v. Mitchell, 358 N.C. at 68, 592 S.E.2d at
(stating
that,
“[b]ecause
police
officers
are
not
constitutionally mandated to conduct driver's license checkpoints
pursuant to written guidelines; because [the officers] received
sufficient supervisory authority to conduct the checkpoint; and
because
the
officers
stopped
all
oncoming
traffic
at
the
checkpoint, we conclude that the checkpoint was constitutional”);
State v. VanCamp, 150 N.C. App. 347, 351, 562 S.E.2d 921, 925
(2002) (upholding the constitutionality of a checkpoint for the
-19purpose of checking driver’s licenses and registrations at which
all vehicles were stopped); State v. Tarlton, 146 N.C. App. 417,
421-23, 553 S.E.3d 50, 53-54 (2001); State v. Grooms, 126 N.C. App.
88, 90, 483 S.E.2d 445, 446 (1997) (holding that a checkpoint for
the purpose of checking drivers’ licenses and attempting to locate
stolen vehicles, and individuals with outstanding arrest warrants
at which all vehicles were stopped was constitutional); State v.
Sanders, 112 N.C. App. 477, 480, 435 S.E.2d 842, 844 (1993)
(finding that a checkpoint for drivers’ licenses at which all
vehicles were stopped was constitutional).
set
forth
above,
we
reject
Thus, for the reasons
Defendant’s
challenge
to
the
constitutionality of the checkpoint.
4. Compliance with State Law Governing Checkpoints
Finally,
Defendant
contends
that
the
State
failed
to
demonstrate that the participating troopers complied with N.C. Gen.
Stat. § 20-16.3A and relevant Highway Patrol policies in conducting
the 17 May 2008 checkpoint.
We disagree.
N.C. Gen. Stat. § 20-16.3A provides, in pertinent part, that:
(a) If
[a
law
enforcement]
agency
is
conducting a checking station for the purposes
of determining compliance with this Chapter,
it must:
. . . .
(2) Designate in advance the pattern
both for stopping vehicles and for
requesting drivers that are stopped to
produce drivers license, registration, or
insurance information.
(2a) Operate under a written policy that
provides guidelines for the pattern,
which need not be in writing. The policy
-20may be either the agency's own policy, or
if the agency does not have a written
policy, it may be the policy of another
law enforcement agency, and may include
contingency
provisions
for
altering
either
pattern
if
actual
traffic
conditions are different from those
anticipated, but no individual officer
may be given discretion as to which
vehicle is stopped or, of the vehicles
stopped, which driver is requested to
produce drivers license, registration, or
insurance information. If officers of a
law enforcement agency are operating
under another agency's policy, it must be
stated in writing.
(3) Advise the public that an authorized
checking station is being operated by
having, at a minimum, one law enforcement
vehicle with its blue light in operation
during the conducting of the checking
station.
(b) An officer who determines there is a
reasonable suspicion that an occupant has
violated a provision of this Chapter, or any
other provision of law, may detain the driver
to further investigate in accordance with law.
. . .
(c) Law enforcement agencies may conduct any
type of checking station or roadblock as long
as
it
is
established
and
operated
in
accordance with the provisions of the United
States Constitution and the Constitution of
North Carolina.
Similarly, Directive K.4 provides that all checkpoints must be
conducted so that:
The site for every checking station shall be
selected with due regard for the safety of
motorists and the members operating the
checking station. Sufficient distance must be
provided to allow a motorist traveling at the
speed limit to stop his/her vehicle in a
normal manner under the existing conditions.
No checking station shall be conducted without
at least two uniformed members present and at
least one marked Patrol vehicle.
-21All checking stations shall be marked by signs
and/or activated emergency lights, marked
Patrol
vehicles
parked
in
conspicuous
locations, or other ways to ensure motorists
are aware that an authorized checking station
is being conducted. Blue lights, on at least
one Patrol vehicle shall be operated at all
times.
With the exception of Special Operations
checking stations, all checking stations shall
provide for the stopping of every vehicle.
Individual members shall not vary from this
policy, except that the member in charge of
the checking station may allow variance from
this requirement if the traffic congestion or
other factors are creating a hazard.
The
member in charge may then authorize all
vehicle to pass through the checking station
until there is no longer a hazard.
Checking stations shall be operated so as to
avoid unnecessary traffic congestion and delay
to motorists.
Adequate area must be available off the
traveled portion of the highway to allow for
the safety of motorists when enforcement
action is taken.
Patrol vehicles must be parked to allow access
to the highway for pursuit in any direction.
Members must maintain radio contact with the
Communications Center.
In addition, Directive K.4 provides, with respect to the operation
of Standard Checking Stations, such as the one at issue here, that:
Members may conduct checking stations to
determine compliance with motor vehicle laws.
Examples for which this type of checking
station may be used[] include[], verification
of drivers’ licenses, vehicle registration
checks, insurance checks, seat belt compliance
checks and driving while impaired.
All checking stations, day or night, shall be
approved, in writing, by a district supervisor
or higher authority.
The supervisor shall
designate
the
purpose,
location
and
-22approximate time of operation of the checking
station. The placement of checkpoints should
be random or statistically indicated, and,
unless statistically indicated, supervisors
shall
avoid
placing
checking
stations
repeatedly in the same location or proximity.
Supervisors shall use Form HP-14 (Checking
Station Authorization) for this purpose.
A supervisor who authorizes establishment of a
checking station shall specify, on the Form
HP-14 whether drivers shall be asked to
produce
a
drivers
license,
proof
of
registration or insurance information or any
combination thereof.
The driver of every
vehicle stopped shall be asked to produce the
document(s) specified and members working the
checking station shall have no discretion to
deviate from this pattern unless the member
has some reasonable suspicion to investigate
further.
. . . .
Standard Checking Stations shall comply with
the
United
States
and
North
Carolina
Constitutions and shall be conducted in
accordance with the provisions of N.C. [Gen.
Stat.] § 20-16.3A.
The evidence contained in the present record establishes that
Sergeant Collins had the authority to authorize the checkpoint. In
addition,
the
undisputed
record
evidence
demonstrates
that
participating troopers were directed to ask the drivers of all
vehicles that entered the checkpoint to produce their licenses and
instructed to do nothing other than to engage the stopped drivers
in a brief conversation, ask to see the stopped drivers’ drivers
licenses, and observe anything that might be in plain view in the
interior of the stopped automobiles.
slightly
different
HP-14
forms
Although there were two
relating
to
the
17
May
2008
checkpoint, we conclude that the discrepancy between these two
-23forms did not result in a deviation from applicable Highway Patrol
policy given that Sergeant Collins signed both forms, that both
forms listed the same location for the checkpoint, that Directive
K.4 only requires that an “approximate time of operation” be
specified, and that Directive K.4 does not mandate the designation
of a specific number of lead troopers.
Motorists approaching the
checkpoint were provided with adequate notice because the blue
lights on all five patrol vehicles present at the checkpoint were
activated throughout the checkpoint’s existence and because each
participating trooper wore a green florescent vest clearly marked
“SHP.”
Finally, the actual stopping of vehicles entering the
checkpoint was conducted in accordance with the instructions that
were given to participating troopers.
As a result, the record
evidence clearly supports the trial court’s conclusion that “the
checking station complied with N.C. Gen. Stat. 20-16.3A” and
establishes that the checkpoint was conducted consistently with
Directive K.4.5
III. Conclusion
Thus, for the reasons set forth above, we conclude that all of
Defendant’s challenges to the trial court’s order denying his
suppression motion lack merit.
Since the only challenges that
Defendant has advanced on appeal relate to the denial of his
5
Admittedly, the trial court’s findings and conclusions make
no express mention of Directive K.4. However, in the absence of
any evidence tending to show that the manner in which the
checkpoint was conducted involved any material deviation from the
requirements set out in Directive K.4, any error that may have
resulted from the trial court’s failure to mention that policy
document did not prejudice Defendant.
-24suppression motion and since we have concluded that the trial court
did not commit any prejudicial error in the course of denying that
motion, we conclude that Defendant is not entitled to any relief on
appeal
and
that
his
conviction
and
undisturbed.
NO ERROR.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
sentence
should
remain
