State v. Kostick , 233 N.C. App. 62 ( 2014 )

NO. COA13-873
NORTH CAROLINA COURT OF APPEALS
Filed: 18 March 2014
STATE OF NORTH CAROLINA
v. Swain County
No. 10 CRS 277
STEVEN CLARK KOSTICK,
Defendant.
Appeal by defendant from judgment entered 22 February 2013
by Judge James U. Downs in Swain County Superior Court. Heard
in the Court of Appeals 11 December 2013.
Attorney General Roy Cooper, by Special Deputy Attorney
General Neil Dalton and Assistant Attorney General Kathryne
E. Hathcock, for the State.
McLean Law Firm, P.A., by Russell L. McLean, III, for
defendant-appellant.
BRYANT, Judge.
Pursuant to the Tribal Code of the Eastern Band of the
Cherokee Indians and mutual compact agreements between the Tribe
and other law enforcement agencies, the North Carolina Highway
Patrol has authority to patrol and enforce the motor vehicle
laws of North Carolina within the Qualla boundary of the Tribe,
including authority to arrest non-Indians who commit criminal
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offenses on the Cherokee reservation. Our State courts have
jurisdiction over the criminal offense of driving while impaired
committed by a non-Indian, even where the offense and subsequent
arrest occur within the Qualla boundary of the Cherokee
reservation. A defendant’s Knoll motion is properly dismissed
where the magistrate follows N.C. Gen. Stat. § 15A-511(b) and
any deviation from the statutory requirements is not prejudicial
to defendant.
On 24 April 2010, the Cherokee Harley Davidson Rally (the
“rally”) was held at the fairgrounds in Cherokee, North
Carolina. As part of a cooperative agreement between the Eastern
Band of the Cherokee Indians (the “Tribe”) and Swain County
police departments and the North Carolina State Highway Patrol
(“State Highway Patrol”), Swain County and State Highway Patrol
officers assisted the Cherokee police officers in patrolling the
rally, setting up and administering checkpoints, and providing
assistance as needed. Checkpoints were established at the roads
leading into and out of the fairgrounds, Drama Road/State
Highway 1361 and State Highway 441, and were run by a
combination of Cherokee and Swain County police officers. The
checkpoints were intended to check all vehicles leaving the
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rally for potential driving while impaired (“DWI”), driver’s
license, insurance, and unsafe driving violations.
That evening at around 10:00 p.m., defendant Steven Clark
Kostick (“defendant”) left the rally’s parking lot and
encountered a checkpoint on Drama Road. After rolling two car
lengths past Cherokee Officer Dustin Wright who signaled for
defendant to stop, defendant stopped his vehicle. As Officer
Wright approached the vehicle, he immediately noticed an odor of
alcohol and saw two open cans of beer in the car’s center
console cup holders. Officer Wright also noticed that a woman
sitting in the front passenger seat of the vehicle was crying.
Officer Wright directed defendant to return his vehicle to the
parking lot and called for an available officer to come and
conduct an investigation of defendant.
The responding officer was State Highway Patrol Trooper Jim
Hipp who took over the investigation of defendant at the request
of Officer Wright. After noticing that defendant smelled of
alcohol, had red, glassy eyes, slurred speech, and an unsteady
gait, Trooper Hipp conducted four field sobriety tests and
concluded that defendant was likely intoxicated. Defendant told
Trooper Hipp that he had consumed four to five beers that
evening, and then admitted to having a handgun in his truck.
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The woman in defendant’s car was driven by another officer back
to the vacation cabin where she was staying with defendant.
Trooper Hipp arrested defendant on suspicion of DWI.
Defendant was taken to the Swain County jail where he blew a
0.15 on a Breathalyzer test. Defendant was arraigned by a
magistrate after being charged with DWI and was ordered to be
held on a $500.00 secured bond. Defendant was released from the
Swain County jail around 4 a.m. on 25 April 2010 after posting
bail.
On 24 November 2011, defendant filed handwritten motions to
suppress (entitled “Motion to Suppress Stop and Arrest;” “Motion
to Suppress”). On 2 December 2011, defendant filed a motion to
dismiss alleging lack of jurisdiction over defendant’s arrest.
The trial court denied all of defendant’s motions, and on 6
April 2011, defendant was convicted of DWI in District Court.
Defendant appealed his conviction to the Superior Court.
On 8 December 2011, defendant filed a new motion to dismiss
alleging that the State Highway Patrol had no arrest authority
within the Cherokee reservation and that defendant was on
Cherokee, rather than State, property at the time of his arrest.
Defendant further moved to suppress the evidence regarding the
checkpoint stop and made a Knoll motion alleging that the
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magistrate did not properly inform defendant of his right to
contact counsel and friends upon his arrest. At a pretrial
hearing on 20—21 February 2013, defendant’s motions were denied.
On 22 February 2013, a jury convicted defendant of DWI.
Defendant appeals.
_______________________________
On appeal, defendant challenges (I) the subject matter
jurisdiction of the trial court, including whether the road on
which defendant was stopped was a North Carolina state road,
whether the North Carolina Highway Patrol had arrest authority,
and whether the trial court erred in denying defendant’s pre-
trial motion to dismiss the DWI charges; (II) whether the
roadblock set-up by the Cherokee Police Department was
constitutional; and (III) the trial court’s failure to grant
defendant’s Knoll motion to dismiss the DWI citation.
Motion to Dismiss
On 2 October 2013, the State filed a motion to dismiss
defendant’s appeal, arguing that defendant failed to properly
preserve his appeal. Specifically, the State contends that the
record on appeal is insufficient because defendant failed to
include a complete trial transcript to show that defendant
properly renewed his pretrial objections at trial as to subject
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matter jurisdiction, suppression of evidence from the checkpoint
and a Knoll violation, and that without proof that defendant did
renew his objections at trial, those objections cannot be deemed
to be preserved on appeal. Defendant, on the other hand,
counters that he “has preserved each and every issue on appeal.”
Pursuant to our Rules of Appellate Procedure, “[t]he record
on appeal in criminal actions shall contain . . . so much of the
litigation, set out in the form provided in Rule 9(c)(l), as is
necessary for an understanding of all issues presented on appeal
. . . .” N.C. R. App. P. 9(a)(3)(e) (2013).
In order to preserve an issue for appellate
review, a party must have presented to the
trial court a timely request, objection, or
motion, stating the specific grounds for the
ruling the party desired the court to make
if the specific grounds were not apparent
from the context. It is also necessary for
the complaining party to obtain a ruling
upon the party’s request, objection, or
motion. Any such issue that was properly
preserved for review by action of counsel
taken during the course of proceedings in
the trial tribunal by objection noted or
which by rule or law was deemed preserved or
taken without any such action, including,
but not limited to, whether the judgment is
supported by the verdict or by the findings
of fact and conclusions of law, whether the
court had jurisdiction over the subject
matter, and whether a criminal charge is
sufficient in law, may be made the basis of
an issue presented on appeal.
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N.C. R. App. P. 10(a)(1) (2013). Where a defendant does not
preserve an issue for appeal, that issue may only then be
appealed by claiming plain error pursuant to N.C. R. App. P.
10(a)(4). State v. Waring, 364 N.C. 443, 467—68, 701 S.E.2d
615, 631—32 (2010).
The State contends that defendant’s appeal should be
dismissed in its entirety because by not providing a complete
trial transcript the record on appeal is insufficient. At the
pretrial hearing, defendant raised three motions: a motion to
dismiss for lack of subject matter jurisdiction; a motion to
suppress evidence from the checkpoint; and a Knoll motion.
A. Defendant’s motion to dismiss for lack of subject matter
jurisdiction
Defendant provided a trial transcript for the pretrial
hearing of 20—21 February 2013 but did not provide the
transcript for his jury trial on 22 February 2013. However, a
determination of subject matter jurisdiction does not require
the presence of a complete trial transcript, as “[j]urisdiction
has been defined as ‘the power to hear and to determine a legal
controversy; to inquire into the facts, apply the law, and to
render and enforce a judgment[.]’" High v. Pearce, 220 N.C.
266, 271, 17 S.E.2d 108, 112 (1941) (citation omitted). As
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such, defendant’s failure to include a trial transcript for his
jury trial on 22 February 2013 does not negate his appeal
regarding his motion to dismiss for lack of subject matter
jurisdiction. See N.C. R. App. P. 10(a)(1). The State’s motion
to dismiss defendant’s appeal as it relates to the issue of
subject matter jurisdiction must, therefore, be denied.
B. Defendant’s motion to suppress evidence from the checkpoint
[A] motion in limine is insufficient to
preserve for appeal the question of the
admissibility of evidence if the defendant
fails to further object to that evidence at
the time it is offered at trial. Rulings on
motions in limine are preliminary in nature
and subject to change at trial, depending on
the evidence offered, and thus an objection
to an order granting or denying the motion
is insufficient to preserve for appeal the
question of the admissibility of the
evidence.
State v. Reaves, 196 N.C. App. 683, 686, 676 S.E.2d 74, 77
(2009) (citation omitted).
Defendant made a pretrial motion to suppress evidence
regarding the checkpoint and DWI arrest. However, defendant
omitted the transcript of his jury trial; therefore, we have no
objective means of ascertaining whether defendant renewed his
motion to suppress at trial. "[A] pretrial motion to suppress,
a type of motion in limine, is not sufficient to preserve for
appeal the issue of admissibility of evidence . . . .
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[Therefore, a] defendant waive[s] appellate review of this issue
by failing to object during trial to the admission" of the
challenged evidence. State v. Grooms, 353 N.C. 50, 66, 540
S.E.2d 713, 723 (2000) (citation omitted). Defendant, however,
points to the record of the pretrial hearing; there the trial
court denied his motion to suppress and noted defendant’s
“exception” to the trial court’s ruling. Further, defendant
points to an agreement between the State and defendant that the
pretrial hearing transcript would be sufficient for purposes of
defendant’s appeal. This agreement is part of the record on
appeal.1 Therefore, even if defendant’s issue is not properly
preserved, to prevent manifest injustice to defendant we
1
The Settlement of Transcript, which is signed by counsel for
both the State and defendant and dated 14 March 2013, states
that:
NOW COMES the undersigned attorneys on
behalf of the Plaintiff, State of North
Carolina and the Defendant, Steven Kostick
as evidenced by their signatures hereto, and
agree that the court reporter who
transcribed the proceedings is only required
to transcribe all motions to suppress for
lack of subject matter jurisdiction and that
the trial transcript need not be transcribed
since the Defendant is only appealing the
court’s subject matter jurisdiction over the
Defendant to the North Carolina Court of
Appeals.
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exercise our authority pursuant to Rule 2 and hear defendant’s
appeal of this issue.
C. Defendant’s Knoll motion
A Knoll motion, based on State v. Knoll, 322 N.C. 535, 369
S.E.2d 558 (1988), alleges that a magistrate has failed to
inform a defendant of the charges against him, his right to
communicate with counsel, family, and friends, and the general
conditions he must meet for pretrial release pursuant to N.C.
Gen. Stat. § 15A-511 (2013). "If there is a conflict between
the state's evidence and defendant's evidence on material facts,
it is the duty of the trial court to resolve the conflict and
such resolution will not be disturbed on appeal." State v.
Lewis, 147 N.C. App. 274, 277, 555 S.E.2d 348, 351 (2001)
(citation omitted).
Here, the trial court heard arguments by both sides and
made its findings of fact and conclusions of law during the
pretrial hearing; therefore, a transcript of defendant’s jury
trial is not necessary for our review of his Knoll motion. See
id.; Knoll, 322 N.C. 535, 369 S.E.2d 558. Accordingly, the
State’s motion to dismiss defendant’s Knoll motion is denied.
_________________________________
I.
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Subject Matter Jurisdiction
A. North Carolina road
Defendant first argues that the trial court erred in
finding that the road on which defendant was stopped was a North
Carolina state road. Specifically, defendant contends that the
road on which he was stopped, Drama Road, is on federal land
because it is controlled by the Tribe, and thus, the State had
no authority to stop and arrest defendant while he was driving
on it. Defendant’s argument as to whether the road is
controlled by the State or the Tribe lacks merit, as our State
Highway Patrol enjoys an existing compact with the Tribe to
assist with patrolling and enforcing roads within this state.
“[T]he Constitution grants Congress broad general powers to
legislate in respect to Indian tribes, powers that we have
consistently described as ‘plenary and exclusive.’” United
States v. Lara, 541 U.S. 193, 200 (2004) (citations omitted).
Congress has defined Indian country as
(a) all land within the limits of any Indian
reservation under the jurisdiction of the
United States Government . . . including
rights-of-way running through the
reservation, (b) all dependent Indian
communities within the borders of the United
States whether within the original or
subsequently acquired territory thereof, and
whether within or without the limits of a
state, and (c) all Indian allotments, the
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Indian titles to which have not been
extinguished, including rights-of-way
running through the same.
18 U.S.C. § 1151 (2012). Indian tribes retain "attributes of
sovereignty over both their members and their territory."
United States v. Mazurie, 419 U.S. 544, 557 (1975). "[T]ribal
sovereignty is dependent on, and subordinate to, only the
Federal Government, not the States." Washington v. Confederated
Tribes of the Colville Indian Reservation, 447 U.S. 134, 154
(1980). “[S]tate laws may be applied to tribal Indians on their
reservations if Congress has expressly so provided.” Cal. v.
Cabazon Band of Mission Indians, 480 U.S. 202, 207 (1987).
Federal recognition of the [Cherokee]
Eastern Band as an Indian tribe has at least
two major implications for the issue of
state jurisdiction: (1) the federal
government continues to maintain plenary
power over the Eastern Band, a fact which
strictly limits extensions of state power,
and (2) the Eastern Band, like all
recognized Indian tribes, possesses the
status of a "domestic dependent nation" with
certain retained inherent sovereign powers.
Wildcatt v. Smith, 69 N.C. App. 1, 5—6, 316 S.E.2d 870, 874
(1984) (citations omitted). An Indian tribe may engage in a
tribe-state compact “to facilitate the exercise of each
government's respective authority.” FELIX S. COHEN, HANDBOOK OF
FEDERAL INDIAN LAW § 6.05, at 591 (Nell Jessup Newton ed., 2012).
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The reservation lands of the Tribe in our State are known as the
Qualla boundary. See Sasser v. Beck, 40 N.C. App. 668, 670, 253
S.E.2d 577, 579 (1979) (“The United States first recognized the
rights of the Indians who had remained in North Carolina by an
Act of 1848, establishing a fund for their benefit. The Qualla
Boundary lands were purchased partly with money from this fund.
In 1866 the North Carolina legislature passed a statute granting
the Cherokee permission to remain in the State, and in 1868
Congress provided that the Secretary of the Interior should
‘take the same supervisory charge of the Eastern or North
Carolina Cherokees as of other tribes of Indians.’ In 1889 the
eastern Cherokees were incorporated under the laws of North
Carolina, and in 1897 their charter was amended to give the
Cherokee limited power of government, with special reference to
control of tribal property. The title to the Qualla Boundary
lands, which had been held by the Commissioner of Indian
Affairs, was conveyed to the corporation but remained subject to
the supervision of the Commissioner. This title was conveyed to
the United States in trust in 1925.” (citation omitted)).
The Tribe’s Code of Ordinances, section 20-1 states that:
(a) In order to ensure consistency in the
application and enforcement of all civil and
criminal traffic and motor vehicle laws on
the Cherokee Indian Reservation and in
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surrounding areas, the Tribe adopts Chapter
20 of the North Carolina General Statutes
and any amendments to that chapter which may
be made in the future. In so doing, all
persons operating motor vehicles on the
Cherokee Indian Reservation must abide by
these provisions . . . . Any references in
Chapter 20 of the N.C.G.S. to violations
occurring within the State of North Carolina
shall also include violations occurring
within the Cherokee Indian Reservation.
. . .
(b) All civil traffic infractions contained
therein shall be enforced by the North
Carolina Highway Patrol, Federal Law
Enforcement Officers, and the Cherokee
Police Department . . . .
. . .
(e) All traffic and motor vehicle violations
shall be enforced in accordance with
existing compacts in an effort to ensure
cooperation between all law enforcement
agencies.
CHEROKEE INDIANS EASTERN BAND, N.C., CODE ch. 20, art. 1, § 20-1 (2013)
(emphasis added). Moreover, pursuant to section 15-2 of the
Tribe’s Code,
(a) The North Carolina Highway Patrol is
hereby authorized to patrol the roads and
highways on the Cherokee Indian Reservation
and to enforce the North Carolina traffic
laws as adopted by the Eastern Band of
Cherokee Indians.
(b) The North Carolina Highway Patrol is
hereby authorized to enforce the North
Carolina criminal laws against all persons
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who are not subject to the criminal laws of
the Tribe or the criminal jurisdiction of
the Cherokee Court.
Id. § 15-2.
Defendant contends that the road on which he was stopped,
Drama Road, was not a road upon which the State Highway Patrol
had jurisdiction to operate.
At his pretrial hearing, evidence was presented showing
that Drama Road is held and maintained by the State within the
Tribe’s reservation, the Qualla boundary. However, pursuant to
the Tribe’s Code, section 20-1, the language of which is
identical to that of Chapter 20 of our General Statutes, the
State Highway Patrol has authority to “patrol the roads and
highways on the . . . reservation.” Id. Moreover, section 20-
1(e) of the Tribal Code notes that “[a]ll traffic and motor
vehicle violations shall be enforced in accordance with existing
compacts in an effort to ensure cooperation between all law
enforcement agencies.” Id. Furthermore, testimony by Cherokee
Officer Teesateskie and State Highway Patrol Trooper Hipp
indicated that the Cherokee Police Department had a compact with
the Swain County Police Department and the State Highway Patrol
to provide assistance during the rally, and that this agreement
had existed for several years.
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Defendant was initially stopped by Cherokee Officer Wright
on suspicion of Driving While Impaired before Trooper Hipp was
called in to assist. As Trooper Hipp was authorized both under
Tribal Code § 20-1 and the mutual assistance compact between the
Tribe, the Swain County Police Department and the State Highway
Patrol, the State Highway Patrol, through Trooper Hipp, had the
right to assist the Tribe in stopping, investigating, and
arresting defendant on Drama Road. Defendant’s argument as to
whether the State or the Tribe controls Drama Road is overruled,
as is defendant’s argument concerning Trooper Hipp’s arrest
authority.
B. DWI Offense
Defendant also contends the trial court lacked subject
matter jurisdiction to prosecute defendant, a non-Indian, for a
DWI offense incurred while defendant was on Indian land. We
disagree.
A claim that the trial court lacks subject matter
jurisdiction presents a question of law which is reviewed de
novo. State v. Satanek, 190 N.C. App. 653, 656, 600 S.E.2d 623,
625 (2008). “[T]he issue of a court's jurisdiction over a
matter may be raised at any time, even for the first time on
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appeal or by a court sua sponte.” State v. Webber, 190 N.C.
App. 649, 650, 660 S.E.2d 621, 622 (2008) (citation omitted).
As discussed in Issue I, the Tribe has incorporated Chapter
20 of our General Statutes with regard to the regulation of
motor vehicles into its Code. This incorporation and compact
with neighboring police departments gave Trooper Hipp arrest
authority over defendant. In determining whether the State then
had subject matter jurisdiction over defendant’s DWI offense, we
must look to general principles of Indian sovereignity.
[T]he Indian Civil Rights Act . . .
permit[s] states to assume jurisdiction over
civil cases involving Indians and arising in
Indian country by consent of the tribe
affected. The Eastern Band has never given
formal consent to the assumption of state
jurisdiction pursuant to the Indian Civil
Rights Act.
Wildcatt, 69 N.C. App. at 7, 316 S.E.2d at 875 (citing Sasser v.
Beck, 40 N.C. App. 668, 253 S.E.2d 577 (1979)). Pursuant to 18
U.S.C. § 1153, an Indian tribe has jurisdiction over crimes
committed by both its own Indian members and by Indian members
of other tribes. 18 U.S.C. § 1153 (2012); Oliphant v. Suquamish
Indian Tribe, 435 U.S. 191 (1978) (holding that by submitting to
the overriding sovereignty of the United States, Indian tribes
hold inherent power to try and punish Indians except where
otherwise prohibited by Congress). However, “the commonly
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shared presumption of Congress . . . [is] that tribal courts do
not have the power to try non-Indians [for crimes committed on
Indian land].” Oliphant, 435 U.S. at 207.
Here, defendant concedes in his brief that he is not a
member of an Indian tribe. Trooper Hipp testified that at the
time he placed defendant under arrest, he assumed that defendant
was non-Indian. Moreover, in its findings of fact regarding
defendant’s pretrial motion to suppress the trial court noted
that “[t]he Court can only assume and take notice that
[defendant] is a non-Indian . . . .” As such, whether the trial
court would have subject matter jurisdiction over defendant’s
DWI offense would depend on whether a DWI offense, as defined by
section 20 of our General Statutes and the Tribal Code, is a
criminal or civil offense.
After defendant blew a 0.15 on his breath test, defendant
was charged with DWI. A DWI, as defined by N.C. Gen. Stat. §
20-138.1, is a misdemeanor offense; a misdemeanor offense is a
type of criminal offense. See N.C.G.S. § 20-138.1(a)(1) (2013)
(“A person commits the offense of impaired driving if he drives
any vehicle upon any highway, any street, or any public
vehicular area within this State [] [w]hile under the influence
of an impairing substance[.]”).
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Pursuant to Tribal Code § 20-1, “[c]riminal penalties may
only be imposed against persons who are subject to the Cherokee
court’s criminal jurisdiction . . . .” CHEROKEE INDIANS EASTERN BAND,
N.C., CODE ch. 20, art. 1, § 20-1. Additionally, the Code
requires that a Cherokee magistrate follow specific procedures,
known as the “St. Cloud test,” to ensure that the Tribal court
would have jurisdiction over a defendant. After specific
inquiries, “[i]f the Magistrate determines that the defendant is
a non-Indian, then the Magistrate shall notify the CIPD
(Cherokee Indian Police Department) of same, dismiss the Tribe’s
charges and turn the defendant over to the CIPD for transport to
the appropriate State or local judicial or law enforcement
officer or to the Federal authorities.” Id. § 15, App. A,
Cherokee R. Crim. P. 6(b)(1) (2013). Therefore, tribal courts
lack jurisdiction over non-Indians. See Oliphant, 435 U.S. at
210 (“The power of the United States to try and criminally
punish is an important manifestation of the power to restrict
personal liberty. By submitting to the overriding sovereignty
of the United States, Indian tribes therefore necessarily give
up their power to try non-Indian citizens of the United States
except in a manner acceptable to Congress.” (citation omitted)).
As such, the State Highway Patrol had authority over defendant.
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Therefore, where the Tribal Code of Ordinances adopted N.C.G.S.
Chapter 20 and where the Code further authorizes the State
Highway Patrol to enforce North Carolina traffic laws as adopted
by the Eastern Band of the Cherokee Indians, the trial court did
not err in exercising subject matter jurisdiction over
defendant. Defendant’s argument is overruled.
II.
Defendant next challenges whether the roadblock set-up by
the Cherokee Police Department was constitutional.
Defendant first argues that the trial court erred in
finding the roadblock constitutional because the State Highway
Patrol lacked authority to enforce traffic laws within the
Qualla boundary. As we have already determined in Issue I that
the State Highway Patrol had authority to enforce traffic laws
within the Qualla boundary, we need not address this portion of
defendant’s argument.
Defendant further argues that even if the State Highway
Patrol had authority to enforce traffic laws within the Qualla
boundary, the trial court erred in finding the roadblock
constitutional because the roadblock was improperly conducted.
We disagree.
When considering a challenge to a
checkpoint, the reviewing court must
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undertake a two-part inquiry to determine
whether the checkpoint meets constitutional
requirements. First, the court must
determine the primary programmatic purpose
of the checkpoint. . . .
Second, if a court finds that police
had a legitimate primary programmatic
purpose for conducting a checkpoint . . .
[the court] must judge its reasonableness,
hence, its constitutionality, on the basis
of the individual circumstances.
State v. Veazey, 191 N.C. App. 181, 185—86, 662 S.E.2d 683, 686—
87 (2008) (internal quotations and citations omitted).
The State, in arguing that the roadblock was
constitutional, presented testimony from Cherokee Officers
Wright and Teesateskie and State Highway Patrol Trooper Hipp
that the roadblock was one of two established near the rally.
Each roadblock was set-up to check all vehicles leaving the
rally for potential DWI, driver’s license, insurance, and unsafe
driving violations. In its findings of fact the trial court
determined the roadblock to have a “legitimate primary
programmatic purpose,” stating that
the design of the procedure of a checkpoint
was that each vehicle be stopped. The
primary purpose was to see if the license
was current, the registration of the
vehicle, and any other violation of the law
that was then eminently detectable by the
officer. Each and every vehicle coming out
was checked. There was no selectivity in the
process . . . .
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As defendant presented no evidence in the record to contradict
the State's proffered purpose for the roadblock, the trial court
could rely on the testifying police officers’ assertions of a
legitimate primary purpose. Id. at 187, 662 S.E.2d at 687—88.
The trial court must, after finding a legitimate
programmatic purpose, determine whether the roadblock was
reasonable and, thus, constitutional. "To determine whether a
seizure at a checkpoint is reasonable requires a balancing of
the public's interest and an individual's privacy interest."
State v. Rose, 170 N.C. App. 284, 293, 612 S.E.2d 336, 342
(2005) (citation omitted). "In order to make this
determination, this Court has required application of the three-
prong test set out by the United States Supreme Court in Brown
v. Texas, 443 U.S. 47, 50, 61 L. Ed. 2d 357, 361, 99 S. Ct.
2637, 2640 (1979)." State v. Jarrett, 203 N.C. App. 675, 679,
692 S.E.2d 420, 424—25 (2010) (citation omitted). "Under Brown,
the trial court must consider [1] the gravity of the public
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." Id. at 679, 692
S.E.2d at 425 (citation and quotations omitted).
The first Brown factor — the gravity of
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the public concerns served by the seizure —
analyzes the importance of the purpose of
the checkpoint. This factor is addressed by
first identifying the primary programmatic
purpose . . . and then assessing the
importance of the particular stop to the
public.
Rose, 170 N.C. App. at 294, 612 S.E.2d at 342 (citation
omitted). The trial court, in its findings of fact, noted that
the rally “added thousands [sic] people to an already burdening
population at that particular time of the year . . . to the
Cherokee vicinity,” and that “the officers concerned about
checking traffic with regard to the users and participants for
that rally would [sic] probably certainly [sic] justified and
that the Court could almost take notice of the fact that at a
Harley Davidson Rally, they're not singing hymns.”
When Officer Wright stopped defendant, he did so for the
purpose of checking defendant for potential driving violations.
After Officer Wright noticed that defendant appeared to be
intoxicated and saw two open cans of beer in the truck’s center
console, he directed defendant to return to the parking lot and
requested an available officer to come and assist in a potential
DWI investigation. This Court has held that such measures are
appropriate under the first prong of Brown. See State v. Nolan,
211 N.C. App. 109, 712 S.E.2d 279 (2011) (discussing how the
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first prong of Brown is met where an officer stopped the
defendant at a roadblock, detected an odor of alcohol and
noticed two missing bottles from a six-pack of beer in the
vehicle, and began a DWI investigation); Veazey, 191 N.C. App.
at 191, 662 S.E.2d at 690 (“Both the United States Supreme Court
as well as our Courts have suggested that ‘license and
registration checkpoints advance an important purpose[.]’ The
United States Supreme Court has also noted that states have a
‘vital interest’ in ensuring compliance with other types of
motor vehicle laws that promote public safety on the roads.”
(citations omitted)).
Under the second Brown prong — “the degree to which the
seizure advance[d] the public interest” — the trial court must
determine whether “[t]he police appropriately tailored their
checkpoint stops to fit their primary purpose." Veazey, 191
N.C. App. at 191, 662 S.E.2d at 690 (internal quotation and
citation omitted).
Our Court has previously identified a number
of non-exclusive factors that courts should
consider when determining whether a
checkpoint is appropriately tailored,
including: whether police spontaneously
decided to set up the checkpoint on a whim;
whether police offered any reason why a
particular road or stretch of road was
chosen for the checkpoint; whether the
checkpoint had a predetermined starting or
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ending time; and whether police offered any
reason why that particular time span was
selected.
Id.
Here, the trial court made findings of fact indicating that
there was a written plan and guidelines set by the Cherokee
police department for conducting roadblocks at the rally; a
briefing on this plan and guidelines was held for all officers
and troopers assisting at the rally; two roadblocks were set up
at previously designated points to address traffic leaving the
rally; the roadblocks had specific start and end times to
coincide with the conclusion of the rally; and both police
cruisers and fire trucks were placed at the roadblocks with
their lights flashing to indicate to drivers that roadblocks
were being conducted. Such findings “do indicate that the trial
court considered appropriate factors to determine whether the
checkpoint was sufficiently tailored to fit its primary purpose,
satisfying the second Brown prong." Jarrett, 203 N.C. App. at
680—81, 692 S.E.2d at 425.
“The final Brown factor to be considered is the severity of
the interference with individual liberty.” Id. at 681, 692
S.E.2d at 425. "[C]ourts have consistently required
restrictions on the discretion of the officers conducting the
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checkpoint to ensure that the intrusion on individual liberty is
no greater than is necessary to achieve the checkpoint's
objectives." Veazey, 191 N.C. App. at 192—93, 662 S.E.2d at
690—91.
Courts have previously identified a number
of non-exclusive factors relevant to officer
discretion 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[.]
Id. at 193, 662 S.E.2d at 691 (citations omitted). "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." Id. (internal quotations and citation omitted).
The trial court’s findings of fact, which were supported
by the testimony of Officers Wright and Teesateskie and Trooper
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Hipp, found “there was in place a policy for checkpoints to be
established by local police as well as assistance from the North
Carolina State Highway Patrol, [for] which assistance was
solicited by the Cherokee Police Department”; “the local
Cherokee Police Department decided to establish two checkpoints
that are random, they don't do it regularly at either one of
those places”; and that “there [was] a policy, at that time, in
writing, . . . [but] that their office . . . moved twice, and
whatever document existed then no longer exists now.” As for
the policy, the trial court further noted that “the design of
the procedure of a checkpoint was that each vehicle be stopped”;
“[t]he primary purpose was to see if the license was current,
the registration of the vehicle, and any other violation of the
law that was then eminently detectable by the officer”; and
that”[e]ach and every vehicle coming out was checked . . .
[t]here was no selectivity in the process.” In its conclusions
of law, the trial court stated that “the Court finds that those
facts support the propriety of the stop and the measure of it
and the substance of it based thereon, [and] the motion to
suppress the stop and any information obtained as a result
thereof in regard to this defendant is denied.” As the trial
court properly determined that the roadblock had a legitimate
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programmatic purpose and that the Brown factors were met,
defendant’s argument is accordingly overruled.
III.
Defendant’s final argument on appeal is that the trial
court erred in failing to grant defendant’s Knoll motion to
dismiss the DWI citation. We disagree.
A Knoll motion, based on State v. Knoll, 322 N.C. 535, 369
S.E.2d 558 (1988), alleges that a magistrate has failed to
inform a defendant of the charges against him, his right to
communicate with counsel, family, and friends, and of the
general circumstances under which he may secure his release
pursuant to N.C. Gen. Stat. § 15A-511. See N.C.G.S. § 15A-
511(b) (2013); Knoll, 322 N.C. at 536, 369 S.E.2d at 559 (“Upon
a defendant's arrest for DWI, the magistrate is obligated to
inform him of the charges against him, of his right to
communicate with counsel and friends, and of the general
circumstances under which he may secure his release.”). If a
defendant is denied these rights, the charges are subject to
being dismissed. Knoll, 322 N.C. at 544, 369 S.E.2d at 564. On
appeal, the standard of review is whether there is competent
evidence to support the trial court’s findings and the
conclusions. State v. Chamberlain, 307 N.C. 130, 143, 297 S.E.2d
-29-
540, 548 (1982) (citation omitted). "If there is a conflict
between the state's evidence and defendant's evidence on
material facts, it is the duty of the trial court to resolve the
conflict and such resolution will not be disturbed on appeal."
Id.
Defendant raised his Knoll motion during the pretrial
hearing, arguing that the magistrate failed to promptly release
him after his arrest. Defendant appeared before the magistrate
at 1:05 a.m., and was released from jail after posting bond at
4:50 a.m. In making his Knoll motion, defendant contends that
the magistrate violated his rights to a timely pretrial release
by setting a $500.00 bond and holding him in jail for
approximately three hours and 50 minutes. Defendant’s argument
is without merit. Pursuant to our standard of review, the trial
court properly denied defendant’s Knoll motion.
In determining which conditions of
release to impose, the judicial official
must, on the basis of available information,
take into account the nature and
circumstances of the offense charged; the
weight of the evidence against the
defendant; the defendant's family ties,
employment, financial resources, character,
and mental condition; whether the defendant
is intoxicated to such a degree that he
would be endangered by being released
without supervision; the length of his
residence in the community; his record of
convictions; his history of flight to avoid
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prosecution or failure to appear at court
proceedings; and any other evidence relevant
to the issue of pretrial release.
N.C. Gen. Stat. § 15A-534(c) (2013). “If the provisions of the
. . . pretrial release statutes are not complied with by the
magistrate, and the defendant can show irreparable prejudice
directly resulting from [this noncompliance], the DWI charge
must be dismissed.” State v. Labinski, 188 N.C. App. 120, 126,
654 S.E.2d 740, 744 (2008) (citation omitted).
During the pretrial hearing, defendant presented evidence
in support of his Knoll motion that the magistrate failed to
promptly release him. The State disputed this evidence in its
response. In denying defendant’s motion, the trial court made
the following findings of fact and conclusions of law:
The defendant was arrested at or about
10:30 p.m., was referred to a trooper, was
taken to the jail in Swain County, and test
administered on or about -- wait, let's see
-- it was 12:34. Then he was released at
approximately 4:50 a.m., after making bond.
The magistrate upon receiving notification
from the trooper that the breathalyser [sic]
has registered in both tests .15, knowing
that the defendant was a non-resident, the
magistrate also opined that upon observing
the defendant, he was, and I quote, "pretty
drunk," end of quote.
Furthermore, that the magistrate was
under an obligation not to turn him out in
the public in that kind of condition
notwithstanding the defendant's assertion
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that a breathalyser [sic] test is not
accurate, and he wanted a blood test to show
that. The Court further finds the magistrate
did not deny him any rights by setting a
bond, and the bond he made, albeit some four
hours later. In any event, due to those
circumstances the Court finds that his
rights have not been violated.
There's no prejudice shown to it,
especially due to the fact that when he was
released, he was in the company of a
bondsman or bonds-lady, eventually back to
the cabin where his then girlfriend, now
wife, was. Either one of those ladies,
either one could have helped him or assisted
him in getting to a hospital to get a blood
test. And if in the event I do take notice
of alcohol dissipating from the body at .16
per hour, then extrapolating forward or at
least backwards at the time he was arrested
he had a .18. Now, going forward, had he
gone ahead and gotten the blood test when he
had a chance to, he still would have been at
or near .08, if the breathalyser [sic] was
accurate. He had the chance to do so. He
hasn't been denied any rights that he could
have exercised on his own. Therefore, that
motion under the Knoll test is denied.
At the pretrial hearing, defendant testified that the
magistrate told him of his right to contact family, friends and
counsel; defendant could not recall if the magistrate told him
that he could seek to have an independent chemical analysis
done. Defendant also acknowledged that when the magistrate asked
if he wanted to contact someone, defendant declared that he did
not, and signed the release forms indicating this. Defendant
-32-
further testified that he wanted to undergo an independent
chemical analysis at the hospital, but that the four hour delay
in his release prevented him from doing so. The magistrate
testified that he had a “cordial conversation” with defendant,
and that defendant was properly informed of his rights pursuant
to N.C.G.S. §15A-511(b). The magistrate further testified that
defendant was given access to a telephone at the jail where he
could have contacted counsel or another person to assist him in
obtaining an independent analysis; defendant admitted that he
used this telephone to call a bail bondsman. As such, although
there was conflicting evidence between defendant and the State
as to whether the magistrate erred in his arraignment of
defendant, the trial court resolved this conflict by weighing
all relevant evidence before concluding that the magistrate did
not commit a Knoll violation. See State v. Lewis, 147 N.C. App.
274, 279, 555 S.E.2d 348, 351 (2001) (“At the hearing on the
Knoll motion, the defendant stipulated that Magistrate Alexander
informed him of his right to communicate with counsel, family,
and friends. The defendant testified that he was given a
telephone and he attempted to make calls. Although there was
conflicting evidence, the trial court found the defendant was
informed of his rights by Trooper Jackson and Magistrate
-33-
Alexander. Further, it found that the defendant was given the
opportunity to exercise those rights but he failed to do so.
The findings of the trial court support its conclusions. Thus,
the trial court did not err in denying the motion to dismiss.”).
Defendant further argues that the magistrate erred in his
arraignment by also charging defendant with carrying a concealed
weapon. During Trooper Hipp’s investigation defendant admitted
that he had a handgun in his truck. Although defendant had a
permit for the handgun issued in South Carolina, defendant did
not produce this permit until his trial at which time the charge
was dismissed. As such, the magistrate was unaware of
defendant’s handgun permit at the time defendant was brought
before him.
In determining whether to hold defendant under bond, the
magistrate testified that he considered all relevant
circumstances surrounding defendant pursuant to N.C.G.S. § 15A-
534(c). The magistrate stated that he set defendant’s bond at
$500.00 because defendant was, based on the chemical analysis,
“pretty drunk,” defendant was from out-of-state and therefore
“[i]t’s very common to ask for some kind of a secured bond when
people are not from this area[,]” and because defendant had a
firearm on him at the time of his arrest. The magistrate then
-34-
acknowledged that had he known defendant had a South Carolina
permit for the handgun, he “would not have charged him with that
because we honor South Carolina permits.” Therefore, as the
magistrate made his decision as to defendant’s bond by
considering all of the evidence before him, the magistrate did
not err in charging defendant for carrying a concealed weapon.
Furthermore, even if the magistrate erred in considering
defendant’s handgun in determining defendant’s bond, such error
was not prejudicial. In its conclusions of law denying
defendant’s Knoll motion, the trial court noted that
[t]here's no prejudice shown . . . . And if
in the event I do take notice of alcohol
dissipating from the body at .16 per hour,
then extrapolating forward or at least
backwards at the time he was arrested he had
a .18. Now, going forward, had he gone ahead
and gotten the blood test when he had a
chance to, he still would have been at or
near .08, if the breathalyser was accurate.
As such, the trial court specifically found that the
magistrate’s processing of defendant was not prejudicial because
defendant was so intoxicated that his length of detention and
bond amount was thus proper. See Labinski, 188 N.C. App. 120,
654 S.E.2d 740 (finding no prejudicial error where the defendant
was arrested for DWI, blew at 0.08, was assigned a $500.00 bond,
and was held in the jail for over two hours until she posted
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bond, despite the magistrate failing to determine whether the
defendant would pose a threat if released “under conditions
other than a secured bond”). Accordingly, defendant’s final
argument on appeal is overruled.
The State’s motion to dismiss is denied. The trial court’s
denial of defendant’s pretrial motions is affirmed.
Judges CALABRIA and GEER concur.