State v. Townsend ( 2014 )

NO. COA14-129
NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 10 CRS 250836
BRUCE ALLEN TOWNSEND, JR.,
Defendant.
Appeal by defendant from judgment entered 1 August 2013 by
Judge Susan E. Bray in Mecklenburg County Superior Court. Heard
in the Court of Appeals 4 June 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Lars F. Nance, for the State.
Arnold & Smith, PLLC, by Laura M. Cobb, for defendant-
appellant.
BRYANT, Judge.
Defendant’s Knoll motion was properly dismissed where the
magistrate followed N.C. Gen. Stat. § 15A-511(b) in informing
defendant of his rights and in setting an option bond such that
any technical statutory violation committed by the magistrate
was not prejudicial to defendant. Where the State presented
sufficient evidence such that a reasonable person could believe
defendant committed the offense of driving while impaired, the
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trial court properly denied defendant’s motion to suppress for
lack of probable cause. A technical statutory violation
committed by the trial court during a pre-trial hearing but not
at trial did not result in error that would entitle defendant to
a new trial. Where the trial court determined that a driving
while impaired checkpoint was established for a legitimate
primary purpose and that the Brown factors were met, defendant’s
motion to suppress evidence of the checkpoint was properly
denied.
On 21 October 2010, defendant Bruce Allen Townsend, Jr.,
was arrested for driving while impaired. On 24 August 2011,
defendant was convicted in Mecklenburg County District Court of
driving while impaired and sentenced to thirty days
imprisonment. The District Court suspended defendant’s sentence
and placed him on unsupervised probation for twelve months.
Defendant was further ordered to obtain a substance abuse
assessment, comply with recommended treatment, complete twenty-
four hours of community service, and pay courts costs, a $100.00
fine, and a $250.00 community service fee.
Defendant appealed to Superior Court, and on 30 August
2012, was tried before a jury during the criminal session of
Mecklenburg County Superior Court, the Honorable Susan E. Bray,
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Judge presiding. At trial, the State’s evidence tended to show
the following.
On the evening of 21 October 2010, a checkpoint was
established in the 7200 block of Providence Road in Charlotte by
the Charlotte-Mecklenburg Police Department to check for
impaired drivers and other vehicular infractions. At
approximately 11:28 p.m., defendant drove up to the checkpoint
where he encountered Officer Todd Davis. Officer Davis engaged
defendant in conversation and noticed that defendant emitted an
odor of alcohol and had red, bloodshot eyes. When asked by
Officer Davis whether he had had anything to drink that evening,
defendant responded that he had consumed several beers earlier.
Officer Davis administered two alco-sensor tests to defendant;
both tests were positive for alcohol.
Officer Davis then asked defendant to perform several field
sobriety tests. Officer Davis testified that when he
administered a horizontal gaze nystagmus test to defendant, he
noticed three signs of intoxication. On a “walk and turn” test,
defendant exhibited two signs of intoxication, and on a “one leg
stand” test, defendant showed one sign of intoxication. Officer
Davis also requested that defendant recite the alphabet from J
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to V, which defendant did without incident. Officer Davis
subsequently arrested defendant for driving while impaired.
Defendant was taken to a Breath Alcohol Testing vehicle
located at the checkpoint where he blew a 0.10 on his first test
and a 0.09 on his second test. Officer Davis then drove
defendant to the Mecklenburg County jail. Defendant was
admitted to the jail at 12:56 a.m., appeared before the
magistrate at 2:54 a.m., and was released to his wife’s custody
at 4:45 a.m.
Defendant was convicted by a jury of driving while impaired
and sentenced by the trial court to sixty days imprisonment.
Defendant’s sentence was suspended and he was placed on
unsupervised probation for twenty-four months. Defendant was
also ordered to pay court costs, a $100.00 fine, and a $250.00
community service fee; perform twenty-four hours of community
service; surrender his driver’s license to the clerk; not
operate a motor vehicle until his license is restored; and to
complete all treatments recommended by his alcohol assessment.
Defendant appeals.
_______________________________
On appeal, defendant raises four issues as to whether the
trial court: (I) erred in denying defendant’s motion to dismiss
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pursuant to defendant’s Knoll motion; (II) erred in denying
defendant’s motion to suppress for lack of probable cause; (III)
abused its discretion in denying defendant’s motion to redact
evidence of the alco-sensor test; and (IV) erred in denying
defendant’s motion to suppress evidence resulting from the
checkpoint.
I.
Knoll Motion
Defendant first argues that the trial court erred in
denying his Knoll motion to dismiss. 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.” (citation
omitted)). If a defendant is denied these rights, the charges
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are subject to being dismissed. Knoll, 322 N.C. at 544—45, 369
S.E.2d at 564. “[I]n those cases arising under N.C.G.S. § 20-
138.1(a)(2), prejudice will not be assumed to accompany a
violation of defendant's statutory rights, but rather, defendant
must make a showing that he was prejudiced in order to gain
relief.” Id. at 545, 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 of fact and its conclusions
of law. State v. Chamberlain, 307 N.C. 130, 143, 297 S.E.2d
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. (citation omitted).
Defendant raised his Knoll motion during his pre-trial
hearing, contending he was denied his right to communicate with
counsel and friends, and that this denial to have others observe
him resulted in substantial prejudice.
In its order denying defendant’s motion to dismiss pursuant
to Knoll, the trial court made the following findings of fact:
1. Officer Davis stopped [defendant] at a
checkpoint on Providence Road at
approximately 11:28pm on Thursday, October
21, 2010.
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2. Defendant submitted to portable breath
tests and had a positive reading for
alcohol.
3. Officer Davis took Defendant to [the
Blood Alcohol Testing] mobile unit for [an]
intoxilyzer test. Defendant signed [a]
rights [form] at 11:55pm, acknowledging his
right to call an attorney or witness.
4. Defendant blew 0.09 on Intox EC/IR-II.
5. Defendant did not at any time call a
witness or ask for a witness.
6. Defendant did call his wife . . . to let
her know he had been arrested, [and] told
her he or someone would call her later to
come pick him up.
7. Officer Davis transported Defendant to
[the] Mecklenburg County Jail, where he was
received at approximately 12:56 am on
October 22, 2010.
8. At the jail, Defendant had his property
checked, was booked, saw the nurse, [and]
was fingerprinted [and] photographed.
9. Officer Davis submitted his arrest paper
work and charging affidavit to the
magistrate.
10. Defendant signed [an] implied consent
offense notice (AOC-CR-271) in front of
[the] magistrate at 2:34am, giving his
[wife’s] name and phone number as a contact
person.
11. [The] [m]agistrate had [Officer Davis’s]
information about the charge, BAC results,
information from Defendant about address,
length of employment, etc. and set
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conditions of release. Those conditions
were a $1000 secured bond or a $1000
unsecured release to a sober responsible
adult with ID or any terms or conditions of
pretrial services if accepted by the
program.
12. Some official from the jail called
[defendant’s wife] to inform her that she
could come pick up Defendant. She left her
home around 3am and arrived at the jail
around 3:15 or 3:20am to pick up Defendant.
13. [Defendant’s wife] waited for about 20
minutes in the wrong area of the jail, then
went to another area, spoke with appropriate
personnel around 3:52am, [and] signed
Defendant out at 4:21am (after jailers
verified he had no outstanding criminal
warrants, was medically cleared, retrieved
his property, etc.).
The trial court then made the following conclusions of law:
In accordance with NCGS 15A-534(a), a
judicial official, in determining conditions
of pretrial release, must impose [at least]
one of the following conditions:
1. Release the defendant on his written
promise to appear.
2. Release the defendant upon his
execution of an unsecured appearance
bond in an amount specified by the
judicial official.
3. Place the defendant in the custody
of a designated person or organization
agreeing to supervise him.
4. Require the execution of an
appearance bond in a specified amount
secured by a cash deposit in the full
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amount of the bond, by a mortgage pursuant
to NCGS 58- 74-5, or by at least one
solvent surety.
Further, in accordance with NCGS 15A[-
]534(b), the judicial official, in granting
pretrial release, must impose condition (1),
(2) or (3) in subsection (a) above unless he
determines that such release will not
reasonably assure the appearance of the
defendant as required; will pose a danger of
injury to any person; or is likely to result
in destruction of evidence, subornation of
perjury, or intimidation of potential
witnesses. Upon making the determination,
the judicial official must then impose
condition (4) in subsection (a) above
instead of condition (1), (2), or (3) and
must record the reasons for doing so in
writing to the extent provided in the
policies or requirements issued by the
senior resident superior court judge
pursuant to NCGS 15A-535(a).
In this matter, the magistrate’s terms and
conditions of release for [defendant]
included a combination of conditions (2) and
(3), an unsecured bond and release to a
sober responsible adult with ID, that person
being [defendant’s wife]. Defendant never
asked for witnesses; in fact [defendant]
only asked his wife to come pick him up.
North Carolina General Statutes, section 15A-534, provides
that:
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,
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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
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).
In its findings of fact and conclusions of law, the trial
court noted that defendant had the opportunity to contact
counsel and friends to observe him. A review of the record
shows that defendant had several opportunities to call counsel
and friends to observe him and help him obtain an independent
chemical analysis, but that defendant failed to do so. In fact,
the record shows that defendant asked that his wife be called,
but only for the purpose of telling her that he had been
arrested. As such, defendant was not denied his rights pursuant
to Knoll.
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Defendant further contends his rights were violated because
the magistrate ordered defendant held under a $1,000.00 secured
bond without justification and prior to meeting with him.
Defendant cites State v. Labinski in support of his argument.
In Labinski, the defendant was arrested for driving while
impaired. Id. at 122, 654 S.E.2d at 741. The defendant did not
request that she be observed by witnesses, nor did she seek to
have an independent chemical analysis conducted, even though her
friends were at the detention center to help her. Id. at 122,
654 S.E.2d at 741—42. The magistrate gave the defendant a
$500.00 secured bond without making any findings of fact as to
why a secured bond was required. Id. at 122—23, 654 S.E.2d at
742. On appeal, this Court determined that the magistrate’s
failure to make findings as to why a secured bond was necessary
amounted to a statutory violation. Id. at 126—27, 654 S.E.2d at
744—45. However, this Court affirmed the trial court, finding
that despite the magistrate’s commission of a statutory
violation, the defendant failed to show how that violation was
prejudicial to her. Id. at 127—28, 654 S.E.2d at 745.
Here, the conditions of the release order did not, as
defendant contends, strictly impose a $1,000.00 secured bond on
him. Rather, as noted by the trial court in its findings of
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fact, the magistrate set an option bond that gave defendant a
choice between paying a $1,000.00 secured bond or a $1,000.00
unsecured bond and being released to a sober, responsible adult;
defendant was eventually released to his wife. Defendant now
challenges the secured bond option, arguing that the magistrate
was required to make written findings of fact as to the terms of
defendant’s option bond.
Pursuant to N.C. Gen. Stat. § 15A-534(a), a magistrate is
not required to make written findings of fact when setting
conditions of release unless the terms of defendant’s release
require a secured bond. N.C.G.S. § 15A-534(a) (2013). As such,
although the magistrate was not required to make any written
findings of facts in the option bond when imposing the condition
of allowing defendant to pay an unsecured bond and be released
to a sober, responsible adult, the magistrate was required to
make written findings as to the option bond’s other potential
condition for release — a secured bond.
However, even though the magistrate may have committed a
technical statutory violation, defendant has failed to
demonstrate how he was prejudiced as a result. Defendant was
not released on a secured bond — he was instead released on an
unsecured bond to the custody of his wife. Therefore, even had
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the magistrate been required to make findings of fact as to the
secured bond option, no secured bond was imposed, and defendant
cannot show prejudice. See Labinski, 188 N.C. App. at 127—28,
654 S.E.2d at 745 (holding that even though the magistrate
committed a technical statutory violation by failing to make
findings of fact regarding a secured bond, the defendant was
unable to show how such a violation prejudiced her). Moreover,
here, defendant was afforded his statutory right to pretrial
release and his right to communicate with counsel and friends.
Accordingly, defendant’s argument is overruled.
II.
Probable Cause
Next, defendant contends the trial court erred in denying
defendant’s motion to suppress for lack of probable cause. We
disagree.
We note at the outset that defendant has not assigned error
to the trial court's findings of fact, and those findings are
therefore binding on appeal. In re S.N.H. & L.J.H., 177 N.C.
App. 82, 83, 627 S.E.2d 510, 512 (2006) (citation omitted). Our
review is thus limited to considering whether the trial court
erred by concluding, as a matter of law, that there was probable
cause to arrest defendant for driving while impaired. This
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Court reviews conclusions of law de novo. State v. Ripley, 360
N.C. 333, 339, 626 S.E.2d 289, 293 (2006) (citations omitted).
Probable cause for an arrest is a
reasonable ground of suspicion, supported by
circumstances sufficiently strong in
themselves to warrant a cautious man in
believing the accused to be guilty.
To justify a warrantless arrest, it is not
necessary to show that the offense was
actually committed, only that the officer
had a reasonable ground to believe it was
committed. The existence of such grounds is
determined by the practical and factual
considerations of everyday life on which
reasonable and prudent people act. If there
is no probable cause to arrest, evidence
obtained as a result of that arrest and any
evidence resulting from the defendant's
having been placed in custody, should be
suppressed.
State v. Tappe, 139 N.C. App. 33, 36—37, 533 S.E.2d 262, 264
(2000) (citations and quotation omitted).
Defendant argues the trial court erred in denying his
motion to suppress for lack of probable cause because “there was
no set of facts in the case at hand that would lead a
reasonable, cautious person to believe that [defendant] was
driving while impaired.” Defendant’s argument lacks merit, as
the evidence supports the trial court’s determination that
Officer Davis had probable cause to arrest defendant.
In its order denying defendant’s motion to suppress for
lack of probable cause, the trial court noted that when Officer
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Davis stopped defendant at the checkpoint, he immediately
noticed that defendant had “bloodshot eyes and a moderate odor
of alcohol about his breath.” Defendant admitted to “drinking a
couple of beers earlier” and had “stopped drinking about an
hour” prior to being stopped at the checkpoint. Two alco-sensor
tests administered to defendant yielded positive results, and
defendant exhibited clues indicating impairment on three field
sobriety tests. Officer Davis determined that defendant was
“under the influence of some impairing substance,” regardless of
the positive alco-sensor test results. The trial court further
acknowledged Officer Davis’ twenty-two years’ experience as a
police officer.
Defendant argues that because he did not exhibit signs of
intoxication such as slurred speech, glassy eyes, or physical
instability, there was insufficient probable cause for Officer
Davis to arrest defendant for driving while impaired. We are
not persuaded; as this Court has held, the odor of alcohol on a
defendant’s breath, coupled with a positive alco-sensor result,
is sufficient for probable cause to arrest a defendant for
driving while impaired. See State v. Rogers, 124 N.C. App. 364,
369—70, 477 S.E.2d 221, 224 (1996); see also State v. Fuller,
176 N.C. App. 104, 109, 626 S.E.2d 655, 658 (2006) (“The results
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of an alcohol screening test may be used by an officer to
determine if there are reasonable grounds to believe that a
driver has committed an implied-consent offense[.]” (citations
and quotation omitted)). Here, Officer Davis noted that
defendant had bloodshot eyes, emitted an odor of alcohol,
exhibited clues as to intoxication on three field sobriety
tests, and gave positive results on two alco-sensor tests. As
such, there was sufficient probable cause for Officer Davis to
arrest defendant for driving while impaired.
III.
Defendant next argues that the trial court abused its
discretion in denying his request to redact evidence of the
alco-sensor test. Specifically, defendant contends the trial
court’s admission of the alco-sensor test’s numerical results
was an abuse of discretion, thus entitling him to a new trial.
We disagree.
On appellate review, “[a] trial court may be reversed for
abuse of discretion only upon a showing that its actions are
manifestly unsupported by reason.” State v. Rasmussen, 158 N.C.
App. 544, 555, 582 S.E.2d 44, 53 (2003) (citation omitted).
Although the results of a defendant’s alco-sensor test are
not admissible as substantive evidence, State v. Bartlett, 130
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N.C. App. 79, 82, 502 S.E.2d 53, 55 (1998), an officer who
arrests a defendant for driving while impaired may testify that
a defendant’s alco-sensor test indicated the presence of
alcohol. Fuller, 176 N.C. App. at 109, 626 S.E.2d at 658.
Defendant contends the trial court abused its discretion
during the pre-trial hearing by allowing into evidence the
numerical results of defendant’s alco-sensor test. During the
pre-trial hearing, the results of the alco-sensor test were
offered to the trial court as part of Officer Davis’s paperwork
which was submitted to the magistrate; the paperwork was
proffered by the State to show that Officer Davis had probable
cause to arrest defendant for driving while impaired.
Specifically, Officer Davis’ arrest affidavit described how he
encountered defendant, his observations of defendant,
defendant’s performance on the field sobriety tests, and the
numerical results of defendant’s alco-sensor test. This
admission of the actual numerical results of defendant’s alco-
sensor test was error, as only “a positive or negative result on
an alcohol screen test” may be admissible in court. See N.C.
Gen. Stat. § 20-16.3 (2013) (“The fact that a driver showed a
positive or negative result on an alcohol screening test, but
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not the actual alcohol concentration result . . . is admissible
in a court[.]”).
However, while we note the technical violation of the
statute, we do not agree with defendant that this violation
entitles him to a new trial. “A mistrial is appropriate only
when there are such serious improprieties as would make it
impossible to attain a fair and impartial verdict under the
law.” State v. Blackstock, 314 N.C. 232, 243—44, 333 S.E.2d 245,
252 (1985) (citation omitted).
Here, the numerical results of defendant’s alco-sensor test
were admitted into evidence only during the trial court’s pre-
trial hearing on defendant’s motions to suppress and dismiss;
the results were never introduced into evidence before the jury.
Moreover, even without the results of the alco-sensor test, the
State presented sufficient evidence, via the testimony of
Officer Davis, to survive defendant’s motion to dismiss for lack
of probable cause. As such, despite committing a technical
statutory violation by admitting the numerical results of
defendant’s alco-sensor test, the trial court did not err in
denying defendant’s motion to dismiss for lack of probable
cause.
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Further, when Officer Davis testified at trial before the
jury as to the circumstances under which he encountered and
eventually arrested defendant for driving while impaired,
Officer Davis did not discuss defendant’s alco-sensor test other
than to state that defendant was administered a preliminary
breath test along with field sobriety tests as part of Officer
Davis’ investigation. When asked at trial about how he came to
form an opinion as to defendant’s state of being on the evening
of 21 October 2010, Officer Davis did not mention the alco-
sensor test at all:
Based on my conversation with [defendant],
with the physical observations of
[defendant] when I was talking to him at the
car, based on [defendant’s] standardized
field sobriety tests, I did form the
conclusion or the opinion that [defendant]
had consumed a sufficient amount of some
impairing substance so as to appreciably
impair his mental and/or physical faculties.
Indeed, despite defendant’s contentions to the contrary, the
actual numerical results of his alco-sensor test were never
admitted into evidence at trial before the jury. Therefore,
because this evidence was never admitted before the jury, it
could not and did not cause defendant to receive an unfair
verdict that would entitle him to a new trial. Defendant’s
argument is therefore overruled.
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IV.
Finally, defendant contends the trial court erred in
denying his motion to suppress evidence resulting from the
checkpoint. We disagree.
When considering a challenge to a
checkpoint, the reviewing court must
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) (citations and quotations omitted).
Defendant argues the trial court erred in denying his
motion to suppress evidence resulting from the checkpoint
because the checkpoint lacked an acceptable primary purpose and
was, therefore, unconstitutional. In its order denying
defendant’s motion to suppress, the trial court made the
following findings of fact:
The Court considered all evidence presented,
as well as the arguments and contentions of
counsel, and makes the following findings of
fact by a preponderance of the evidence:
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1. The Charlotte Mecklenburg Police
Department, under supervision of Sgt. David
Sloan, set up a DWI check point near [the]
7200 block of Providence Road between 11pm
October 21, 2010 and 3am October 22, 2010.
2. Sgt. Sloan chose the location because
over 30 traffic fatalities had occurred in
the vicinity since 2006, with about half of
those involving impaired driving.
3. The area is near the Arboretum Shopping
Center, which houses several restaurants and
other businesses which serve or sell
alcohol.
4. The check point was set up in compliance
with NCGS 20-16.3A: there was a written
plan; Sgt. Sloan briefed the 25 officers
from 6 different agencies who were operating
the checkpoint; every vehicle was to be
stopped and was stopped; signs notifying
approaching motorists of a DWI check point
ahead were placed approximately 200 yards
from [the] check point; [and] non-impaired
drivers were only delayed about 15 seconds
each.
The trial court then concluded that the checkpoint was proper
and denied defendant’s motion to suppress.
Defendant contends the trial court erred in denying his
motion to suppress because the State failed to meet its burden
of demonstrating the checkpoint was set-up for anything other
than the improper purpose of general crime detection.
Defendant’s argument lacks merit, as during the pre-trial
hearing on defendant’s motion to suppress, the State presented
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testimony by Sergeant Sloan regarding the checkpoint. Sergeant
Sloan testified that the checkpoint was administered according
to a written plan, and that the date for the checkpoint had been
selected almost a year prior to that date based on when the
Blood Alcohol Testing mobile lab would be available. Sergeant
Sloan further testified that the location of the checkpoint, in
the 7200 block of Providence Road, was chosen because of the
statistically high number of impaired driving offenses and
fatalities that had occurred in the Providence Road and Highway
55 corridor. Further, Sergeant Sloan stated that the main
purpose of the checkpoint was to check for DWIs.
We agree with the trial court’s findings that the
checkpoint was conducted for a legitimate primary purpose, as
the record indicates the checkpoint was established, pursuant to
N.C. Gen. Stat. § 20-16.3, to check all passing drivers for DWI
violations. See N.C.G.S. § 20-16.3 (2013) (permitting law
enforcement agencies to set-up DWI checkpoints provided such
checkpoints are administered according to established, written
plans, are well-marked for drivers, and detain all passing
drivers only to the extent necessary to determine if reasonable
suspicion exists that a driver has committed a DWI violation).
Defendant further contends the trial court erred in denying
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his motion to suppress because the checkpoint was unreasonable
and therefore unconstitutional. After finding a legitimate
programmatic purpose, the trial court must 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 quotation omitted).
“The first Brown factor — the gravity of 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
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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).
Here, the State presented evidence that the checkpoint was
intended to screen all passing drivers for DWI violations. When
Officer Davis stopped defendant at the checkpoint, Officer Davis
noticed defendant had red, bloodshot eyes and emitted a
“moderate odor of alcohol.” When Officer Davis asked defendant
if defendant had been drinking that evening, defendant responded
that he had consumed several beers. Officer Davis then asked
defendant to take an alco-sensor test and perform several field
sobriety tests. As such, the first Brown factor was met. See
State v. Kostick, ___ N.C. App. ___, ___, 755 S.E.2d 411, 420
(2014) (finding the first Brown factor was met where an officer
stopped the defendant at a checkpoint and noticed the defendant
had red, bloodshot eyes, emitted an odor of alcohol, and
admitted to drinking that evening); 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[.]” (citation and
quotation omitted)).
The second Brown prong examines “the degree to which the
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seizure advance[s] the public interest,” and requires the trial
court to 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 (citations and
quotations 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
ending time; and whether police offered any
reason why that particular time span was
selected.
Id. (citation omitted).
In its findings of fact, the trial court found that the
checkpoint had fixed starting and ending times; the checkpoint
was located in the 7200 block of Providence Road, an area
located within a mile of a major shopping area where there are
businesses which serve or sell alcohol; the checkpoint’s
location was selected based on impaired driving statistics; and
the checkpoint was conducted according to a written plan, was
properly marked, and was intended to stop all passing drivers to
check for impaired driving violations. These findings of fact
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are supported by the evidence and “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
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 (citations omitted).
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
-27-
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. (citation and quotation omitted).
As previously discussed, in its findings of fact the trial
court noted the following:
4. The check point was set up in compliance
with NCGS 20-16.3A: there was a written
plan; Sgt. Sloan briefed the 25 officers
from 6 different agencies who were operating
the checkpoint; every vehicle was to be
stopped and was stopped; signs notifying
approaching motorists of a DWI check point
ahead were placed approximately 200 yards
from [the] check point; [and] non-impaired
drivers were only delayed about 15 seconds
each.
Such findings meet the third factor of Brown, as “the totality
of the circumstances in examining the reasonableness of [the]
checkpoint” was examined and set forth by the trial court in its
order. See Kostick, ___ N.C. App. at ___, 755 S.E.2d at 421
(citation omitted) (holding that where the record showed the
trial court heard and weighed the evidence regarding whether a
DWI checkpoint was established for a legitimate primary purpose
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and the checkpoint stops were reasonable, advanced an important
public interest, and were conducted pursuant to a written plan,
the trial court’s denial of the defendant’s motion to suppress
evidence of the checkpoint was affirmed). Therefore, as the
trial court determined the checkpoint had a legitimate primary
purpose and that the Brown factors were met, defendant’s
argument is accordingly overruled.
No error.
Judges CALABRIA and GEER concur.