State v. McDonald ( 2015 )

NO. COA14-893
NORTH CAROLINA COURT OF APPEALS
Filed: 3 March 2015
STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 10 CRS 211197-99
DERRICK LEE McDONALD
Defendant.
Appeal by defendant by writ of certiorari from order entered
14 July 2011 by Judge Hugh B. Lewis in Mecklenburg County Superior
Court. Heard in the Court of Appeals 3 December 2014.
Roy Cooper, Attorney General, by Joseph L. Hyde, Assistant
Attorney General, for the State.
Staples Hughes, Appellate Defender, by Jon H. Hunt, Assistant
Appellate Defender, for defendant-appellant.
DAVIS, Judge.
Derrick Lee McDonald (“Defendant”) appeals by writ of
certiorari from his convictions of possession with intent to sell
or deliver cocaine and possession of marijuana. On appeal, he
contends that the trial court erred by denying his motion to
suppress. After careful review, we vacate the trial court’s order
and remand for further proceedings consistent with this opinion.
Factual Background
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On 11 March 2010, Detective Brett Riggs (“Detective Riggs”)
with the Charlotte-Mecklenburg Police Department (“CMPD”) prepared
a written operational plan for a checkpoint (“the Checkpoint”) at
the intersection of Ashley Road and Joy Street in Charlotte, North
Carolina. The Checkpoint was conducted that night from 12:34 a.m.
to 1:52 a.m. Every vehicle driving through the Checkpoint was
stopped, and the officers asked the driver of each vehicle for his
or her driver’s license.
During the course of the Checkpoint’s implementation, a
vehicle in which Defendant was riding in the front passenger seat
was stopped. The only other occupant of the vehicle was the
driver.1 When several of the officers approached the vehicle, they
detected a strong odor of marijuana emanating therefrom. Defendant
opened the front passenger door and exited the vehicle. As he did
so, a bag containing 41.4 grams of marijuana, two baggies
containing 2.7 grams of powder cocaine, a digital scale, cell
phones, and a set of keys all fell out of the vehicle. Defendant
was placed under arrest.
On 6 July 2010, Defendant was indicted for (1) possession of
a Schedule VI controlled substance; (2) possession with intent to
sell or deliver a controlled substance; and (3) possession of drug
paraphernalia. On 26 October 2010, Defendant filed in Mecklenburg
1
The record does not contain the driver’s name.
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County Superior Court a motion to suppress all evidence obtained
as a result of the traffic stop based on his assertion that the
Checkpoint was unconstitutional.
A hearing on Defendant’s motion to suppress was heard on 13
July 2011 by Judge Hugh B. Lewis. At the hearing, Detective Riggs
testified, in pertinent part, as follows:
Q. What was the purpose of the license
checkpoint?
A. As a driver safety checkpoint, checking for
valid driver’s license, registration, proper
registration on the vehicles coming through
the checkpoint.
Q. And was there a proper plan for this
checkpoint?
A. Yes, sir. I typed up an operational plan
essentially stating that every car that
approached the checkpoint would be stopped,
the driver would be asked to produce their
driver’s license.
I had a provision in the ops plan that
stated that if a hazard — or if it became a
hazard to conduct the check due to weather,
circumstances, that it would be cancelled.
Additionally if traffic became backed up we
would allow all cars to move through until the
traffic lightened and then we’d begin checking
every car.
During the hearing, the State introduced into evidence the
written plan for the Checkpoint prepared by Detective Riggs. The
written plan stated that the purpose of the Checkpoint was “[t]o
increase police presence in the targeted area while checking for
Operators License and Vehicle Registration violations.” The plan
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also detailed the pattern to which the officers would adhere in
conducting the Checkpoint:
Predetermined Pattern: All vehicles coming
through the check point shall be stopped
unless the Officer in charge determines that
a hazard has developed or that an unreasonable
delay to motorist [sic] is occurring. At that
point all vehicles will be allowed to pass
through until the hazard or delay is cleared.
On 14 July 2011, the trial court entered a written order
denying Defendant’s motion to suppress. Defendant subsequently
entered a plea of guilty. The trial transcript did not reflect
that Defendant intended to appeal the denial of his motion prior
to entering his guilty plea, and no notice of his intention to
appeal the motion was contained in the transcript of plea.
Defendant was sentenced to 6-8 months imprisonment. The sentence
was suspended, and Defendant was placed on 24 months supervised
probation.
Defendant then attempted to appeal the order denying his
motion to suppress. The State filed a motion to dismiss the appeal
on the ground that Defendant had failed to properly preserve his
right to appeal the order. In an unpublished opinion filed on 17
July 2012, we dismissed Defendant’s appeal without prejudice to
his right to seek an evidentiary hearing in superior court for a
determination of whether his guilty plea did, in fact, reserve his
right to appeal the denial of his motion to suppress. State v.
McDonald, 221 N.C. App. 670, 729 S.E.2d 128 (2012) (unpublished).
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Defendant subsequently filed a motion for appropriate relief,
which was heard by the trial court on 1 February 2013. On that
same date, the trial court ordered that Defendant’s plea transcript
be amended to reflect Defendant’s intent to appeal the denial of
his motion to suppress. Defendant filed a petition for writ of
certiorari on 23 December 2013, which this Court granted by order
entered 7 January 2014.
Analysis
Defendant’s sole argument on appeal is that the trial court
erred in denying his motion to suppress. Specifically, Defendant
asserts that the trial court failed to determine (1) the
Checkpoint’s primary programmatic purpose; and (2) the
reasonableness of the Checkpoint.
When reviewing a motion to suppress evidence,
this Court determines whether the trial
court’s findings of fact are supported by
competent evidence and whether the findings of
fact support the conclusions of law. If
supported by competent evidence, the trial
court’s findings of fact are conclusive on
appeal, even if conflicting evidence was also
introduced. However, conclusions of law
regarding admissibility are reviewed de novo.
State v. Jarrett, 203 N.C. App. 675, 677, 692 S.E.2d 420, 423
(citation and internal quotation marks omitted), disc. review
denied, 364 N.C. 438, 702 S.E.2d 501 (2010). In the present case,
the trial court made the following pertinent findings of fact:
1. On July 13, 2011, the defense made a motion
to suppress the checkpoint and any evidence
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produced thereafter on the basis that the
checkpoint was unconstitutional.
2. The State called Detective B. Riggs, the
arresting officer, as a witness.
3. Det. Riggs testified that he was the
officer in charge and that he had developed
the operation plan for the checkpoint that
took place near the intersection of Ashley Rd.
and Joy St. on the evening of March 11, 2010.
4. Det. Riggs also testified that the purpose
of the checkpoint was to check for operator’s
license and vehicle registration and insurance
violations.
5. It was Det. Riggs’s testimony that every
vehicle was to be stopped and checked for
proper license, registration, and insurance,
unless the weather became a hazard or traffic
was unreasonably delayed; in those cases Det.
Riggs said that either the checkpoint would be
shut down or they would allow all vehicles to
pass through until the hazard or delay was no
longer present, at which point they would
resume checking each vehicle.
6. Det. Riggs testified that every vehicle was
stopped.
7. The State entered the physical document of
the operation plan into evidence as State’s
Pre-trial Exhibit #1, which is attached to the
order.
8. The language in the operation plan (State’s
Pre-trial Exhibit #1) laid out the purpose and
pattern of the checkpoint.
a. The purpose of the checkpoint was, “To
increase police presence in the targeted
area while checking for Operator’s
License and Vehicle Registration
violations.”
b. The predetermined pattern was, “All
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vehicles coming through the checkpoint
shall be stopped unless the Officer in
charge determines that a hazard has
developed or that an unreasonable delay
to motorists is occurring. At that point
all vehicles will be allowed to pass
through until the hazard or delay is
cleared.”
The trial court then made the following pertinent conclusions of
law:
1. Under N.C.G.S. § 20-16.3A(a)(2a) [sic], a
pattern is required, but does not need to be
in writing; however, here we have both Det.
Riggs’s testimony and the written operation
plan that express the pattern that was
exercised at the checkpoint.
2. Additionally, N.C.G.S. § 20-16.3A(a)(2)
requires that law-enforcement designate what
they will check for and how the vehicles will
be stopped; Det. Riggs’s testimony and the
written operation plan indicated that all
vehicles would be stopped and that they would
be checking for Operator’s License and Vehicle
Registration violations.
3. In State v. Barnes, the North Carolina
Court of Appeals found that where the findings
showed that a checking station was conducted
in substantial compliance with required
guidelines a motion to suppress was not
proper. State v. Barnes, 123 N.C. App. 144,
472 S.E.2d 784 (1996).
4. Based on Det. Riggs’s testimony and the
written operation plan, the checkpoint
conducted by Det. Riggs was in compliance with
the applicable statute and did not violate the
defendant’s constitutional rights.
In denying Defendant’s motion to suppress, the trial court
relied upon our decision in State v. Barnes, 123 N.C. App. 144,
-8-
472 S.E.2d 784 (1996). In Barnes, the defendant was stopped at a
checkpoint and arrested for driving while impaired. The officers
conducting the checkpoint stopped all vehicles that approached the
checkpoint, the stated purpose of which was “to detect driver’s
license and registration violations as well as other motor vehicle
violations including driving while impaired.” Id. at 146, 472
S.E.2d at 785. The defendant moved to suppress all evidence
stemming from the checkpoint on the ground that it had been
conducted in an unconstitutional manner, and the trial court
granted the defendant’s motion. On appeal, this Court reversed,
holding that
[u]pon careful review of the evidence, we find
that the court’s findings do not support its
conclusion that the checking station was not
conducted in accordance with required
guidelines. Instead, the findings show that
there was substantial compliance with N.C.
Gen. Stat. § 20–16.3A and [State Highway
Patrol] Directive 63. Accordingly, we find no
fourth amendment violation and we reverse the
trial court’s order granting defendant’s
motion to suppress.
Id. at 147, 472 S.E.2d at 785.
Since Barnes was decided, however, this Court has modified
the framework it employs in analyzing Fourth Amendment challenges
to checkpoints based on intervening decisions on this subject from
the United States Supreme Court. We explained this framework in
State v. Veazey, 191 N.C. App. 181, 662 S.E.2d 683 (2008).
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In Veazey, a state trooper set up a driver’s license
checkpoint. When the defendant was stopped at the checkpoint, the
trooper detected a strong odor of alcohol on him and ultimately
arrested him for driving while impaired. At trial, the defendant
moved to suppress evidence stemming from the checkpoint on the
ground that the checkpoint violated his rights under the Fourth
and Fourteenth Amendments. The trial court denied the defendant’s
motion to suppress. Id. at 182-83, 662 S.E.2d at 684-85.
On appeal, we remanded the case to the trial court for new
findings and conclusions, applying the United States Supreme
Court’s decisions in City of Indianapolis v. Edmond, 531 U.S. 32,
148 L. Ed. 2d 333 (2000), and Illinois v. Lidster, 540 U.S. 419, 157
L. Ed. 2d 843 (2004) — both of which were decided after Barnes. We
held that in reviewing a constitutional challenge to a checkpoint,
courts are required to apply a two-part test in order to determine
its reasonableness. Veazey, 191 N.C. App. at 185-86, 662 S.E.2d
at 686-87.
We noted that, as an initial matter, Edmond requires the
identification of the primary programmatic purpose of the
checkpoint.
First, the court must determine the primary
programmatic purpose of the checkpoint. In
Edmond, the United States Supreme Court
distinguished between checkpoints with a
primary purpose related to roadway safety and
checkpoints with a primary purpose related to
general crime control. According to the
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Court, checkpoints primarily aimed at
addressing immediate highway safety threats
can justify the intrusions on drivers’ Fourth
Amendment privacy interests occasioned by
suspicionless stops. However, the Edmond
Court also held that police must have
individualized suspicion to detain a vehicle
for general crime control purposes, and
therefore a checkpoint with a primary purpose
of general crime control contravenes the
Fourth Amendment.
The Supreme Court in Edmond also noted that a
checkpoint with an invalid primary purpose,
such as checking for illegal narcotics, cannot
be saved by adding a lawful secondary purpose
to the checkpoint, such as checking for
intoxicated drivers. Otherwise, according to
the Court, law enforcement authorities would
be able to establish checkpoints for virtually
any purpose so long as they also included a
license or sobriety check. For this reason,
courts must examine the available evidence to
determine the primary purpose of the
checkpoint program.
Id. at 185, 662 S.E.2d at 686 (internal citations, quotation marks,
and brackets omitted).
Next, we addressed the second prong of the test for
determining a checkpoint’s constitutionality based on Lidster:
Second, if a court finds that police had a
legitimate primary programmatic purpose for
conducting a checkpoint, “[t]hat does not mean
the stop is automatically, or even
presumptively, constitutional. It simply
means that [the court] must judge its
reasonableness, hence, its constitutionality,
on the basis of the individual circumstances.”
Lidster, 540 U.S. at 426, 157 L.Ed.2d at 852.
To determine whether a checkpoint was
reasonable under the Fourth Amendment, a court
must weigh the public’s interest in the
checkpoint against the individual’s Fourth
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Amendment privacy interest. See, e.g.,
Martinez–Fuerte, 428 U.S. at 555, 49 L.Ed.2d
at 1126. In Brown v. Texas, 443 U.S. 47, 61
L. Ed. 2d 357 (1979), the United States Supreme
Court held that when conducting this balancing
inquiry, a court must weigh “[(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 51, 61 L.Ed.2d at 362. If, on balance,
these factors weigh in favor of the public
interest, the checkpoint is reasonable and
therefore constitutional. See, e.g., Lidster,
540 U.S. at 427–28, 157 L.Ed.2d at 852–53.
Veazey, 191 N.C. App. at 185-86, 662 S.E.2d at 686-87.
Therefore, it is clear that the analysis employed by this
Court in Barnes has been superseded by decisions from the United
States Supreme Court and that the analytical framework articulated
in Veazey must instead be used in reviewing challenges to the
constitutionality of a checkpoint. Accordingly, we must now
determine whether the trial court properly utilized this framework
in the present case.
I. Primary Programmatic Purpose
Defendant first argues that the trial court failed to
determine the Checkpoint’s primary programmatic purpose.
Specifically, he argues that the trial court found two purposes —
one that was lawful and another that was unlawful — without
determining which of these two purposes was the primary one. We
disagree.
In determining a checkpoint’s legality, “the trial court must
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initially examine the available evidence to determine the purpose
of the checkpoint program.” State v. Gabriel, 192 N.C. App. 517,
521, 665 S.E.2d 581, 585 (2008) (citation and internal quotation
marks omitted). The rationale behind inquiring into a checkpoint’s
primary programmatic purpose is that “[t]his type of searching
inquiry is required to ensure an illegal multi-purpose checkpoint
is not made legal by the simple device of assigning the primary
purpose to one objective instead of the other.” Id. at 522, 665
S.E.2d at 585 (citation and internal quotation marks omitted).
[W]here there is no evidence in the record to
contradict the State’s proffered purpose for
a checkpoint, a trial court may rely on the
testifying police officer’s assertion of a
legitimate primary purpose. However, where
there is evidence in the record that could
support a finding of either a lawful or
unlawful purpose, a trial court cannot rely
solely on an officer’s bare statements as to
a checkpoint’s purpose. In such cases, the
trial court may not simply accept the State’s
invocation of a proper purpose, but instead
must carry out a close review of the scheme at
issue.
Veazey, 191 N.C. App. at 187, 662 S.E.2d at 687-88 (internal
citations, quotation marks, and brackets omitted); see also
Gabriel, 192 N.C. App. at 521, 665 S.E.2d at 585 (“[W]hen a
trooper’s testimony varies concerning the primary purpose of the
checkpoint, the trial court is required to make findings regarding
the actual primary purpose of the checkpoint and to reach a
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conclusion regarding whether this purpose was lawful.” (citation,
internal quotation marks, and ellipses omitted)).
In the present case, the trial court found that “[t]he purpose
of the checkpoint was, ‘To increase police presence in the targeted
area while checking for Operator’s License and Vehicle
Registration violations.’” It is well established that
checkpoints may lawfully be conducted for the purpose of
“verify[ing] drivers’ licenses and vehicle registrations[.]”
State v. Rose, 170 N.C. App. 284, 288, 612 S.E.2d 336, 339, appeal
dismissed and disc. review denied, 359 N.C. 641, 617 S.E.2d 656
(2005).
The trial court’s finding that the Checkpoint’s purpose was
to check for driver’s license and vehicle registration violations
was supported by the testimony of Detective Riggs and the written
plan for the Checkpoint. Defendant contends, however, that the
trial court found the Checkpoint also served the dual purpose of
increasing police presence in the area. He attempts to equate
this latter purpose with a general crime control purpose, which
our courts have held cannot serve as the basis for a checkpoint.
See Veazey, 191 N.C. App. at 185, 662 S.E.2d at 686 (“[P]olice
must have individualized suspicion to detain a vehicle for general
crime control purposes, and therefore a checkpoint with a primary
purpose of general crime control contravenes the Fourth
Amendment.”).
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We reject Defendant’s argument on this issue as we do not
believe an attempt to increase police presence in an affected area
while conducting a checkpoint for a recognized lawful purpose is
akin to operating a checkpoint for the general detection of crime.
The trial court’s reference to increasing police presence was
linked to the permissible purpose of checking for driver’s license
and vehicle registration violations. Defendant does not point to
any evidence in the record suggesting that the Checkpoint was
actually being operated for the purpose of general crime control
or that the stated desire to check for driver’s license and vehicle
registration violations was a mere subterfuge. Moreover, as the
State notes in its brief, any checkpoint inherently results in the
increased presence of law enforcement officers in the subject area.
Accordingly, Defendant’s argument on this issue is overruled.
II. Reasonableness
Defendant’s final argument is that the trial court erred in
failing to adequately determine the reasonableness of the
Checkpoint. We agree.
As discussed above, a trial court’s inquiry does not end with
the finding that a checkpoint has a lawful primary programmatic
purpose.
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
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a balancing of the public’s interest and an
individual’s privacy interest. 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. 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.
State v. Townsend, __ N.C. App. __, __, 762 S.E.2d 898, 907-08
(2014) (internal citations, quotation marks, and brackets
omitted); see also Jarrett, 203 N.C. App. at 679, 692 S.E.2d at
424-25 (“Although the trial court concluded that the checkpoint
had a lawful primary purpose, its inquiry does not end with that
finding. Instead, the trial court must still determine whether
the checkpoint itself was reasonable. . . . 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. . . .” (internal citations and quotation marks omitted)).
We have held that “[t]he 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
assessing the importance of the particular stop to the public.”
Rose, 170 N.C. App. at 294, 612 S.E.2d at 342 (internal citation
omitted).
With regard to “the second Brown prong — the degree to which
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the seizure advanced public interests — the trial court [is]
required to determine whether the police appropriately tailored
their checkpoint stops to fit their primary purpose.” State v.
Nolan, 211 N.C. App. 109, 121, 712 S.E.2d 279, 287 (citation,
internal quotation marks, and brackets omitted), cert. denied, 365
N.C. 337, 731 S.E.2d 834 (2011).
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.
Veazey, 191 N.C. App. at 191, 662 S.E.2d at 690.
Finally, in applying the third Brown factor, “courts 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.” Id. at 192, 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
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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 lynchpins, but instead are
circumstances to be considered as part of the
totality of the circumstances in examining the
reasonableness of a checkpoint.
Id. at 193, 662 S.E.2d at 691 (internal citations, quotation marks,
and brackets omitted).
In conclusion of law 4 in its order, the trial court made the
following determination:
4. Based on Det. Riggs’s testimony and the
written operation plan, the checkpoint
conducted by Det. Riggs was in compliance with
the applicable statute and did not violate the
defendant’s constitutional rights.
We do not believe this bare conclusion is sufficient given
the failure of the trial court to adequately assess the
Checkpoint’s reasonableness under the constitutional framework set
out in Veazey and applied in other recent cases from our Court.
While it appears that evidence was received at the suppression
hearing as to many of the factors that are relevant under the Brown
test, the trial court’s order lacks express findings on a number
of these issues.
With regard to the first prong of the Brown test, the trial
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court made no findings concerning the gravity of the public
concerns served by the Checkpoint. While — as discussed above —
checking for driver’s license and vehicle registration violations
is a permissible purpose for the operation of a checkpoint, the
identification of such a purpose does not exempt the trial court
from determining the gravity of the public concern actually
furthered under the circumstances surrounding the specific
checkpoint being challenged. See Rose, 170 N.C. App. at 293, 612
S.E.2d at 342 (“[E]ven if a checkpoint is for one of the
permissible purposes, that does not mean the stop is automatically,
or even presumptively, constitutional. It simply means that we
must judge its reasonableness, hence, its constitutionality, on
the basis of the individual circumstances.” (citation, internal
quotation marks, and brackets omitted)).
As to the second Brown prong, there were no findings made by
the trial court regarding a number of the factors relevant to the
issue of whether the Checkpoint was appropriately tailored to meet
its primary purpose. For example, the trial court’s order failed
to address (1) why the intersection of Ashley Road and Joy Street
was chosen for the Checkpoint; (2) whether the Checkpoint had a
predetermined starting or ending time; and (3) whether there was
any reason why that particular time span was selected. Veazey,
191 N.C. App. at 191, 662 S.E.2d at 690.
Finally, with regard to the third Brown prong, the trial court
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made no findings addressing whether the location of the Checkpoint
was selected by Detective Riggs or by his supervisor or the manner
in which the officers conducting the Checkpoint were subject to
supervision. In addition, no findings were made as to whether (1)
the officers took steps to put drivers on notice of an approaching
checkpoint; (2) drivers could see visible signs of the officers’
authority; and (3) the officers conducting the checkpoint were
provided with any oral or written guidelines. Id. at 193, 662
S.E.2d at 691.
We do not mean to imply that the factors discussed above are
exclusive or that trial courts must mechanically engage in a rote
application of them in every order ruling upon a motion to suppress
in the checkpoint context. Rather, our holding today simply
reiterates our rulings in Veazey and its progeny that in order to
pass constitutional muster, such orders must contain findings and
conclusions sufficient to demonstrate that the trial court has
meaningfully applied the three prongs of the test articulated in
Brown.
As such, we must vacate the trial court’s order and remand so
that the trial court can make appropriate findings as to the
reasonableness of the Checkpoint under the Fourth Amendment. See
Rose, 170 N.C. App. at 298-99, 612 S.E.2d at 345 (“Based on our
review of the trial court’s order, it appears that the trial court
concluded that the checkpoint was reasonable based solely on the
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purpose of the checkpoint and the fact that the officers stopped
every car. In doing so, the court addressed the first prong of
the . . . analysis and part of the third prong. The court made no
findings regarding the tailoring of the checkpoint to the purpose
(the second prong) and failed to consider all of the circumstances
relating to the discretion afforded the officers in conducting the
checkpoint (the third prong). Accordingly, we remand for further
findings as to each of the . . . factors and a weighing of those
factors to determine whether the checkpoint was reasonable.”);
Veazey, 191 N.C. App. at 194-95, 662 S.E.2d at 692 (“[T]hese
findings alone cannot support a conclusion that the checkpoint was
reasonable because the trial court did not make adequate findings
on the first two Brown prongs. . . . The trial court . . . was
required to explain why it concluded that, on balance, the public
interest in the checkpoint outweighed the intrusion on Defendant’s
protected liberty interests. The trial court’s written order,
however, contains no such explanation. Therefore, if the trial
court determines on remand that the State’s primary purpose for
the checkpoint was lawful, it must also issue new findings and
conclusions regarding the reasonableness of the checkpoint.”).2
2
We further note that a number of the trial court’s “findings” in
its order are not actual findings but rather are merely recitations
of testimony. See State v. Derbyshire, __ N.C. App. __, __, 745
S.E.2d 886, 892-93 (2013) (“[A trial court’s] mere recitation of
testimony . . . is not sufficient to constitute a valid finding of
fact. . . . Findings of fact must be more than a mere summarization
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Conclusion
For the reasons stated above, we vacate the trial court’s
order denying Defendant’s motion to suppress and remand for further
proceedings consistent with this opinion.
VACATED AND REMANDED.
Judges CALABRIA and ELMORE concur.
or recitation of the evidence . . . [O]ur review is limited to
those facts found by the trial court and the conclusions reached
in reliance on those facts, not the testimony recited by the trial
court in its order.” (internal citations, quotation marks, and
brackets omitted)), disc. review denied, __ N.C. __, 753 S.E.2d
785 (2014). We therefore instruct the trial court on remand to
make findings of fact based upon its evaluation of the evidence
and not to merely recite the testimony of Detective Riggs and the
contents of the written plan for the Checkpoint.