State v. Mitchell , 358 N.C. 63 ( 2004 )

ORR, Justice.

On 6 February 2000, defendant David Eric Mitchell was arrested and charged with driving while impaired in violation of N.C.G.S. § 20-138.1. Defendant was found guilty of the offense in District Court, Gaston County. He appealed to Superior Court and, on 17 September 2001, filed a pre-trial motion to suppress on the ground that his stop and arrest following his failure to stop at a driver’s license checkpoint violated the Fourth and Fourteenth Amendments of the United States Constitution. The Superior Court granted defendant’s motion to suppress defendant’s stop and arrest, finding that defendant “was stopped as a direct result of a roadblock or checking station;” that “the stopping of the Defendant’s vehicle at the February 6, 2000, check point was a seizure;” and that the checkpoint “violates the United States and North Carolina Constitutions” because of the “unbridled and unrestrained discretion” granted to the officers in the field. The State appealed the trial court’s grant of defendant’s motion to the Court of Appeals.

On appeal, the Court of Appeals concluded that the trial court needed only to address the suppression motion in the context of the legality of defendant’s stop and arrest. In support of its decision, the Court of Appeals stated that the checkpoint “was not an unreasonable detention and therefore was valid under the Fourth Amendment.” State v. Mitchell, 154 N.C. App. 186, 189-90, 571 S.E.2d 640, 643 (2002). We agree with the Court of Appeals regarding the legality of the checkpoint; however, we conclude that defendant’s stop and arrest was proper without resting our decision on the constitutionality of the checkpoint. Accordingly, we affirm the decision of the Court of Appeals as modified herein.

The State’s evidence showed the following: On 6 February 2000, Boyce Falls, a police officer with the Belmont Police Department, decided to set up a random driver’s license check on U.S. Highway 29/74 to check westbound traffic for valid licenses and registrations. Falls testified that he had “standing permission” from Belmont Police Captain William Jonas to conduct driver’s license checkpoints. Falls spoke with his shift sergeant before conducting the checkpoint to ensure that the sergeant had enough manpower for the checkpoint. Pursuant to the Belmont Police Department’s requirements, three police officers were present at the checkpoint. Also, pursuant to these requirements, the officers conducted the checkpoint in a safe area, wore their traffic vests, held flashlights, which they used to direct automobiles to stop, and stopped every vehicle in the westbound lanes of U.S. 29/74. While these requirements were not stated in written form, Captain Jonas testified about them at the suppression hearing.

On the night in question, at 4:15 a.m., defendant approached the checkpoint, which was evidenced by the continuous activation of the blue lights on the patrol cars. Falls testified that as defendant approached the checkpoint, he shined his flashlight on his left hand, directing defendant to stop. Defendant did not stop. Officer Falls stated that:

The closer [defendant] got — and he got very, very close to me— within twenty-five yards of me — I shined the flashlight in his eyes and said stop, whoa; and then I put my flashlight back down on my hand; and when I realized that he was only speeding up, I jumped out of the road and went and got in my vehicle so I could pursue after him because I knew he wasn’t going to stop at that time.

Next, Falls pursued defendant with the blue lights and siren of his patrol car activated. Defendant finally stopped one and one-half miles beyond the checkpoint. We have no evidence in the record of what transpired after defendant stopped; the only evidence before us comes from the suppression hearing, and relates to events that occurred prior to the stop.

The only issue raised by defendant and addressed by the trial court at the suppression hearing was whether the stop and arrest should be suppressed. The constitutionality of the checkpoint was the rationale for defendant’s argument that the stop and arrest should be suppressed because the checkpoint was unconstitutionally authorized. While concluding that the checkpoint was constitutional, we also conclude that the trial court erred by analyzing defendant’s stop and arrest in terms of the legality of the checkpoint. Defendant failed to stop at the checkpoint and in fact, according to Officer Falls’ testimony, increased his speed and forced Falls to quickly move out of the path of the oncoming vehicle. Therefore, whether defendant’s stop and arrest should be suppressed turns on whether Officer Falls had reasonable articulable suspicion to stop defendant after defendant drove through the checkpoint and nearly struck Falls with the vehicle. We conclude that Officer Falls did have reasonable articulable suspicion to stop defendant. Therefore, the trial court erred by suppressing defendant’s stop and arrest.

Police officers effectuate a seizure when they stop a vehicle at a checkpoint. City of Indianapolis v. Edmond, 531 U.S. 32, 40, 148 L. Ed. 2d 333, 342 (2000). But, “[t]he Fourth Amendment does not treat a motorist’s car as his castle.” Illinois v. Lidster, - U.S. -,-,- L. Ed. 2d —,- (Jan. 13, 2004) (No. 02-1060). And checkpoint stops conform to the Fourth Amendment if they are reasonable. Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 450, 110 L. Ed. 2d 412, 420 (1990). “[W]e must judge [the] reasonableness [of a checkpoint stop], hence, its constitutionality, on the basis of individual circumstances.” Lidster at -, - L. Ed. 2d at —. In the case at bar, we conclude that the checkpoint is reasonable, and thus conforms to the Fourth Amendment.

Because checkpoint stops are minimally intrusive, and are not subjective stops, like those arising from roving patrols, checkpoints are viewed with less scrutiny than are roving patrols. As the U.S. Supreme Court stated in United States v. Ortiz, 422 U.S. 891, 894-95, 45 L. Ed. 2d 623, 628 (1975):

[T]he circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving-patrol stop. Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists. At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers’ authority, and he is much less likely to be frightened or annoyed by the intrusion.

In the instant case, the checkpoint stop was only a minimal intrusion.

Relying on Sitz, 496 U.S. 444, 110 L. Ed. 2d 412, where the United States Supreme Court upheld a sobriety checkpoint conducted pursuant to written guidelines, defendant argues and the dissent agrees that the Fourth Amendment prohibits officers from conducting checkpoints without written guidelines. We disagree. Although the Michigan State Police in Sitz conducted the sobriety checkpoint pursuant to written guidelines, the United States Supreme Court did not uphold the checkpoint solely because of those written guidelines. Id. at 453, 110 L. Ed. 2d at 422. The Court also found the checkpoint constitutional because it was a checkpoint, not a roving patrol, and because the police stopped every approaching vehicle. Similarly, in the instant case, the Belmont Police stopped every oncoming vehicle.

Defendant also claims Delaware v. Prouse, 440 U.S. 648, 59 L. Ed. 2d 660 (1979), prohibits police officers from conducting driver’s license checkpoints without written guidelines. In Prouse, 440 U.S. 648, 59 L. Ed. 2d 660, the United States Supreme Court held that the Fourth Amendment prohibits police from randomly stopping motorists to check their driver’s licenses and registrations. Id. at 663, 59 L. Ed. 2d at 673. The Court condemned the “unbridled discretion” exercised by law enforcement officers conducting these spot checks. Id. at 661, 59 L. Ed. 2d at 672. However, as defendant concedes, the Court in Prouse sanctioned checkpoints like the one at issue, stating: “Questioning of all oncoming traffic at roadblock-type stops is one possible alternative [to random stops].” Id. at 663, 59 L. Ed. 2d at 674. As previously noted, the officers stopped all oncoming traffic at the checkpoint.

Neither Sitz, 496 U.S. 444, 110 L. Ed. 2d 412, Prouse, 440 U.S. 648, 59 L. Ed. 2d 660, nor the Fourth Amendment requires police departments to have written guidelines before conducting driver’s license checkpoints, nor do we find any such requirement under our state constitution. Therefore, we decline to conclude that checkpoints conducted without written guidelines are per se unconstitutional. Here adequate internal guidelines were testified to and implemented.

Defendant also contends the checkpoint is unconstitutional because Officer Falls, who established the checkpoint, failed to obtain supervisory permission before creating it. To support this contention, defendant relies heavily on Prouse, 440 U.S. 648, 59 L. Ed. 2d 660, in which the United States Supreme Court held that a police officer abused his discretion by randomly stopping a driver to check the driver’s license and registration. Defendant contends that to prevent police officers from abusing their discretion, this Court should require them to obtain supervisory permission before creating driver^ license checkpoints. But, in the case subjudice, Officer Falls had supervisory permission to create the checkpoint. Officer Falls testified that before conducting the checkpoint, he “spoke with the shift sergeant. . . [t]o make sure [the sergeant] ha[d] the manpower” for Falls to set up the checkpoint. Additionally, Falls testified that he had “standing permission” from Captain Jonas to conduct driver’s license checkpoints as long as he followed Jonas’ guidelines. Captain Jonas’ guidelines, as testified to at the hearing, included: requiring his police officers to conduct driver’s license checkpoints in safe places that had proper lighting; requiring officers to activate their blue lights while conducting a checkpoint; requiring officers to stop all cars approaching a checkpoint; and requiring at least three officers to be present at a checkpoint.

We conclude that Falls’ standing permission to set up checkpoints pursuant to Captain Jonas’ oral guidelines and Officer Falls’ call to his supervisor before creating the checkpoint at issue are constitutionally sufficient restraints to keep Falls from abusing his discretion. Because police officers are not constitutionally mandated to conduct driver’s license checkpoints pursuant to written guidelines; because Officer Falls received sufficient supervisory authority to conduct the checkpoint; and because the officers stopped all oncoming traffic at the checkpoint, we conclude that the checkpoint was constitutional.

Finally, we note that in the United States Supreme Court’s most recent decision on the constitutionality of checkpoints, the Court neither addressed the need for officers to set up checkpoints pursuant to written guidelines nor the need for officers to obtain supervisory permission before creating a checkpoint. Lidster. - U.S.-,-L. Ed. 2d-. That neither the parties in Lidster, nor the Supreme Court itself were compelled to address these issues indicates the issues are not lynchpins for determining the constitutionality of a checkpoint.

Lidster involved a roadblock set up to seek information about a prior crime, and not a roadblock set up to check drivers’ licenses and registrations. But here, defendant’s argument requesting this Court to impose additional constraints on police officers who set up driver’s license checkpoints would arguably apply to police officers who set up information-seeking checkpoints. Thus, we conclude that the absence in Lidster of any focus on an issue dealing with supervisory permission and written guidelines indicates that these issues do not merit a constitutionally mandated reversal in a roadblock case such as the one sub judice.

Alternatively, because defendant did not stop at the checkpoint, we also consider whether Officer Falls had reasonable articulable suspicion to stop defendant after defendant ignored the officer’s order to stop and forced Falls to jump out of the road to avoid being struck by defendant’s vehicle. A police officer may stop a person if the officer has “reasonable articulable suspicion” that the person was engaged in criminal activity prior to the seizure. State v. Foreman, 351 N.C. 627, 631, 527 S.E.2d 921, 923 (2000). “When an officer observes conduct which leads him reasonably to believe that criminal conduct may be afoot, he may stop the suspicious person to make reasonable inquiries.” State v. Pearson, 348 N.C. 272, 275, 498 S.E.2d 599, 600 (1998).

Officer Falls had reasonable articulable suspicion to stop defendant. As the United States Supreme Court recently stated: “Headlong flight — wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Illinois v. Wardlow, 528 U.S. 119, 124, 145 L. Ed. 2d 570, 576 (2000) (holding that a police officer had reasonable articulable suspicion to stop a defendant where defendant, without provocation, fled upon seeing police officers). In the case sub judice, defendant accelerated his vehicle when Falls ordered him to stop, and defendant’s vehicle nearly struck Falls. Defendant’s actions constituted evidence of flight. This flight and the surrounding circumstances gave Officer Falls reasonable articulable suspicion to stop defendant. We note, however, that the facts of the case do not deal with the circumstance where a driver makes a legal turn away from a checkpoint.

Furthermore, without concluding that defendant committed any crimes, we note that Falls had reasonable articulable suspicion that defendant committed several crimes: assaulting a police officer, “attempting to elude a law enforcement officer who is in the lawful performance of his duties” in violation of N.C.G.S. § 20-141.5(a) (2001), and driving a vehicle “carelessly and heedlessly in willful or wanton disregard of the rights or safety of others,” in violation of the reckless driving statute, N.C.G.S. § 20440(a) (2001).

Falls also had reasonable articulable suspicion that defendant committed an assault. “There is no statutory definition of assault in North Carolina, and the crime of assault is governed by common law rules.” State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967). This Court defines assault as, “ ‘an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or menace of violence must be sufficient to put a person of reasonable firmness in fear of immediate bodily harm.’ ” Id. (quoting 1 Strong’s N.C. Index, Assault and Battery, § 4, p. 182 [1957]). Because defendant accelerated his vehicle as he directly approached Officer Falls, Falls could have determined that defendant was attempting to injure him. Hence, Falls had reasonable articulable suspicion that defendant committed an assault.

Moreover, the fact that defendant accelerated when Officer Falls requested him to stop, and that defendant nearly hit Falls, provided Falls with reasonable articulable suspicion that defendant violated N.C.G.S. § 20-141.5(a) (2001), which states: “It shall be unlawful for any person to operate a motor vehicle on a street, highway, or public vehicular area while fleeing or attempting to elude a law enforcement officer who is in the lawful performance of his duties,” and N.C.G.S. § 20-140(a) (2001), which states: “Any person who drives any vehicle upon a highway or any public vehicular area carelessly and heedlessly in willful or wanton disregard of the rights or safety of others shall be guilty of reckless driving.” Therefore, regardless of the constitutional status of the checkpoint, Officer Falls properly stopped and seized defendant. Accordingly, the trial court erred in suppressing evidence of defendant’s stop and arrest.

To follow the dissent’s argument, to its logical and practical conclusion under the facts of this case would result in the inability of a law enforcement officer to stop a motorist who disobeyed the officer’s request to stop at a roadblock. The dissent attempts to avoid this conclusion by stating that: “Police officers may certainly develop a reasonable articulable suspicion to stop a car based upon their observations, unrelated to the checkpoint, that a crime has been committed.” Even with this acknowledgment, under the dissent, a motorist who “guesses” correctly that a checkpoint is not validly set up would appear to have carte blanche to ignore the checkpoint absent circumstances unrelated to the checkpoint.

MODIFIED AND AFFIRMED.