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Criminal Practice – DWI – Constitutional – Search & Seizure – Driver’s License Checkpoint

State v. Kincer. (Lawyers Weekly No. 10-16-1111, 24 pp.) (Sam Ervin IV, J.) Appealed from Pitt County Superior Court. (W. Russell Duke Jr., J.) N.C. App. Unpub. Click here for the full text of the opinion.

Holding: The Highway Patrol’s drivers’ license checkpoint was set up according to the applicable statute and agency policy, and it did not violate defendant’s constitutional right against searches and seizures. Minor administrative discrepancies did not affect defendant, who smelled of alcohol and was later determined to have a blood alcohol content of 0.12.

We affirm the trial court’s denial of defendant’s motion to suppress evidence from the checkpoint.

The trial court found, “3. Although there were two HP-14’s [the Highway Patrol form used to authorize a checkpoint] for the same location but the times and lead trooper were different, there was only one checking station, and the HP-14 that controlled this checkpoint is state[‘s] exhibit one which is incorporated by reference as part of this order.

“4. The two HP-14’s were the result of an administrative error and in no way prejudiced the defendant.”

According to Sergeant Joseph Collins, although State’s Exhibit No. 1 specified a different time period for the operation of the checkpoint than defendant’s Exhibit No. 1A, he intended that the checkpoint operate from 6 p.m. to 8:30 p.m. This evidence, without more, supports the trial court’s determination that the HP-14 form introduced into evidence as State’s Exhibit No. 1 controlled the May 17, 2008, checkpoint.

In addition, in light of Sgt. Collins’ testimony that the HP-14 form introduced into evidence as State’s Exhibit No. 1 controlled the checkpoint, the fact that the discrepancies between the two forms were relatively minor, and the fact that there was no stated explanation for the discrepancy between the two HP-14 forms contained in the record, it was not unreasonable for the trial court to conclude that an administrative error caused the creation of multiple HP-14 forms.

In any event, Trooper Deans cited defendant for DWI at a time which was within the operating hours set out in both HP-14 forms. In addition, even though there is usually only one lead trooper per checkpoint, nothing prohibits the designation of multiple lead troopers for a checkpoint.

G.S. § 20-16.3A(d) explicitly provides that the location at which a checkpoint is operated “shall not be grounds for a motion to suppress or a defense to any offense arising out of the operation of a checking station.” Defendant has not challenged the constitutionality of G.S. § 20-16.3A(d) or otherwise demonstrated that any deficiencies in the decision concerning the checkpoint’s location justify suppression of any evidence obtained as a result of a stop conducted at that checkpoint in light of G.S. § 20-16.3A(d).

Assuming for purposes of discussion that the trial court erroneously found as a fact that the checkpoint location was selected for safety-related reasons and because it had been used successfully in the past, defendant has not established that any such error contributed to the denial of his suppression motion.

The evidence tends to show that the checkpoint was operated for the legitimate purpose of checking motorists’ driver’s licenses.

The record is devoid of evidence tending to contradict the stated objective of the checkpoint as described by Sgt. Collins. Thus, the trial court did not err by concluding that the primary purpose of the checkpoint was an appropriate one.

Although a decision to set up the checkpoint was made and implemented in a relatively short period of time, there is no indication that the times during which the checkpoint was in existence were determined for any sort of arbitrary reason or that appropriate approvals were not obtained. The instructions given to participating troopers clearly required them to focus on identifying unlicensed drivers and did not authorize a general attempt to ferret out any and all types of criminal activity. In addition, Sgt. Collins testified that the participating troopers complied with the plan established for the checkpoint and that the policies outlined in the Highway Patrol’s Directive K.4 were in effect throughout its operation.

The undisputed evidence in the record also establishes, contrary to defendant’s contention that Sgt. Collins was acting in a supervisory role throughout the entire time that the checkpoint was in operation.

The trial court did not err by determining that the operation of the checkpoint was narrowly tailored to achieve the goal of identifying and dealing with unlicensed drivers.

All five officers at the checkpoint activated the blue lights on their vehicles. Hence, the troopers were not required to post signs or other markers alerting the public at the checkpoint.

Further, we see no basis for concluding that Sgt. Collins’ presence at and participation in the checkpoint’s operation somehow converted him from a supervisor to a line trooper given the undisputed evidence establishing that he authorized the checkpoint and provided the participating troopers with their instructions.

Finally, the instructions given to participating troopers sharply circumscribed the extent of their discretion to question and obtain information from motorists entering the checkpoint.

The trial court correctly concluded that the participating troopers’ ability to exercise investigative discretion was minimal and that the operation of the checkpoint did not violate Defendant’s rights under the Fourth and Fourteenth Amendments.

The checkpoint also complied with the applicable statute and Highway Patrol policy.

Evidence in the record establishes that Sgt. Collins had the authority to authorize the checkpoint. In addition, the undisputed evidence demonstrates that participating troopers were directed to ask the drivers of all vehicles that entered the checkpoint to produce their licenses and instructed to do nothing other than to engage the stopped drivers in a brief conversation, ask to see the stopped drivers’ drivers licenses and observe anything that might be in plain view in the interior of the stopped automobiles.

Although there were two slightly different HP-14 forms relating to the May 17, 2008, checkpoint, the discrepancy between these two forms did not result in a deviation from applicable Highway Patrol policy given that Sgt. Collins signed both forms, that both forms listed the same location for the checkpoint, that Directive K.4 only requires that an “approximate time of operation” be specified, and that Directive K.4 does not mandate the designation of a specific number of lead troopers.

Motorists approaching the checkpoint were provided with adequate notice because the blue lights on all five patrol vehicles present at the checkpoint were activated throughout the checkpoint’s existence and because each participating trooper wore a green florescent vest clearly marked “SHP.”

Finally, the actual stopping of vehicles entering the checkpoint was conducted in accordance with the instructions that were given to participating troopers. As a result, the record evidence clearly supports the trial court’s conclusion that “the checking station complied with G.S. § 20-16.3A” and establishes that the checkpoint was conducted consistently with Directive K.4.

No error.

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