North Carolina Lawyers Weekly
State v. Nolan. (Lawyers Weekly No. 11-07-0414, 26 pp.) (Ann Marie Calabria, J.) Appealed from Forsyth County Superior Court. (James E. Hardin Jr., J.) N.C. App. Click here for the full text of the opinion.
Holding: Where the primary programmatic purpose of the checkpoint at which defendant was stopped was “the detection of drivers operating a motor vehicle while impaired and … not merely to further general crime control,” the trial court properly determined the primary programmatic purpose of the checkpoint was constitutionally permissible.
We affirm the trial court’s denial of defendant’s motion to suppress evidence.
The trial court also determined that the checkpoint was reasonable, applying the test from Brown v. Texas, 443 U.S. 47 (1979), and considering the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.
When the officers stopped defendant and asked him for his license, the officers performed the primary purpose of the checkpoint. As Deputy Moore spoke with defendant, he detected an odor of alcohol and observed two beer bottles missing from a six-pack in defendant’s back seat. Defendant then admitted to Deputy Moore that he consumed alcohol earlier that evening.
Deputy Moore then asked defendant to exit the vehicle to perform a field sobriety test. Deputy Moore’s actions were consistent with the trial court’s conclusion that the checkpoint was also designed to detect “drivers operating a motor vehicle while impaired.”
When Deputy Moore noticed defendant was carrying a small knife, he asked defendant about a bulge in defendant’s pants pocket. Defendant then emptied his pockets, and Deputy Bracken observed in plain view a clear bag containing a substance which he believed to be marijuana.
Although defendant was not charged with driving while impaired, he possessed a weapon, drugs, and drug paraphernalia. The actions taken by Deputies Moore and Bracken were reasonably necessary to maintain their safety during the operation of the checkpoint.
The trial court properly concluded “that upon a consideration of the individual circumstances as applied to the subject case and of the applicable factors regarding the reasonableness of the [checkpoint] the gravity of the public concerns [are directly] served by … the seizure.” Therefore, the first prong of Brown was met.
With regard to the second prong, the trial court’s order found as fact, supported by Officer Griffith’s testimony and Exhibit 1, that (1) the checkpoint was established pursuant to a memorandum published on July 6, 2007, which was prepared from the “standard plan” of the Governor’s Highway Safety program website and without material changes except as to date, time and agencies involved, by the officer in charge, Officer Griffith, and with the designated subject described as “Checking Station Plan,” and that the memorandum was admitted as evidence in a voir dire evidentiary hearing as State’s Exhibit 1;
(2) The checkpoint was conducted on a main thoroughfare of Kernersville and the location was selected, “taking into account the likelihood of detecting impaired drivers, the traffic conditions, the number of vehicles that would likely be stopped and the convenience and safety of the motoring public”; and
(3) The checkpoint had a predetermined starting time of 11 p.m. on July 6, 2007 and a predetermined ending time of 3 a.m. on July 7, 2007.
These findings 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.
Finally, the trial court considered all of the relevant factors under the third Brown prong. These findings included (1) the checkpoint’s location at the intersection of the 800 block of South Main Street and the 800 block of Old Winston Road in Kernersville was predetermined and took into account the traffic conditions, the number of vehicles that would likely be stopped and the convenience and safety of the motoring public, and there was an adjustment to include the exit from the Interstate 40 Highway since some drivers were turning around to avoid the checkpoint;
(2) The steps taken to put drivers on notice of the approaching checkpoint were that signs were set out at the checkpoint alerting all drivers to the checkpoint ahead;
(3) The location for the checkpoint was selected and directed by Officer Griffith;
(4) In accordance with the plan developed from the Governor’s Highway
Safety Program, every vehicle was stopped and each driver was asked for a driver’s license and registration;
(5) Drivers could see visible signs of the officers’ authority because approximately 30 law enforcement officers, in 20 to 25 marked patrol cars with their blue lights flashing, were positioned at the checkpoint, and also stationary and temporary lighting was used to illuminate the area of the checkpoint;
(6) All participating law enforcement officers operated the checkpoint pursuant to the written plan, which included Officer Griffith’s briefing all participants regarding the procedures, equipment, location, and times of operation of the checkpoint;
(7) Officer Griffith was the “Officer-in-Charge” and the supervisor of all the officers participating in the checkpoint; and
(8) Officers from five separate law enforcement agencies cooperated to conduct the checkpoint and agreed to follow the plan. Officer Griffith remained in control of the checkpoint at all times.
These findings indicate the trial court adequately considered the appropriate factors under the third prong of Brown,
The trial court correctly denied defendant’s motion to suppress.
Affirmed.
