On the evening of 24 April 2003, several members of the Onslow
County Sheriff's Department conducted a checkpoint on Queens Haven
Road in Hubert, North Carolina. Four of the five officers
participating in the checkpoint were members of the Sheriff's
Department's Narcotics Division. The checkpoint commenced at
approximately 9:15 p.m.
A half-hour later, defendant arrived at the checkpoint,
driving a car also occupied by Kevin Davis and Richard Wilson, whois a paraplegic. Deputy Anthony Horne approached defendant's
vehicle and asked for his driver's license and registration. From
the driver's side of defendant's car, Sgt. Richard Baumgarner
scanned the interior of the car. Sgt. Baumgarner noticed that
Davis, who was sitting on the rear seat along with a two- to
three-foot mounted marlin and a small cooler, had his feet on top
of a green backpack and "seemed nervous." Sgt. Baumgarner
testified that he believed Davis "was trying to hide the bag with
his feet."
Sgt. Baumgarner asked Davis, through the driver's window, what
was in the backpack, but Davis simply "looked away." Sgt.
Baumgarner then walked around the car to the rear passenger side
window where Davis was sitting. Sgt. Baumgarner asked Davis to
roll down the window and again asked what was inside the backpack.
Defendant, sitting in the front driver's seat, said that the
backpack contained "dirty clothes." Davis agreed that the bag
contained dirty clothes. Sgt. Baumgarner then again asked, "[W]hat
do you have in the backpack, can I check it?" Defendant replied
that they needed "to get going" because Wilson, the front-seat
passenger, needed to use the bathroom. Sgt. Baumgarner responded,
"this will only take a second" and again asked, "Can I see what's
in the bag?" According to Sgt. Baumgarner, Davis reluctantly
"opened the bag slowly" and let Sgt. Baumgarner see inside.
Inside the backpack were various articles of clothing and a
black garbage bag. Sgt. Baumgarner was able to observe a clear
plastic bag inside the black garbage bag that contained two bags ofwhat Sgt. Baumgarner believed to be marijuana. At that point, Sgt.
Baumgarner reached inside defendant's vehicle and retrieved the
green backpack from Davis. Sgt. Baumgarner asked Davis to step out
and walk to the rear of the car. While holding the backpack, Sgt.
Baumgarner felt what he believed to be a gun. After he notified
the other officers at the checkpoint of that fact, they approached
defendant's car and took defendant, Davis, and Wilson into custody.
Upon searching the backpack, Sgt. Baumgarner found a loaded .38
caliber revolver and approximately 1 1/2 pounds of marijuana.
Defendant stated that the gun and the marijuana was his.
Following the discovery of the weapon and the marijuana, the
officers searched defendant's car. Inside the vehicle, the
officers found a black backpack containing defendant's passport,
defendant's North Carolina driver's license, and several bags of
marijuana seeds. The officers arrested defendant, Davis, and
Wilson. A search of defendant's pants pockets incident to his
arrest yielded 4.8 grams of marijuana, a package of rolling papers,
and $883.00 in cash.
On 8 July 2003, defendant was indicted for possession with
intent to manufacture, sell, and deliver marijuana; possession of
a firearm by a felon; manufacturing marijuana; possession of drug
paraphernalia; maintaining a vehicle for the keeping and selling of
controlled substances; and carrying a concealed weapon. Prior to
trial, defendant filed a motion to suppress the evidence seized in
connection with the stop of his vehicle. In an order entered 3
December 2003, the trial court denied defendant's motion, anddefendant was tried the week of 8 December 2003. On 12 December
2003, the jury found defendant guilty of possession with intent to
manufacture, sell, and deliver marijuana; manufacturing marijuana;
possession of drug paraphernalia; and possession of a firearm by a
felon. The trial court sentenced defendant to 16 to 20 months
imprisonment and six to eight months supervised probation.
Defendant timely appealed to this Court.
[1] As an initial matter, the State argues that defendant
waived his right to argue this issue on appeal because following
the trial court's denial of the motion to suppress, defendant didnot renew his objection when the evidence was actually offered at
trial. While this contention would have once been valid, State v.
Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999), our legislature
has recently amended Rule 103 of the Rules of Evidence to provide:
"Once the court makes a definitive ruling on the record admitting
or excluding evidence, either at or before trial, a party need not
renew an objection or offer of proof to preserve a claim of error
for appeal." N.C.R. Evid. 103(a)(2).
This amendment was effective 1 October 2003 and is applicable
to rulings on evidence made on or after that date. Since the trial
in this case occurred two months following the effective date of
the amendment, once the trial court denied defendant's motion to
suppress, he was not required to object again at trial in order to
preserve his argument for appeal.
[2] As our Supreme Court acknowledged in
State v. Mitchell,
358 N.C. 63, 66, 592 S.E.2d 543, 545 (2004), "[p]olice officers
effectuate a seizure when they stop a vehicle at a checkpoint." As
with all seizures, checkpoints conform with the Fourth Amendment
only "if they are reasonable."
Id. It is well-established that
"[a] search or seizure is ordinarily unreasonable in the absence of
individualized suspicion of wrongdoing."
City of Indianapolis v.
Edmond, 531 U.S. 32, 37, 148 L. Ed. 2d 333, 340, 121 S. Ct. 447,
451 (2000).
The Supreme Court has, however, allowed brief, suspicionless
seizures at fixed checkpoints designed to intercept illegal aliens,
United States v. Martinez-Fuerte, 428 U.S. 543, 49 L. Ed. 2d 1116,
96 S. Ct. 3074 (1976); sobriety checkpoints,
Michigan Dep't of
State Police v. Sitz, 496 U.S. 444, 110 L. Ed. 2d 412, 110 S. Ct.
2481 (1990); and checkpoints to verify drivers' licenses and
vehicle registrations,
Delaware v. Prouse, 440 U.S. 648, 59 L. Ed.
2d 660, 99 S. Ct. 1391 (1979). The Supreme Court has also recently
upheld a checkpoint "where police stopped motorists to ask them for
information about a recent hit-and-run accident."
Illinois v.
Lidster, 540 U.S. 419, 421, 157 L. Ed. 2d 843, 849, 124 S. Ct. 885,
888 (2004).
On the other hand, the Supreme Court has held: "We decline to
suspend the usual requirement of individualized suspicion where the
police seek to employ a checkpoint primarily for the ordinary
enterprise of investigating crimes. We cannot sanction stops
justified only by the generalized and ever-present possibility that
interrogation and inspection may reveal that any given motorist has
committed some crime."
Edmond, 531 U.S. at 44, 148 L. Ed. 2d at
345, 121 S. Ct. at 455. The Court further ruled that "[b]ecause
the
primary purpose of the Indianapolis checkpoint program is
ultimately indistinguishable from the general interest in crime
control, the checkpoints violate the Fourth Amendment."
Id. at 48,
148 L. Ed. 2d at 347-48, 121 S. Ct. at 458 (emphasis added).
A.
Determination of the Programmatic Purpose
As the State acknowledges, in considering the
constitutionality of a checkpoint, a trial court must first
"examine the available evidence to determine the primary purpose ofthe checkpoint program."
Id. at 46, 148 L. Ed. 2d at 347, 121 S.
Ct. at 457. The Supreme Court has stressed, however, that a trial
court may not "simply accept the State's invocation" of a proper
purpose, but instead must "carr[y] out a close review of the scheme
at issue."
Ferguson v. City of Charleston, 532 U.S. 67, 81, 149 L.
Ed. 2d 205, 218, 121 S. Ct. 1281, 1290 (2001) (internal quotation
marks omitted). The Court must "consider all the available
evidence in order to determine the relevant primary purpose."
Id.,
149 L. Ed. 2d at 219, 121 S. Ct. at 1290. The trial court's order
in this case does not reflect that the court conducted this review
in reaching its decision.
In
Edmond, the Supreme Court emphasized "that the purpose
inquiry in this context is to be conducted only at the
programmatic
level and is not an invitation to probe the minds of individual
officers acting at the scene."
Edmond,
531 U.S. at 48, 148 L. Ed.
2d at 347, 121 S. Ct. at 457 (emphasis added). In this case,
however, the trial court simply accepted, without comment, the
field officers' label of the checkpoint as a license and
registration checkpoint. There is no finding as to the
programmatic purpose _ as opposed to the field officers' purpose _
for the checkpoint at issue.
See People v. Jackson, 99 N.Y.2d 125,
131-32, 782 N.E.2d 67, 71, 752 N.Y.S.2d 271, 275 (2002) ("Under the
holding in
City of Indianapolis, the People have the burden of
establishing that the primary
programmatic objective (not the
subjective intent of the participating officers) for initiating a
suspicionless vehicle stop procedure was not merely to furthergeneral crime control . . . ."). Nor does the record or the
transcript indicate that the trial court conducted "a close review"
of "all the available evidence" prior to accepting the officers'
labeling of this checkpoint as a license and registration
checkpoint.
Ferguson, 532 U.S. at 81, 149 L. Ed. 2d at 218-19, 121
S. Ct. at 1290 (internal quotation marks omitted).
Further, the Supreme Court has held that a trial court cannot
avoid making a determination of the primary programmatic purpose
simply by finding that a checkpoint had at least one lawful
purpose, such as "keeping impaired motorists off the road and
verifying licenses and registrations."
Edmond, 531 U.S. at 46, 148
L. Ed. 2d at 346-47, 121 S. Ct. at 457. As the Court explained,
"[i]f this were the case . . ., law enforcement authorities would
be able to establish checkpoints for virtually any purpose so long
as they also included a license or sobriety check."
Id., 148 L.
Ed. 2d at 347, 121 S. Ct. at 457. As a leading commentator has
written: "Surely an illegal multi-purpose checkpoint cannot be
made legal by the simple device of assigning 'the primary purpose'
to one objective instead of the other, especially since that change
is unlikely to be reflected in any significant change in the
magnitude of the intrusion suffered by the checkpoint detainee."
4 Wayne R. LaFave,
Search and Seizure § 9.7(b), at 709 (4th ed.
2004).
This is not a case in which all of the evidence suggests that
the checkpoint was for the constitutional purpose of examining
licenses and registrations. The State offered the testimony ofthree of the five field officers conducting the checkpoint. There
was no evidence of purpose offered other than that of the
"individual officers acting at the scene."
Edmond, 531 U.S. at 48,
148 L. Ed. 2d at 347, 121 S. Ct. at 457. One of those officers
confirmed that the checkpoint was requested by Deputy Ides, a
uniformed patrol officer assigned to the area who also participated
in conducting the checkpoint. Deputy Ides did not testify and,
therefore, the State did not even offer evidence of his purpose in
requesting the checkpoint. The evidence that was presented would
support a finding that the programmatic purpose _ to the extent one
existed at all _ may well have been general crime detection with an
emphasis on narcotics interdiction.
Four of the five officers conducting the checkpoint were
detectives with the Narcotics Division. The fifth officer was
Deputy Ides, who requested this checkpoint. The testimony of the
Narcotics Division detectives reveals that the Narcotics Division
is responsible for these checkpoints on their own:
Q. Officer Baumgarner, on this date do you
remember when the request was made for a
driver's license check point set up on Queen's
Haven Road?
A. No, I don't remember the exact date. He
asked us numerous times.
Q. Do you know when that was approved and set
up and planned?
A. We don't do it that way. We get a request
from one of the officers in a township, and we
just go out there whenever we're available.
. . . .
Q. What time was your _ and I guess when
y'all made the plan to go out and do a
driver's license check point, what time were
y'all suppose [sic] to arrive that night?
A. Actually, we were all together at the time
when we decided to go out there.
Q. What time were y'all planning to go out
there?
A.
There was no plan prior to that. We just
decided to throw one up while we were out that
way.
Q. What do you mean "just decided to throw
one up"?
A.
These check points are spontaneous. They
are not planned, they are not put in the
newspaper or anything like that. We just
spontaneously throw them up.
. . . .
Q. How often do y'all set up check points
like this at different spots?
A. On a regular basis.
Whenever we're
inbetween [sic]
cases or whatever, when we're
out patrolling certain areas. We do them all
over the county, and like I said, there's no
plan to it. They're just spontaneous.
(Emphasis added.) No one explained why there was a particular need
for a checkpoint in this particular area of the county. It seems
unlikely that one part of Onslow County was having a larger problem
with unlicensed or unregistered drivers than another part, although
on remand the trial court should inquire into the particular need
for a checkpoint in this area. On the other hand, different
neighborhoods might well have different difficulties with drug
trafficking. We also know that at this particular checkpoint one officer
would approach the driver to ask for the license and registration,
while a second officer would scan the inside of the vehicle and
walk around it. The testimony does not explain why a second
officer was necessary to check licenses and registrations. In this
case, it appears that the function of the second officer may have
been to scan for possible criminal activity.
Other courts have concluded that such evidence supported a
finding that the checkpoint had an impermissible purpose of general
law enforcement. In
Baker v. State, 252 Ga. App. 695, 698-99, 556
S.E.2d 892, 897 (2001),
cert. denied, 2002 Ga. LEXIS 423 (Ga. May
13, 2002), the State relied only on the testimony of one of the
officers conducting the roadblock, who asserted that his purpose
was to perform DUI checks. In holding that the State had failed to
meet its burden of proving the constitutionality of the roadblock,
the Georgia Court of Appeals reasoned:
[T]he decision of the United States Supreme
Court in
Edmond has elevated proof of the
supervisor's "primary purpose" to a
constitutional prerequisite of a lawful
checkpoint. We do not know from the
transcript whether "DUI checks" were the
purpose of the supervisor who decided to
implement the roadblock or were the purpose of
the officers in the field. The burden was on
the state to prove that the seizure, i.e., the
stopping of [defendant's] vehicle, was
constitutionally valid. Under the guidance of
Edmond, the required proof included evidence
of the supervisor's primary purpose in
implementing the roadblock. We will not
presume from a silent record that
constitutional requirements have been
satisfied.
. . . .
[W]hat we hold is that the state must present
some admissible evidence, testimonial or
written, of the supervisor's purpose, i.e.,
purpose at the "programmatic level," in the
words of
Edmond.
Id. at 699 and 701, 556 S.E.2d at 897-98 and 899.
See also
Jackson, 99 N.Y.2d at 132, 782 N.E.2d at 71, 752 N.Y.S.2d at 275
(affirming the suppression of evidence seized at a roadblock after
noting that the State offered as evidence only the testimony of the
officers who set up and manned the roadblock and that "[n]ever did
the officers unequivocally point to a primary programmatic
objective that would qualify under
City of Indianapolis").
We, therefore, remand for the trial court to make findings of
fact regarding the primary programmatic purpose of the checkpoint
at issue, as required by
Edmond. If the primary programmatic
purpose of the checkpoint is not within one of the narrow
exceptions to the prohibition against suspicionless seizures, but
rather is for general crime control purposes, such as narcotics
detection, then the "
Edmond-type presumptive rule of
unconstitutionality" applies.
Lidster, 540 U.S. at 426, 157 L. Ed.
2d at 852, 124 S. Ct. at 890. If, however, the trial court finds
that the primary programmatic purpose was constitutionally
permissible, then the court must proceed to analyze the
reasonableness of the checkpoint.
B.
The Reasonableness of the Checkpoint
Even if the trial court on remand finds that the primary
programmatic purpose was checking licenses and registration, its
inquiry does not end with that finding. In its most recent opinionaddressing checkpoints, the United States Supreme Court held that
even if a checkpoint is for one of the permissible purposes,
"[t]hat 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."
Id. See United States v. Huguenin,
154 F.3d 547 (6th Cir. 1998) (holding that a DUI checkpoint, which
is a permissible purpose for a checkpoint under
Sitz, was
unreasonable in how it was conducted and, therefore,
unconstitutional).
To determine whether a seizure at a checkpoint is reasonable
requires a balancing of the public's interest and an individual's
privacy interest.
Brown v. Texas, 443 U.S. 47, 50, 61 L. Ed. 2d
357, 361, 99 S. Ct. 2637, 2640 (1979) ("The reasonableness of
seizures that are less intrusive than a traditional arrest depends
on a balance between the public interest and the individual's right
to personal security free from arbitrary interference by law
officers." (internal citations and quotation marks omitted)). The
Court in
Lidster reaffirmed the
Brown three-part test for
determining reasonableness: "[I]n judging reasonableness, we look
to '[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.'"
Lidster, 540 U.S. at 427, 157 L. Ed. 2d at 852, 124 S. Ct. at 890
(quoting
Brown, 443 U.S. at 51, 61 L. Ed. 2d at 362, 99 S. Ct. at
2640). The first
Brown factor _ the gravity of the public concerns
served by the seizure _ analyzes the importance of the purpose of
the checkpoint.
Id., 157 L. Ed. 2d at 852, 124 S. Ct. at 891.
This factor is addressed by first identifying the primary
programmatic purpose as required by
Edmond and then assessing the
importance of the particular stop to the public. In
Lidster, the
Supreme Court found "[t]he relevant public concern was grave."
Id.
The Court explained: "Police were investigating a crime that had
resulted in a human death. No one denies the police's need to
obtain more information at that time. And the stop's objective was
to help find the perpetrator of a specific and known crime, not of
unknown crimes of a general sort."
Id.
In considering the second factor _ the degree to which the
seizure advances the public interest _ the Court in
Lidster
stressed that "[t]he police
appropriately tailored their checkpoint
stops to fit important criminal investigatory needs."
Id.
(emphasis added). The Court pointed to the police's selection of
a time and location most likely to elicit information about the
accident being investigated.
Id. ("The stops took place about one
week after the hit-and-run accident, on the same highway near the
location of the accident, and at about the same time of night.").
In this case, even though the Supreme Court has previously
suggested that license and registration checkpoints advance an
important purpose, the trial court was required, and failed, to
make findings whether the checkpoint was appropriately tailored to
meet that purpose. The evidence currently in the record raises aserious question whether there was any tailoring at all. As
mentioned above and as repeatedly stressed by one of the officers,
these checkpoints were "spontaneous," without any prior agreement
as to a starting time or finishing time. The officers apparently
conducted a checkpoint whenever they felt like it. In addition,
while the officers testified that the Narcotics Division officers
and Deputy Ides jointly decided to set up the checkpoint on Queen's
Haven Road, no evidence was presented to show why that road was
picked or why they chose that particular stretch of road. This
evidence, or lack thereof, raises serious questions whether the
checkpoint was sufficiently tailored. Without tailoring, "it is
possible that a roadblock purportedly established to check licenses
would be located and conducted in such a way as to facilitate the
detection of crimes unrelated to licensing. That risk can be
minimized by a requirement that the location of such a roadblock be
determined by a supervisory official, considering where license and
registration checks would likely be effective." 5 LaFave,
supra §
10.8(a), at 347-48.
With respect to the third factor _ the severity of the
interference with individual liberty _ the Supreme Court has
focused on how the officers conducted the checkpoint, including the
amount of discretion afforded the field officers. Specifically, as
Chief Justice Burger wrote in
Brown _ a decision reaffirmed and
applied by the Supreme Court in 2004 in
Lidster _ a checkpoint
"must be carried out pursuant to a plan embodying explicit, neutral
limitations on the conduct of individual officers."
Brown, 443U.S. at 51, 61 L. Ed. 2d at 362, 99 S. Ct. at 2640.
(See footnote 2)
There must be
orderly procedures to limit the "unfettered discretion of officers
in the field" in order to avoid the "arbitrary invasion" of
motorists' privacy interests.
Id. The Supreme Court has stressed
that "standardless and unconstrained discretion is the evil the
Court has discerned when in previous cases it has insisted that the
discretion of the official in the field be circumscribed, at least
to some extent."
Prouse, 440 U.S. at 661, 59 L. Ed. 2d at 672, 99
S. Ct. at 1400.
In this case, the only factor found by the trial court
relating to a neutral limitation on the field officers is the fact
that the officers stopped all oncoming traffic at the checkpoint,
a circumstance that by itself is not enough to uphold a checkpoint.
Whether the police stop every automobile is merely one factor in
evaluating the reasonableness of a checkpoint: while stopping
every car does eliminate discretion as to who the officers stop, it
does not eliminate the discretion as to the officers' conductduring the stop. The issue is not just who is stopped, but what
the field officers choose to do after the stop.
See George C.
Thomas III,
Terrorism, Race and a New Approach to Consent Searches,
73 Miss. L.J. 525, 542 (2003) ("At a roadblock, or following a
traffic stop, police can use race and only race to decide which
cars merit further attention or which drivers to ask for consent to
search their cars.").
The record contains evidence that suggests a lack of any
limitation on the officers' discretion in the field apart from the
requirement that they stop every car. In addition to the testimony
quoted above _ describing a lack of any prior plan for the
"spontaneous" checkpoint _ the officers also testified as follows:
Q. Does [sic] any of your supervisors come
together for a meeting and say these are the
people assigned to check driver's license
check points on Queen's Haven Road, and give
that assignment out?
A. No.
Q. Have they ever advised you of a plan of
how far down the road it's going to be set up
so everybody can see it?
A. No. We don't have those types of
meetings. The only time we do anything like
that is if we're assisting the State or
something like that _ one of the highway
patrol check points.
. . . .
Q. You were in charge of this check point?
A. No.
Q. Who was in charge of the check point?
A. No one was really in charge. We're all
detectives conducting the check point. No one
individual officer was placed in charge.
There was also no evidence offered of any oral or written
guidelines governing any aspect of Onslow County Narcotics Division
checkpoints.
Additionally, the testimony of the officers described how this
checkpoint was conducted without any form of supervision:
Q. Okay. When you mean by "spontaneously put
them up", do your supervisors or any of the
department heads, do they know there's a check
point going on out there?
A. Not necessarily, no.
Q. Did they know on this evening?
A. No.
Q. They did not know there was a check point
going on this evening?
A. Not _ no, to my knowledge, anyway.
Neither of the other two witnesses testified to the contrary.
There is testimony in the transcript that "the area first sergeant
or the area deputy responsible for that area" would request
checkpoints, but one would hardly expect a patrol sergeant or
patrol deputy responsible for a particular geographic area to be
supervisory to Narcotics Division detectives, including Detective
Sergeants. Regardless, this is a factual question that should not
be resolved by this Court _ and provides a very slim reed foraffirming the trial court below, especially when it never
considered the question.
(See footnote 3)
In short, the evidence as it currently stands would permit the
trial court to find that there was no plan, no time frame, no
supervision, and no direction from anyone (oral or written) about
how to conduct these wholly spontaneous checkpoints. Indeed, there
was not even anyone in charge. If the trial court on remand finds
this is in fact the case with the Onslow County checkpoint, it is
difficult to imagine more unfettered discretion.
See Huguenin, 154
F.3d at 562-63 (DUI checkpoint held unreasonable under
Brown
because the lack of orderly procedures meant field officers would
be free to decide which motorists would be detained for further
questioning with "the potential for randomly targeting individual
motorists . . . great");
State v. DeBooy, 2000 UT 32, . 23, 996
P.2d 546, 551-52 (2000) ("According to testimony of the officers at
the suppression hearing, there were no guidelines as to how their
inquiry was to be conducted; it was left entirely to the discretion
of the officers in the field. . . . Such unbridled discretion for
the officers is inherently unreasonable under the Fourth Amendment
. . . .").
The State, however, argues that
State v. Mitchell, 358 N.C.
63, 592 S.E.2d 543 (2004) supports the trial court's order. The
question before the Court in
Mitchell was whether "the Fourth
Amendment prohibits officers from conducting checkpoints withoutwritten guidelines."
Id. at 67, 592 S.E.2d at 545. The Court, in
answering this question, held that "checkpoints conducted without
written guidelines are [not] per se unconstitutional."
Id. at 67,
592 S.E.2d at 546.
The Court in
Mitchell upheld the checkpoint because
"constitutionally sufficient restraints" on the officers'
discretion were in place.
Id. at 68, 592 S.E.2d at 546. After
observing that "[h]ere adequate internal guidelines were testified
to and implemented,"
Id. at 67, 592 S.E.2d at 546, the Court held
that:
[Officer] 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.
Id. Thus, when looking at the totality of the checkpoint's
circumstances, the Court found sufficient restraints on the field
officer's discretion to uphold the checkpoint.
Id.
While our Supreme Court suggested in
Mitchell that a lack of
supervisory permission might not "merit a constitutionally mandated
reversal in a roadblock case such as the one
sub judice,"
id., the
case currently before this Court is not necessarily a case "such as
the one" before the Supreme Court in
Mitchell. Nothing in
Mitchellindicates that our Supreme Court intended
to authorize spontaneous,
roving, unplanned, unsupervised, and unbounded checkpoints. We
believe that
Mitchell stands for the proposition that supervisory
permission _ like written guidelines, stopping every vehicle, and
other factors _ is not a "lynchpin," but instead is a circumstance
to be considered as part of the totality of the circumstances in
examining the reasonableness of a checkpoint. As the Court
mandated in
Lidster, a trial court must examine the checkpoint as
a whole and "judge its reasonableness, hence, its
constitutionality, on the basis of the individual circumstances"
present with that checkpoint.
Lidster, 540 U.S. at 426, 157 L. Ed.
2d at 852, 124 S. Ct. at 890.
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 purpose of the checkpoint and the fact that the
officers stopped every car. In doing so, the court addressed the
first prong of the
Lidster 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
Lidster factors and a weighing of those factors to determine
whether the checkpoint was reasonable.
(See footnote 4)
Reverse and remand.
Judge TYSON concurs.
Judge TIMMONS-GOODSON concurs in the result only in a separate
opinion.
TIMMONS-GOODSON, Judge, concurring in the result.
“The scope of review on appeal of the denial of a defendant's
motion to suppress is strictly limited to determining whether the
trial court's findings of fact are supported by competent evidence,
in which case they are binding on appeal, and in turn, whether
those findings support the trial court's conclusions of law.”
State v. Corpening, 109 N.C. App. 586, 587-88, 427 S.E.2d 892, 893
(1993). In the instant case, because I believe the trial court's
findings of fact are insufficient to support its ultimate
conclusions of law, I agree with the holding reached by the
majority.
Footnote: 1
