State v. Kostick

NO. COA13-873

NORTH CAROLINA COURT OF APPEALS

Filed: 18 March 2014

STATE OF NORTH CAROLINA

v. Swain County
No. 10 CRS 277
STEVEN CLARK KOSTICK,
Defendant.

Appeal by defendant from judgment entered 22 February 2013

by Judge James U. Downs in Swain County Superior Court. Heard

in the Court of Appeals 11 December 2013.

Attorney General Roy Cooper, by Special Deputy Attorney
General Neil Dalton and Assistant Attorney General Kathryne
E. Hathcock, for the State.

McLean Law Firm, P.A., by Russell L. McLean, III, for
defendant-appellant.

BRYANT, Judge.

Pursuant to the Tribal Code of the Eastern Band of the

Cherokee Indians and mutual compact agreements between the Tribe

and other law enforcement agencies, the North Carolina Highway

Patrol has authority to patrol and enforce the motor vehicle

laws of North Carolina within the Qualla boundary of the Tribe,

including authority to arrest non-Indians who commit criminal
 -2-
offenses on the Cherokee reservation. Our State courts have

jurisdiction over the criminal offense of driving while impaired

committed by a non-Indian, even where the offense and subsequent

arrest occur within the Qualla boundary of the Cherokee

reservation. A defendant’s Knoll motion is properly dismissed

where the magistrate follows N.C. Gen. Stat. § 15A-511(b) and

any deviation from the statutory requirements is not prejudicial

to defendant.

On 24 April 2010, the Cherokee Harley Davidson Rally (the

“rally”) was held at the fairgrounds in Cherokee, North

Carolina. As part of a cooperative agreement between the Eastern

Band of the Cherokee Indians (the “Tribe”) and Swain County

police departments and the North Carolina State Highway Patrol

(“State Highway Patrol”), Swain County and State Highway Patrol

officers assisted the Cherokee police officers in patrolling the

rally, setting up and administering checkpoints, and providing

assistance as needed. Checkpoints were established at the roads

leading into and out of the fairgrounds, Drama Road/State

Highway 1361 and State Highway 441, and were run by a

combination of Cherokee and Swain County police officers. The

checkpoints were intended to check all vehicles leaving the
 -3-
rally for potential driving while impaired (“DWI”), driver’s

license, insurance, and unsafe driving violations.

That evening at around 10:00 p.m., defendant Steven Clark

Kostick (“defendant”) left the rally’s parking lot and

encountered a checkpoint on Drama Road. After rolling two car

lengths past Cherokee Officer Dustin Wright who signaled for

defendant to stop, defendant stopped his vehicle. As Officer

Wright approached the vehicle, he immediately noticed an odor of

alcohol and saw two open cans of beer in the car’s center

console cup holders. Officer Wright also noticed that a woman

sitting in the front passenger seat of the vehicle was crying.

Officer Wright directed defendant to return his vehicle to the

parking lot and called for an available officer to come and

conduct an investigation of defendant.

The responding officer was State Highway Patrol Trooper Jim

Hipp who took over the investigation of defendant at the request

of Officer Wright. After noticing that defendant smelled of

alcohol, had red, glassy eyes, slurred speech, and an unsteady

gait, Trooper Hipp conducted four field sobriety tests and

concluded that defendant was likely intoxicated. Defendant told

Trooper Hipp that he had consumed four to five beers that

evening, and then admitted to having a handgun in his truck.
 -4-
The woman in defendant’s car was driven by another officer back

to the vacation cabin where she was staying with defendant.

Trooper Hipp arrested defendant on suspicion of DWI.

Defendant was taken to the Swain County jail where he blew a

0.15 on a Breathalyzer test. Defendant was arraigned by a

magistrate after being charged with DWI and was ordered to be

held on a $500.00 secured bond. Defendant was released from the

Swain County jail around 4 a.m. on 25 April 2010 after posting

bail.

On 24 November 2011, defendant filed handwritten motions to

suppress (entitled “Motion to Suppress Stop and Arrest;” “Motion

to Suppress”). On 2 December 2011, defendant filed a motion to

dismiss alleging lack of jurisdiction over defendant’s arrest.

The trial court denied all of defendant’s motions, and on 6

April 2011, defendant was convicted of DWI in District Court.

Defendant appealed his conviction to the Superior Court.

On 8 December 2011, defendant filed a new motion to dismiss

alleging that the State Highway Patrol had no arrest authority

within the Cherokee reservation and that defendant was on

Cherokee, rather than State, property at the time of his arrest.

Defendant further moved to suppress the evidence regarding the

checkpoint stop and made a Knoll motion alleging that the
 -5-
magistrate did not properly inform defendant of his right to

contact counsel and friends upon his arrest. At a pretrial

hearing on 20—21 February 2013, defendant’s motions were denied.

On 22 February 2013, a jury convicted defendant of DWI.

Defendant appeals.

_______________________________

On appeal, defendant challenges (I) the subject matter

jurisdiction of the trial court, including whether the road on

which defendant was stopped was a North Carolina state road,

whether the North Carolina Highway Patrol had arrest authority,

and whether the trial court erred in denying defendant’s pre-

trial motion to dismiss the DWI charges; (II) whether the

roadblock set-up by the Cherokee Police Department was

constitutional; and (III) the trial court’s failure to grant

defendant’s Knoll motion to dismiss the DWI citation.

Motion to Dismiss

On 2 October 2013, the State filed a motion to dismiss

defendant’s appeal, arguing that defendant failed to properly

preserve his appeal. Specifically, the State contends that the

record on appeal is insufficient because defendant failed to

include a complete trial transcript to show that defendant

properly renewed his pretrial objections at trial as to subject
 -6-
matter jurisdiction, suppression of evidence from the checkpoint

and a Knoll violation, and that without proof that defendant did

renew his objections at trial, those objections cannot be deemed

to be preserved on appeal. Defendant, on the other hand,

counters that he “has preserved each and every issue on appeal.”

Pursuant to our Rules of Appellate Procedure, “[t]he record

on appeal in criminal actions shall contain . . . so much of the

litigation, set out in the form provided in Rule 9(c)(l), as is

necessary for an understanding of all issues presented on appeal

. . . .” N.C. R. App. P. 9(a)(3)(e) (2013).

In order to preserve an issue for appellate
review, a party must have presented to the
trial court a timely request, objection, or
motion, stating the specific grounds for the
ruling the party desired the court to make
if the specific grounds were not apparent
from the context. It is also necessary for
the complaining party to obtain a ruling
upon the party’s request, objection, or
motion. Any such issue that was properly
preserved for review by action of counsel
taken during the course of proceedings in
the trial tribunal by objection noted or
which by rule or law was deemed preserved or
taken without any such action, including,
but not limited to, whether the judgment is
supported by the verdict or by the findings
of fact and conclusions of law, whether the
court had jurisdiction over the subject
matter, and whether a criminal charge is
sufficient in law, may be made the basis of
an issue presented on appeal.
 -7-
N.C. R. App. P. 10(a)(1) (2013). Where a defendant does not

preserve an issue for appeal, that issue may only then be

appealed by claiming plain error pursuant to N.C. R. App. P.

10(a)(4). State v. Waring, 364 N.C. 443, 467—68, 701 S.E.2d

615, 631—32 (2010).

The State contends that defendant’s appeal should be

dismissed in its entirety because by not providing a complete

trial transcript the record on appeal is insufficient. At the

pretrial hearing, defendant raised three motions: a motion to

dismiss for lack of subject matter jurisdiction; a motion to

suppress evidence from the checkpoint; and a Knoll motion.

A. Defendant’s motion to dismiss for lack of subject matter

jurisdiction

Defendant provided a trial transcript for the pretrial

hearing of 20—21 February 2013 but did not provide the

transcript for his jury trial on 22 February 2013. However, a

determination of subject matter jurisdiction does not require

the presence of a complete trial transcript, as “[j]urisdiction

has been defined as ‘the power to hear and to determine a legal

controversy; to inquire into the facts, apply the law, and to

render and enforce a judgment[.]’" High v. Pearce, 220 N.C.

266, 271, 17 S.E.2d 108, 112 (1941) (citation omitted). As
 -8-
such, defendant’s failure to include a trial transcript for his

jury trial on 22 February 2013 does not negate his appeal

regarding his motion to dismiss for lack of subject matter

jurisdiction. See N.C. R. App. P. 10(a)(1). The State’s motion

to dismiss defendant’s appeal as it relates to the issue of

subject matter jurisdiction must, therefore, be denied.

B. Defendant’s motion to suppress evidence from the checkpoint

[A] motion in limine is insufficient to
preserve for appeal the question of the
admissibility of evidence if the defendant
fails to further object to that evidence at
the time it is offered at trial. Rulings on
motions in limine are preliminary in nature
and subject to change at trial, depending on
the evidence offered, and thus an objection
to an order granting or denying the motion
is insufficient to preserve for appeal the
question of the admissibility of the
evidence.

State v. Reaves, 196 N.C. App. 683, 686, 676 S.E.2d 74, 77

(2009) (citation omitted).

Defendant made a pretrial motion to suppress evidence

regarding the checkpoint and DWI arrest. However, defendant

omitted the transcript of his jury trial; therefore, we have no

objective means of ascertaining whether defendant renewed his

motion to suppress at trial. "[A] pretrial motion to suppress,

a type of motion in limine, is not sufficient to preserve for

appeal the issue of admissibility of evidence . . . .
 -9-
[Therefore, a] defendant waive[s] appellate review of this issue

by failing to object during trial to the admission" of the

challenged evidence. State v. Grooms, 353 N.C. 50, 66, 540

S.E.2d 713, 723 (2000) (citation omitted). Defendant, however,

points to the record of the pretrial hearing; there the trial

court denied his motion to suppress and noted defendant’s

“exception” to the trial court’s ruling. Further, defendant

points to an agreement between the State and defendant that the

pretrial hearing transcript would be sufficient for purposes of

defendant’s appeal. This agreement is part of the record on

appeal.1 Therefore, even if defendant’s issue is not properly

preserved, to prevent manifest injustice to defendant we

1
The Settlement of Transcript, which is signed by counsel for
both the State and defendant and dated 14 March 2013, states
that:

NOW COMES the undersigned attorneys on
behalf of the Plaintiff, State of North
Carolina and the Defendant, Steven Kostick
as evidenced by their signatures hereto, and
agree that the court reporter who
transcribed the proceedings is only required
to transcribe all motions to suppress for
lack of subject matter jurisdiction and that
the trial transcript need not be transcribed
since the Defendant is only appealing the
court’s subject matter jurisdiction over the
Defendant to the North Carolina Court of
Appeals.
 -10-
exercise our authority pursuant to Rule 2 and hear defendant’s

appeal of this issue.

C. Defendant’s Knoll motion

A Knoll motion, based on State v. Knoll, 322 N.C. 535, 369

S.E.2d 558 (1988), alleges that a magistrate has failed to

inform a defendant of the charges against him, his right to

communicate with counsel, family, and friends, and the general

conditions he must meet for pretrial release pursuant to N.C.

Gen. Stat. § 15A-511 (2013). "If there is a conflict between

the state's evidence and defendant's evidence on material facts,

it is the duty of the trial court to resolve the conflict and

such resolution will not be disturbed on appeal." State v.

Lewis, 147 N.C. App. 274, 277, 555 S.E.2d 348, 351 (2001)

(citation omitted).

Here, the trial court heard arguments by both sides and

made its findings of fact and conclusions of law during the

pretrial hearing; therefore, a transcript of defendant’s jury

trial is not necessary for our review of his Knoll motion. See

id.; Knoll, 322 N.C. 535, 369 S.E.2d 558. Accordingly, the

State’s motion to dismiss defendant’s Knoll motion is denied.

_________________________________

I.
 -11-
Subject Matter Jurisdiction

A. North Carolina road

Defendant first argues that the trial court erred in

finding that the road on which defendant was stopped was a North

Carolina state road. Specifically, defendant contends that the

road on which he was stopped, Drama Road, is on federal land

because it is controlled by the Tribe, and thus, the State had

no authority to stop and arrest defendant while he was driving

on it. Defendant’s argument as to whether the road is

controlled by the State or the Tribe lacks merit, as our State

Highway Patrol enjoys an existing compact with the Tribe to

assist with patrolling and enforcing roads within this state.

“[T]he Constitution grants Congress broad general powers to

legislate in respect to Indian tribes, powers that we have

consistently described as ‘plenary and exclusive.’” United

States v. Lara, 541 U.S. 193, 200 (2004) (citations omitted).

Congress has defined Indian country as

(a) all land within the limits of any Indian
reservation under the jurisdiction of the
United States Government . . . including
rights-of-way running through the
reservation, (b) all dependent Indian
communities within the borders of the United
States whether within the original or
subsequently acquired territory thereof, and
whether within or without the limits of a
state, and (c) all Indian allotments, the
 -12-
Indian titles to which have not been
extinguished, including rights-of-way
running through the same.

18 U.S.C. § 1151 (2012). Indian tribes retain "attributes of

sovereignty over both their members and their territory."

United States v. Mazurie, 419 U.S. 544, 557 (1975). "[T]ribal

sovereignty is dependent on, and subordinate to, only the

Federal Government, not the States." Washington v. Confederated

Tribes of the Colville Indian Reservation, 447 U.S. 134, 154

(1980). “[S]tate laws may be applied to tribal Indians on their

reservations if Congress has expressly so provided.” Cal. v.

Cabazon Band of Mission Indians, 480 U.S. 202, 207 (1987).

Federal recognition of the [Cherokee]
Eastern Band as an Indian tribe has at least
two major implications for the issue of
state jurisdiction: (1) the federal
government continues to maintain plenary
power over the Eastern Band, a fact which
strictly limits extensions of state power,
and (2) the Eastern Band, like all
recognized Indian tribes, possesses the
status of a "domestic dependent nation" with
certain retained inherent sovereign powers.

Wildcatt v. Smith, 69 N.C. App. 1, 5—6, 316 S.E.2d 870, 874

(1984) (citations omitted). An Indian tribe may engage in a

tribe-state compact “to facilitate the exercise of each

government's respective authority.” FELIX S. COHEN, HANDBOOK OF

FEDERAL INDIAN LAW § 6.05, at 591 (Nell Jessup Newton ed., 2012).
 -13-
The reservation lands of the Tribe in our State are known as the

Qualla boundary. See Sasser v. Beck, 40 N.C. App. 668, 670, 253

S.E.2d 577, 579 (1979) (“The United States first recognized the

rights of the Indians who had remained in North Carolina by an

Act of 1848, establishing a fund for their benefit. The Qualla

Boundary lands were purchased partly with money from this fund.

In 1866 the North Carolina legislature passed a statute granting

the Cherokee permission to remain in the State, and in 1868

Congress provided that the Secretary of the Interior should

‘take the same supervisory charge of the Eastern or North

Carolina Cherokees as of other tribes of Indians.’ In 1889 the

eastern Cherokees were incorporated under the laws of North

Carolina, and in 1897 their charter was amended to give the

Cherokee limited power of government, with special reference to

control of tribal property. The title to the Qualla Boundary

lands, which had been held by the Commissioner of Indian

Affairs, was conveyed to the corporation but remained subject to

the supervision of the Commissioner. This title was conveyed to

the United States in trust in 1925.” (citation omitted)).

The Tribe’s Code of Ordinances, section 20-1 states that:

(a) In order to ensure consistency in the
application and enforcement of all civil and
criminal traffic and motor vehicle laws on
the Cherokee Indian Reservation and in
 -14-
surrounding areas, the Tribe adopts Chapter
20 of the North Carolina General Statutes
and any amendments to that chapter which may
be made in the future. In so doing, all
persons operating motor vehicles on the
Cherokee Indian Reservation must abide by
these provisions . . . . Any references in
Chapter 20 of the N.C.G.S. to violations
occurring within the State of North Carolina
shall also include violations occurring
within the Cherokee Indian Reservation.

. . .

(b) All civil traffic infractions contained
therein shall be enforced by the North
Carolina Highway Patrol, Federal Law
Enforcement Officers, and the Cherokee
Police Department . . . .

. . .

(e) All traffic and motor vehicle violations
shall be enforced in accordance with
existing compacts in an effort to ensure
cooperation between all law enforcement
agencies.

CHEROKEE INDIANS EASTERN BAND, N.C., CODE ch. 20, art. 1, § 20-1 (2013)

(emphasis added). Moreover, pursuant to section 15-2 of the

Tribe’s Code,

(a) The North Carolina Highway Patrol is
hereby authorized to patrol the roads and
highways on the Cherokee Indian Reservation
and to enforce the North Carolina traffic
laws as adopted by the Eastern Band of
Cherokee Indians.

(b) The North Carolina Highway Patrol is
hereby authorized to enforce the North
Carolina criminal laws against all persons
 -15-
who are not subject to the criminal laws of
the Tribe or the criminal jurisdiction of
the Cherokee Court.

Id. § 15-2.

Defendant contends that the road on which he was stopped,

Drama Road, was not a road upon which the State Highway Patrol

had jurisdiction to operate.

At his pretrial hearing, evidence was presented showing

that Drama Road is held and maintained by the State within the

Tribe’s reservation, the Qualla boundary. However, pursuant to

the Tribe’s Code, section 20-1, the language of which is

identical to that of Chapter 20 of our General Statutes, the

State Highway Patrol has authority to “patrol the roads and

highways on the . . . reservation.” Id. Moreover, section 20-

1(e) of the Tribal Code notes that “[a]ll traffic and motor

vehicle violations shall be enforced in accordance with existing

compacts in an effort to ensure cooperation between all law

enforcement agencies.” Id. Furthermore, testimony by Cherokee

Officer Teesateskie and State Highway Patrol Trooper Hipp

indicated that the Cherokee Police Department had a compact with

the Swain County Police Department and the State Highway Patrol

to provide assistance during the rally, and that this agreement

had existed for several years.
 -16-
Defendant was initially stopped by Cherokee Officer Wright

on suspicion of Driving While Impaired before Trooper Hipp was

called in to assist. As Trooper Hipp was authorized both under

Tribal Code § 20-1 and the mutual assistance compact between the

Tribe, the Swain County Police Department and the State Highway

Patrol, the State Highway Patrol, through Trooper Hipp, had the

right to assist the Tribe in stopping, investigating, and

arresting defendant on Drama Road. Defendant’s argument as to

whether the State or the Tribe controls Drama Road is overruled,

as is defendant’s argument concerning Trooper Hipp’s arrest

authority.

B. DWI Offense

Defendant also contends the trial court lacked subject

matter jurisdiction to prosecute defendant, a non-Indian, for a

DWI offense incurred while defendant was on Indian land. We

disagree.

A claim that the trial court lacks subject matter

jurisdiction presents a question of law which is reviewed de

novo. State v. Satanek, 190 N.C. App. 653, 656, 600 S.E.2d 623,

625 (2008). “[T]he issue of a court's jurisdiction over a

matter may be raised at any time, even for the first time on
 -17-
appeal or by a court sua sponte.” State v. Webber, 190 N.C.

App. 649, 650, 660 S.E.2d 621, 622 (2008) (citation omitted).

As discussed in Issue I, the Tribe has incorporated Chapter

20 of our General Statutes with regard to the regulation of

motor vehicles into its Code. This incorporation and compact

with neighboring police departments gave Trooper Hipp arrest

authority over defendant. In determining whether the State then

had subject matter jurisdiction over defendant’s DWI offense, we

must look to general principles of Indian sovereignity.

[T]he Indian Civil Rights Act . . .
permit[s] states to assume jurisdiction over
civil cases involving Indians and arising in
Indian country by consent of the tribe
affected. The Eastern Band has never given
formal consent to the assumption of state
jurisdiction pursuant to the Indian Civil
Rights Act.

Wildcatt, 69 N.C. App. at 7, 316 S.E.2d at 875 (citing Sasser v.

Beck, 40 N.C. App. 668, 253 S.E.2d 577 (1979)). Pursuant to 18

U.S.C. § 1153, an Indian tribe has jurisdiction over crimes

committed by both its own Indian members and by Indian members

of other tribes. 18 U.S.C. § 1153 (2012); Oliphant v. Suquamish

Indian Tribe, 435 U.S. 191 (1978) (holding that by submitting to

the overriding sovereignty of the United States, Indian tribes

hold inherent power to try and punish Indians except where

otherwise prohibited by Congress). However, “the commonly
 -18-
shared presumption of Congress . . . [is] that tribal courts do

not have the power to try non-Indians [for crimes committed on

Indian land].” Oliphant, 435 U.S. at 207.

Here, defendant concedes in his brief that he is not a

member of an Indian tribe. Trooper Hipp testified that at the

time he placed defendant under arrest, he assumed that defendant

was non-Indian. Moreover, in its findings of fact regarding

defendant’s pretrial motion to suppress the trial court noted

that “[t]he Court can only assume and take notice that

[defendant] is a non-Indian . . . .” As such, whether the trial

court would have subject matter jurisdiction over defendant’s

DWI offense would depend on whether a DWI offense, as defined by

section 20 of our General Statutes and the Tribal Code, is a

criminal or civil offense.

After defendant blew a 0.15 on his breath test, defendant

was charged with DWI. A DWI, as defined by N.C. Gen. Stat. §

20-138.1, is a misdemeanor offense; a misdemeanor offense is a

type of criminal offense. See N.C.G.S. § 20-138.1(a)(1) (2013)

(“A person commits the offense of impaired driving if he drives

any vehicle upon any highway, any street, or any public

vehicular area within this State [] [w]hile under the influence

of an impairing substance[.]”).
 -19-
Pursuant to Tribal Code § 20-1, “[c]riminal penalties may

only be imposed against persons who are subject to the Cherokee

court’s criminal jurisdiction . . . .” CHEROKEE INDIANS EASTERN BAND,

N.C., CODE ch. 20, art. 1, § 20-1. Additionally, the Code

requires that a Cherokee magistrate follow specific procedures,

known as the “St. Cloud test,” to ensure that the Tribal court

would have jurisdiction over a defendant. After specific

inquiries, “[i]f the Magistrate determines that the defendant is

a non-Indian, then the Magistrate shall notify the CIPD

(Cherokee Indian Police Department) of same, dismiss the Tribe’s

charges and turn the defendant over to the CIPD for transport to

the appropriate State or local judicial or law enforcement

officer or to the Federal authorities.” Id. § 15, App. A,

Cherokee R. Crim. P. 6(b)(1) (2013). Therefore, tribal courts

lack jurisdiction over non-Indians. See Oliphant, 435 U.S. at

210 (“The power of the United States to try and criminally

punish is an important manifestation of the power to restrict

personal liberty. By submitting to the overriding sovereignty

of the United States, Indian tribes therefore necessarily give

up their power to try non-Indian citizens of the United States

except in a manner acceptable to Congress.” (citation omitted)).

As such, the State Highway Patrol had authority over defendant.
 -20-
Therefore, where the Tribal Code of Ordinances adopted N.C.G.S.

Chapter 20 and where the Code further authorizes the State

Highway Patrol to enforce North Carolina traffic laws as adopted

by the Eastern Band of the Cherokee Indians, the trial court did

not err in exercising subject matter jurisdiction over

defendant. Defendant’s argument is overruled.

II.

Defendant next challenges whether the roadblock set-up by

the Cherokee Police Department was constitutional.

Defendant first argues that the trial court erred in

finding the roadblock constitutional because the State Highway

Patrol lacked authority to enforce traffic laws within the

Qualla boundary. As we have already determined in Issue I that

the State Highway Patrol had authority to enforce traffic laws

within the Qualla boundary, we need not address this portion of

defendant’s argument.

Defendant further argues that even if the State Highway

Patrol had authority to enforce traffic laws within the Qualla

boundary, the trial court erred in finding the roadblock

constitutional because the roadblock was improperly conducted.

We disagree.

When considering a challenge to a
checkpoint, the reviewing court must
 -21-
undertake a two-part inquiry to determine
whether the checkpoint meets constitutional
requirements. First, the court must
determine the primary programmatic purpose
of the checkpoint. . . .

Second, if a court finds that police
had a legitimate primary programmatic
purpose for conducting a checkpoint . . .
[the court] must judge its reasonableness,
hence, its constitutionality, on the basis
of the individual circumstances.

State v. Veazey, 191 N.C. App. 181, 185—86, 662 S.E.2d 683, 686—

87 (2008) (internal quotations and citations omitted).

The State, in arguing that the roadblock was

constitutional, presented testimony from Cherokee Officers

Wright and Teesateskie and State Highway Patrol Trooper Hipp

that the roadblock was one of two established near the rally.

Each roadblock was set-up to check all vehicles leaving the

rally for potential DWI, driver’s license, insurance, and unsafe

driving violations. In its findings of fact the trial court

determined the roadblock to have a “legitimate primary

programmatic purpose,” stating that

the design of the procedure of a checkpoint
was that each vehicle be stopped. The
primary purpose was to see if the license
was current, the registration of the
vehicle, and any other violation of the law
that was then eminently detectable by the
officer. Each and every vehicle coming out
was checked. There was no selectivity in the
process . . . .
 -22-

As defendant presented no evidence in the record to contradict

the State's proffered purpose for the roadblock, the trial court

could rely on the testifying police officers’ assertions of a

legitimate primary purpose. Id. at 187, 662 S.E.2d at 687—88.

The trial court must, after finding a legitimate

programmatic purpose, determine whether the roadblock was

reasonable and, thus, constitutional. "To determine whether a

seizure at a checkpoint is reasonable requires a balancing of

the public's interest and an individual's privacy interest."

State v. Rose, 170 N.C. App. 284, 293, 612 S.E.2d 336, 342

(2005) (citation omitted). "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, 443 U.S. 47, 50, 61 L. Ed. 2d 357, 361, 99 S. Ct.

2637, 2640 (1979)." State v. Jarrett, 203 N.C. App. 675, 679,

692 S.E.2d 420, 424—25 (2010) (citation omitted). "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." Id. at 679, 692

S.E.2d at 425 (citation and quotations omitted).

The first Brown factor — the gravity of
 -23-
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 (citation

omitted). The trial court, in its findings of fact, noted that

the rally “added thousands [sic] people to an already burdening

population at that particular time of the year . . . to the

Cherokee vicinity,” and that “the officers concerned about

checking traffic with regard to the users and participants for

that rally would [sic] probably certainly [sic] justified and

that the Court could almost take notice of the fact that at a

Harley Davidson Rally, they're not singing hymns.”

When Officer Wright stopped defendant, he did so for the

purpose of checking defendant for potential driving violations.

After Officer Wright noticed that defendant appeared to be

intoxicated and saw two open cans of beer in the truck’s center

console, he directed defendant to return to the parking lot and

requested an available officer to come and assist in a potential

DWI investigation. This Court has held that such measures are

appropriate under the first prong of Brown. See State v. Nolan,

211 N.C. App. 109, 712 S.E.2d 279 (2011) (discussing how the
 -24-
first prong of Brown is met where an officer stopped the

defendant at a roadblock, detected an odor of alcohol and

noticed two missing bottles from a six-pack of beer in the

vehicle, and began a DWI investigation); Veazey, 191 N.C. App.

at 191, 662 S.E.2d at 690 (“Both the United States Supreme Court

as well as our Courts have suggested that ‘license and

registration checkpoints advance an important purpose[.]’ The

United States Supreme Court has also noted that states have a

‘vital interest’ in ensuring compliance with other types of

motor vehicle laws that promote public safety on the roads.”

(citations omitted)).

Under the second Brown prong — “the degree to which the

seizure advance[d] the public interest” — the trial court must

determine whether “[t]he police appropriately tailored their

checkpoint stops to fit their primary purpose." Veazey, 191

N.C. App. at 191, 662 S.E.2d at 690 (internal quotation and

citation omitted).

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
 -25-
ending time; and whether police offered any
reason why that particular time span was
selected.

Id.

Here, the trial court made findings of fact indicating that

there was a written plan and guidelines set by the Cherokee

police department for conducting roadblocks at the rally; a

briefing on this plan and guidelines was held for all officers

and troopers assisting at the rally; two roadblocks were set up

at previously designated points to address traffic leaving the

rally; the roadblocks had specific start and end times to

coincide with the conclusion of the rally; and both police

cruisers and fire trucks were placed at the roadblocks with

their lights flashing to indicate to drivers that roadblocks

were being conducted. Such findings “do 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." Jarrett, 203 N.C. App. at

680—81, 692 S.E.2d at 425.

“The final Brown factor to be considered is the severity of

the interference with individual liberty.” Id. at 681, 692

S.E.2d at 425. "[C]ourts have consistently required

restrictions on the discretion of the officers conducting the
 -26-
checkpoint to ensure that the intrusion on individual liberty is

no greater than is necessary to achieve the checkpoint's

objectives." Veazey, 191 N.C. App. at 192—93, 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 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[.]

Id. at 193, 662 S.E.2d at 691 (citations omitted). "Our Court

has held that these and other factors are not 'lynchpin[s],’ but

instead [are] circumstance[s] to be considered as part of the

totality of the circumstances in examining the reasonableness of

a checkpoint." Id. (internal quotations and citation omitted).

The trial court’s findings of fact, which were supported

by the testimony of Officers Wright and Teesateskie and Trooper
 -27-
Hipp, found “there was in place a policy for checkpoints to be

established by local police as well as assistance from the North

Carolina State Highway Patrol, [for] which assistance was

solicited by the Cherokee Police Department”; “the local

Cherokee Police Department decided to establish two checkpoints

that are random, they don't do it regularly at either one of

those places”; and that “there [was] a policy, at that time, in

writing, . . . [but] that their office . . . moved twice, and

whatever document existed then no longer exists now.” As for

the policy, the trial court further noted that “the design of

the procedure of a checkpoint was that each vehicle be stopped”;

“[t]he primary purpose was to see if the license was current,

the registration of the vehicle, and any other violation of the

law that was then eminently detectable by the officer”; and

that”[e]ach and every vehicle coming out was checked . . .

[t]here was no selectivity in the process.” In its conclusions

of law, the trial court stated that “the Court finds that those

facts support the propriety of the stop and the measure of it

and the substance of it based thereon, [and] the motion to

suppress the stop and any information obtained as a result

thereof in regard to this defendant is denied.” As the trial

court properly determined that the roadblock had a legitimate
 -28-
programmatic purpose and that the Brown factors were met,

defendant’s argument is accordingly overruled.

III.

Defendant’s final argument on appeal is that the trial

court erred in failing to grant defendant’s Knoll motion to

dismiss the DWI citation. We disagree.

A Knoll motion, based on State v. Knoll, 322 N.C. 535, 369

S.E.2d 558 (1988), alleges that a magistrate has failed to

inform a defendant of the charges against him, his right to

communicate with counsel, family, and friends, and of the

general circumstances under which he may secure his release

pursuant to N.C. Gen. Stat. § 15A-511. See N.C.G.S. § 15A-

511(b) (2013); Knoll, 322 N.C. at 536, 369 S.E.2d at 559 (“Upon

a defendant's arrest for DWI, the magistrate is obligated to

inform him of the charges against him, of his right to

communicate with counsel and friends, and of the general

circumstances under which he may secure his release.”). If a

defendant is denied these rights, the charges are subject to

being dismissed. Knoll, 322 N.C. at 544, 369 S.E.2d at 564. On

appeal, the standard of review is whether there is competent

evidence to support the trial court’s findings and the

conclusions. State v. Chamberlain, 307 N.C. 130, 143, 297 S.E.2d
 -29-
540, 548 (1982) (citation omitted). "If there is a conflict

between the state's evidence and defendant's evidence on

material facts, it is the duty of the trial court to resolve the

conflict and such resolution will not be disturbed on appeal."

Id.

Defendant raised his Knoll motion during the pretrial

hearing, arguing that the magistrate failed to promptly release

him after his arrest. Defendant appeared before the magistrate

at 1:05 a.m., and was released from jail after posting bond at

4:50 a.m. In making his Knoll motion, defendant contends that

the magistrate violated his rights to a timely pretrial release

by setting a $500.00 bond and holding him in jail for

approximately three hours and 50 minutes. Defendant’s argument

is without merit. Pursuant to our standard of review, the trial

court properly denied defendant’s Knoll motion.

In determining which conditions of
release to impose, the judicial official
must, on the basis of available information,
take into account the nature and
circumstances of the offense charged; the
weight of the evidence against the
defendant; the defendant's family ties,
employment, financial resources, character,
and mental condition; whether the defendant
is intoxicated to such a degree that he
would be endangered by being released
without supervision; the length of his
residence in the community; his record of
convictions; his history of flight to avoid
 -30-
prosecution or failure to appear at court
proceedings; and any other evidence relevant
to the issue of pretrial release.

N.C. Gen. Stat. § 15A-534(c) (2013). “If the provisions of the

. . . pretrial release statutes are not complied with by the

magistrate, and the defendant can show irreparable prejudice

directly resulting from [this noncompliance], the DWI charge

must be dismissed.” State v. Labinski, 188 N.C. App. 120, 126,

654 S.E.2d 740, 744 (2008) (citation omitted).

During the pretrial hearing, defendant presented evidence

in support of his Knoll motion that the magistrate failed to

promptly release him. The State disputed this evidence in its

response. In denying defendant’s motion, the trial court made

the following findings of fact and conclusions of law:

The defendant was arrested at or about
10:30 p.m., was referred to a trooper, was
taken to the jail in Swain County, and test
administered on or about -- wait, let's see
-- it was 12:34. Then he was released at
approximately 4:50 a.m., after making bond.
The magistrate upon receiving notification
from the trooper that the breathalyser [sic]
has registered in both tests .15, knowing
that the defendant was a non-resident, the
magistrate also opined that upon observing
the defendant, he was, and I quote, "pretty
drunk," end of quote.

Furthermore, that the magistrate was
under an obligation not to turn him out in
the public in that kind of condition
notwithstanding the defendant's assertion
 -31-
that a breathalyser [sic] test is not
accurate, and he wanted a blood test to show
that. The Court further finds the magistrate
did not deny him any rights by setting a
bond, and the bond he made, albeit some four
hours later. In any event, due to those
circumstances the Court finds that his
rights have not been violated.

There's no prejudice shown to it,
especially due to the fact that when he was
released, he was in the company of a
bondsman or bonds-lady, eventually back to
the cabin where his then girlfriend, now
wife, was. Either one of those ladies,
either one could have helped him or assisted
him in getting to a hospital to get a blood
test. And if in the event I do take notice
of alcohol dissipating from the body at .16
per hour, then extrapolating forward or at
least backwards at the time he was arrested
he had a .18. Now, going forward, had he
gone ahead and gotten the blood test when he
had a chance to, he still would have been at
or near .08, if the breathalyser [sic] was
accurate. He had the chance to do so. He
hasn't been denied any rights that he could
have exercised on his own. Therefore, that
motion under the Knoll test is denied.

At the pretrial hearing, defendant testified that the

magistrate told him of his right to contact family, friends and

counsel; defendant could not recall if the magistrate told him

that he could seek to have an independent chemical analysis

done. Defendant also acknowledged that when the magistrate asked

if he wanted to contact someone, defendant declared that he did

not, and signed the release forms indicating this. Defendant
 -32-
further testified that he wanted to undergo an independent

chemical analysis at the hospital, but that the four hour delay

in his release prevented him from doing so. The magistrate

testified that he had a “cordial conversation” with defendant,

and that defendant was properly informed of his rights pursuant

to N.C.G.S. §15A-511(b). The magistrate further testified that

defendant was given access to a telephone at the jail where he

could have contacted counsel or another person to assist him in

obtaining an independent analysis; defendant admitted that he

used this telephone to call a bail bondsman. As such, although

there was conflicting evidence between defendant and the State

as to whether the magistrate erred in his arraignment of

defendant, the trial court resolved this conflict by weighing

all relevant evidence before concluding that the magistrate did

not commit a Knoll violation. See State v. Lewis, 147 N.C. App.

274, 279, 555 S.E.2d 348, 351 (2001) (“At the hearing on the

Knoll motion, the defendant stipulated that Magistrate Alexander

informed him of his right to communicate with counsel, family,

and friends. The defendant testified that he was given a

telephone and he attempted to make calls. Although there was

conflicting evidence, the trial court found the defendant was

informed of his rights by Trooper Jackson and Magistrate
 -33-
Alexander. Further, it found that the defendant was given the

opportunity to exercise those rights but he failed to do so.

The findings of the trial court support its conclusions. Thus,

the trial court did not err in denying the motion to dismiss.”).

Defendant further argues that the magistrate erred in his

arraignment by also charging defendant with carrying a concealed

weapon. During Trooper Hipp’s investigation defendant admitted

that he had a handgun in his truck. Although defendant had a

permit for the handgun issued in South Carolina, defendant did

not produce this permit until his trial at which time the charge

was dismissed. As such, the magistrate was unaware of

defendant’s handgun permit at the time defendant was brought

before him.

In determining whether to hold defendant under bond, the

magistrate testified that he considered all relevant

circumstances surrounding defendant pursuant to N.C.G.S. § 15A-

534(c). The magistrate stated that he set defendant’s bond at

$500.00 because defendant was, based on the chemical analysis,

“pretty drunk,” defendant was from out-of-state and therefore

“[i]t’s very common to ask for some kind of a secured bond when

people are not from this area[,]” and because defendant had a

firearm on him at the time of his arrest. The magistrate then
 -34-
acknowledged that had he known defendant had a South Carolina

permit for the handgun, he “would not have charged him with that

because we honor South Carolina permits.” Therefore, as the

magistrate made his decision as to defendant’s bond by

considering all of the evidence before him, the magistrate did

not err in charging defendant for carrying a concealed weapon.

Furthermore, even if the magistrate erred in considering

defendant’s handgun in determining defendant’s bond, such error

was not prejudicial. In its conclusions of law denying

defendant’s Knoll motion, the trial court noted that

[t]here's no prejudice shown . . . . And if
in the event I do take notice of alcohol
dissipating from the body at .16 per hour,
then extrapolating forward or at least
backwards at the time he was arrested he had
a .18. Now, going forward, had he gone ahead
and gotten the blood test when he had a
chance to, he still would have been at or
near .08, if the breathalyser was accurate.

As such, the trial court specifically found that the

magistrate’s processing of defendant was not prejudicial because

defendant was so intoxicated that his length of detention and

bond amount was thus proper. See Labinski, 188 N.C. App. 120,

654 S.E.2d 740 (finding no prejudicial error where the defendant

was arrested for DWI, blew at 0.08, was assigned a $500.00 bond,

and was held in the jail for over two hours until she posted
 -35-
bond, despite the magistrate failing to determine whether the

defendant would pose a threat if released “under conditions

other than a secured bond”). Accordingly, defendant’s final

argument on appeal is overruled.

The State’s motion to dismiss is denied. The trial court’s

denial of defendant’s pretrial motions is affirmed.

Judges CALABRIA and GEER concur.