NO. COA13-494
NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
STATE OF NORTH CAROLINA
v. Anson County
No. 09 CRS 1939
GARRY WHITE
Appeal by the State from order entered 16 January 2013 by
Judge Tanya T. Wallace in Anson County Superior Court. Heard in
the Court of Appeals 23 October 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Carrie D. Randa, for the State-appellant.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Andrew DeSimone, for defendant-appellee.
McCULLOUGH, Judge.
The State appeals from an order granting defendant’s motion
to suppress evidence obtained during a checkpoint stop. For the
reasons set forth below, we affirm.
I. Background
On 11 September 2009, defendant Garry Anthony White was
arrested and charged with one count of driving while impaired in
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violation of N.C. Gen. Stat. § 20-138.1 and one count of driving
while license revoked in violation of N.C. Gen. Stat. § 20-28.
On 17 October 2011, defendant was convicted in Anson County
District Court of driving while impaired and given a six (6) month
active sentence. Defendant was also convicted of driving while
license revoked and given an active sentence of forty-five (45)
days. Defendant appealed the judgments to Anson County Superior
Court.
On 12 April 2010, defendant filed a motion to suppress
evidence alleging the following:
1. That on or about September 11, 2009, a blue
GMC Sonoma was stopped at a checkpoint on
High Street in Polkton, North Carolina, by
officers with the Anson County Sheriff’s
Department.
2. There was no reasonable articulable
suspicion to stop the afore-mentioned
vehicle. The stop of the afore-mentioned
vehicle was made without probable cause and
was an unreasonable seizure in violation of
the Constitution of the United States of
America and the North Carolina
Constitution.
3. The stop was in contravention of the
statutory policy on checking stations and
roadblocks set out in G.S. 20-16.3(A).
A hearing on defendant’s motion to suppress was held on 10
September 2012. J.R. Horne (“Horne”) testified that on 11
September 2009, he was serving as a traffic supervisor for the
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Anson County Sheriff’s Office and was asked to operate a checking
station in Polkton, North Carolina. Horne testified that at that
time, the Anson County Sheriff’s Department did not have a written
policy regarding checking stations, but instead, had an oral
policy.1
The checking station was designated to be a license checking
station located at High Street and College Street in Polkton.
Sometime before the checkpoint commenced, Horne wrote a “Traffic
Operational Plan” that provided the following: the checkpoint was
to begin at 7:55 p.m. on 11 September 2009; Deputy Jenkins and
Detective Erdmanczyk would assist Horne in the license checkpoint;
all cars coming through the target area would be checked; officers
would wear their traffic vests when out of their cars; and that
the “Chase Policy” would be in full effect. Horne testified that
although he was under the assumption that the checkpoint would
conclude around midnight since the stores in Polkton closed around
11:00 p.m., there was no end time indicated in the “Traffic
Operational Plan.”
Following a briefing held at 7:30 p.m. on 11 September 2009,
the checkpoint began at 7:55 p.m. All three officers – Horne,
Jenkins, and Erdmanczyk – were present with safety vests on. The
1The Anson County Sheriff’s Department did not have a written
policy concerning checking stations until 17 February 2012.
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officers were checking both northbound and southbound traffic
coming to the checkpoint on High Street, as well as westbound
traffic coming from College Street. During the license checkpoint,
all three of the officers’ vehicles had their blue lights
activated. All vehicles coming through the checking station were
stopped.
Horne testified that at 8:01 p.m., an individual was arrested
and charged with driving while impaired. At 8:24 p.m., Horne left
the checking station, accompanied by Officer Jenkins, and
transported the arrested individual to the Sheriff’s Office.
Officer Erdmanczyk stayed at the checking station but did not check
any vehicles until Horne and Jenkins returned at 9:57 p.m. From
approximately 8:24 p.m. until 9:57 p.m., no vehicles were checked
at the checkpoint. At 9:57 p.m., the checkpoint resumed. At 10:56
p.m., defendant was stopped and arrested and the checkpoint
concluded around 11:20 p.m.
On 16 January 2013, the trial court entered an order finding
the following in pertinent part:
1. The day before the actual driver’s license
check point, Corporal Horne was contacted
by Captain Dunn of the Sheriff’s
Department who requested him to operate as
a supervisory officer over a checkpoint.
. . .
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3. On September 11, 2009, the Anson County
Sheriff’s Department had no written policy
providing guidelines for motor vehicle law
checking stations as mandated by G.S. 20-
16.3A.
. . .
5. Corporal Horne did complete a written
checking station plan prior to conducting
the checkpoint on September 11, 2009. The
plan provided for a license check after a
briefing at the Polkton Fire Department to
commence at 7:55 p.m. at the intersection
of High Street and College Street which
called for the officers to wear traffic
vests, to stop all vehicles coming through
the checkpoint, to have at least one
vehicle with its blue lights activated,
and to operate said checkpoint pursuant to
an oral policy that was in force at that
time.
6. Corporal Horne testified that the reason
for the checkpoint was because there had
been complaints by the store owners of
speeding and reckless operation of motor
vehicles in this area and that this check
point was to start at 7:55 p.m. with an
anticipated conclusion time of 12:00 a.m.,
since the stores in the area close at
approximately 11:00 p.m.
7. Three (3) officers were assigned to this
checkpoint including the traffic unit
supervisor Corporal Horne . . . and
Corporal Horne testified that all officers
were to wear traffic vests, the blue
lights on each vehicle were to be
activated, that all vehicles were to be
stopped coming through this intersection
and that the chase policy was to be in
force at this checkpoint.
. . .
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9. The Defendant was stopped at approximately
10:56 p.m.
10. Prior to the Defendant being stopped,
after the checkpoint was established, at
8:24 p.m., a vehicle was stopped which
resulted in the arrest of a driver by the
name of Ab Griffin for DWI and Corporal
Horne testified that between 8:24 p.m. and
9:57 p.m. he and Deputy Jenkins left the
checkpoint to process the arrest but left
Detective Erdmanczyk at the scene until
they returned, however, Detective
Erdmanczyk did not continue with the
checkpoint or stop any vehicles.
11. At approximately 9:57 p.m. officers Horne
and Jenkins returned to the scene of the
checkpoint and the checkpoint continued
and the officers followed the same
procedures in operating the checkpoint as
were used prior to the suspension at 8:24
p.m.
. . .
13. The Court is unsure of whether or not there
was a suspension of the original
checkpoint for a period of almost an hour
and a half or whether this is a new stop
at 10:56 a.m. with no guidelines or plan
in place.
The trial court concluded that
the nature of the stop of the Defendant which
occurred after the checkpoint had been
abandoned for a period of approximately an
hour and a half was in the nature of a
spontaneous stop. Coupled with the lack of a
written policy in full force and effect and
taking into consideration whether a plan was
reinstituted, or a new plan instituted, upon
the return of the officers to the checkpoint
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at 9:27 p.m. mandates a conclusion that there
was a substantial violation of G.S. 20-16.3A
and the Court hereby orders that all evidence
obtained as a result of the stop of the
Defendant’s vehicle is suppressed.
From this order, the State appeals.
II. Standard of Review
“Generally, an appellate court’s review of a trial court’s
order on a motion to suppress is strictly limited to a
determination of whether its findings are supported by competent
evidence, and in turn, whether the findings support the trial
court’s ultimate conclusion.” State v. Roberson, 163 N.C. App.
129, 132, 592 S.E.2d 733, 735 (2004) (citation and quotation marks
omitted). “Where no exception is taken to a finding of fact by
the trial court, the finding is presumed to be supported by
competent evidence and is binding on appeal.” State v. Taylor,
178 N.C. App. 395, 401, 632 S.E.2d 218, 223 (2006) (citation
omitted).
“While the trial court’s factual findings are binding if
sustained by the evidence, the court’s conclusions based thereon
are reviewable de novo on appeal.” State v. Parker, 137 N.C. App.
590, 594, 530 S.E.2d 297, 300 (2000) (citation omitted).
III. Discussion
The State argues that the trial court erred in granting
defendant’s motion to suppress where: (A) finding of fact 13 is
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not supported by the evidence; (B) there was no substantial
violation of N.C. Gen. Stat. § 20-16.3A; and (C) no constitutional
violation or violation of Chapter 15A of the North Carolina General
Statutes was found. Because arguments (A) and (B) are closely
related, we will address them together.
A. Finding of Fact Number 13
and
B. N.C. Gen. Stat. § 20-16.3A
First, the State argues that finding of fact number 13 is not
supported by the evidence and thus, does not support the trial
court’s conclusion of law number 5.
The trial court noted in finding of fact number 13 that:
13. The Court is unsure of whether or not there
was a suspension of the original
checkpoint for a period of almost an hour
and a half or whether this is a new stop
at 10:56 a.m. with no guidelines or plan
in place.
It also concluded in conclusion of law number 5 that:
5. That the nature of the stop of the
Defendant which occurred after the
checkpoint had been abandoned for a period
of approximately an hour and a half was in
the nature of a spontaneous stop. Coupled
with the lack of a written policy in full
force and effect and taking into
consideration whether a plan was
reinstituted, or a new plan instituted,
upon the return of the officers to the
checkpoint at 9:27 p.m. mandates a
conclusion that there was a substantial
violation of G.S. 20-16.3A and the Court
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hereby orders that all evidence obtained
as a result of the stop of the Defendant’s
vehicle is suppressed.
We note that during defendant’s motion to suppress hearing,
there was ample testimony concerning the suspension of the
checkpoint for an hour and half, from 8:24 p.m. until 9:57 p.m.
Horne testified that at 8:01 p.m., an individual was arrested and
charged with driving while impaired. Horne and Jenkins left the
checkpoint from 8:24 p.m. until 9:57 p.m. in order to transport
this individual to the Sheriff’s Office. Horne made a decision
that during the time period that he and Jenkins were absent from
the checkpoint, “the checkpoint would stop[.]” Erdmanczyk
remained at the checkpoint, but did not check any vehicles or
licenses during this time at the direction of Horne. The following
exchange occurred at defendant’s hearing:
[Defense Counsel:] We have a checking station
that was basically – not due to your fault but
the fault of, I guess, the driver who
allegedly offended the law – that was
abandoned by you for almost an hour and a half,
where vehicles were free to come and go
without being checked; is that correct?
[Horne:] Yes, sir.
In addition, evidence established that defendant was stopped at
the checkpoint at 10:56 p.m. Based on the foregoing, we hold that
there was sufficient competent evidence to support the trial
court’s finding of fact 13 and overrule the State’s argument.
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Even assuming arguendo that finding of fact 13 was not
supported by the evidence, the State’s argument that the trial
court erred by making conclusion of law number 5 is without merit.
The remaining unchallenged findings of fact, which are binding on
appeal, support the trial court’s ultimate conclusion that there
was a substantial violation of section 20-16.3A of the North
Carolina General Statutes.
We call attention to unchallenged finding of fact 3, which
provides the following:
On September 11, 2009, the Anson County
Sheriff’s Department had no written policy
providing guidelines for motor vehicle law
checking stations as mandated by G.S. 20-
16.3A.
“When findings that are unchallenged, or are supported by
competent evidence, are sufficient to support the judgment, the
judgment will not be disturbed because another finding, which does
not affect the conclusion, is not supported by evidence.” Dawson
Industries, Inc. v. Godley Constr. Co., 29 N.C. App. 270, 275, 224
S.E.2d 266, 269 (1976) (citation omitted).
Section 20-16.3A of the North Carolina General Statutes,
which sets forth the requirements for checking stations and
roadblocks, provides that:
(a) A law-enforcement agency may conduct
checking stations to determine
compliance with the provisions of this
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Chapter. If the agency is conducting a
checking station for the purposes of
determining compliance with this
Chapter, it must:
. . .
(2a) Operate under a written policy that
provides guidelines for the
pattern, which need not be in
writing. The policy may be either
the agency’s own policy, or if the
agency does not have a written
policy, it may be the policy of
another law enforcement agency, and
may include contingency provisions
for altering either pattern if
actual traffic conditions are
different from those anticipated,
but no individual officer may be
given discretion as to which vehicle
is stopped or, of the vehicles
stopped, which driver is requested
to produce drivers license,
registration, or insurance
information. If officers of a law
enforcement agency are operating
under another agency’s policy, it
must be stated in writing.
N.C.G.S. § 20-16.3A(a)(2a) (2013) (emphasis added).
It is well established that
[t]he paramount objective of statutory
interpretation is to give effect to the intent
of the legislature. The primary indicator of
legislative intent is statutory language; the
judiciary must give clear and unambiguous
language its plain and definite meaning.
Where the language of a statute is clear and
unambiguous there is no room for judicial
construction and the courts must give it its
plain and definite meaning[.]
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State v. Largent, 197 N.C. App. 614, 617, 677 S.E.2d 514, 517
(2009) (citations and quotation marks omitted).
We observe that the language used in N.C.G.S. § 20-
16.3A(a)(2a) is mandatory – “If the agency is conducting a checking
station . . ., it must [o]perate under a written policy[.]”
(emphasis added). See State v. Inman, 174 N.C. App. 567, 570, 621
S.E.2d 306, 309 (2005) (noting that the word “must” in a statute
is ordinarily “deemed to indicate a legislative intent to make the
provision of the statute mandatory, and a failure to observe it
fatal to the validity of the purported action”).
In light of the mandatory language contained within N.C.G.S.
§ 20-16.3A, we conclude that the trial court did not err by
concluding that a lack of a written policy in full force and effect
at the time of defendant’s stop at the checkpoint constituted a
substantial violation of section 20-16.3A.
C. Constitutional Violation or Violation of Chapter 15A
Next, the State argues that “evidence must only be suppressed
if there is a Constitutional violation or a substantial violation
of the provisions of Chapter 15A. . . . Provisions outside of
chapter 15A do not require suppression.” The State asserts that
even assuming arguendo that a violation of N.C. Gen. Stat. § 20-
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16.3A occurred2, the trial court should not have suppressed the
evidence obtained at defendant’s stop, and doing so amounted to
error. We disagree.
The State relies on section 15A-974 of the North Carolina
General Statutes, titled “Exclusion or suppression of unlawfully
obtained evidence,” for its contention. N.C. Gen. Stat. § 15A-
974 states that evidence must be suppressed if “(1) Its exclusion
is required by the Constitution of the United States or the
Constitution of the State of North Carolina; or (2) It is obtained
as a result of a substantial violation of the provisions of
[Chapter 15A (Criminal Procedure Act).]” N.C.G.S. § 15A-974(a)(1)
– (2) (2013).
In response to the State’s arguments, defendant directs our
attention to subsection (d) of N.C.G.S. § 20-16.3A. In subsection
(d), the General Assembly provided that “[t]he placement of
checkpoints should be random or statistically indicated, and
agencies shall avoid placing checkpoints repeatedly in the same
location or proximity.” N.C.G.S. § 20-16.3A(d) (2013). Notably,
the General Assembly further provided that “[t]his subsection
2Here, the trial court did not reach the question of the
constitutionality of the checkpoint and instead, rested its
analysis on the State’s violation of section 20-16.3A of the North
Carolina General Statues as previously discussed.
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shall not be grounds for a motion to suppress or a defense to any
offense arising out of the operation of a checking station.” Id.
(emphasis added).
A “well-known canon of statutory construction [is] expressio
unius est exclusio alterius: the expression of one thing is the
exclusion of another.” State v. Dewalt, 209 N.C. App. 187, 191-
92, 703 S.E.2d 872, 875 (2011) (citation omitted). Applying this
principle to the case at hand, we hold that because the General
Assembly specifically included language in subsection (d) that it
shall not be a basis for a motion to suppress, meanwhile excluding
the same language in subsection (a)(2a), subsection (a)(2a) is a
proper basis for a motion to suppress.
Furthermore, our Court has held that a violation of another
section of Chapter 20 is an appropriate basis for a motion to
suppress, despite the lack of express statutory language
authorizing suppression. For example, in State v. Buckheit, __
N.C. App. __, __, 735 S.E.2d 345, 347 (2012), our Court reversed
a trial court’s denial of the defendant’s motion to suppress
evidence obtained in the violation of section 20-16.2(a) of the
North Carolina General Statutes. See also State v. Hatley, 190
N.C. App. 639, 661 S.E.2d 43 (2008) (holding that because the State
violated N.C. Gen. Stat. § 20-16.2(a), the trial court should have
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granted the defendant’s motion to suppress evidence obtained from
that violation).
Based on the foregoing analysis, we hold that the trial court
did not err by granting defendant’s motion to suppress and affirm
the order of the trial court.
Affirmed.
Judges DAVIS and ELMORE concur.