IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1279
Filed: 2 August 2016
Orange County, No. 13 CRS 051955
STATE OF NORTH CAROLINA
v.
ROBERT WILLIAM ASHWORTH
Appeal by Defendant from judgment entered 25 March 2015 by Judge Reuben
F. Young in Superior Court, Orange County. Heard in the Court of Appeals 25 April
2016.
Attorney General Roy Cooper, by Assistant Attorney General Kathryne E.
Hathcock, for the State.
Coleman, Gledhill, Hargrave, Merritt & Rainsford, P.C., by James Rainsford,
for Defendant.
McGEE, Chief Judge.
Robert William Ashworth (“Defendant”) appeals from judgment after a jury
found him guilty of driving while impaired. We vacate the judgment and the trial
court’s denial of Defendant’s motion to suppress, and remand for further proceedings.
I. Background
In the evening hours of 31 July 2013, North Carolina State Troopers Matthew
Morrison (“Trooper Morrison”) and Ray Fort (“Trooper Fort”) were on duty in Orange
County, North Carolina. They decided to operate a checking station, or checkpoint,
STATE V. ASHWORTH
Opinion of the Court
at the intersection of Smith Level Road and Damascus Church Road in Chapel Hill,
that was to begin at 8:00 p.m. and continue for approximately two hours. Prior to
initiating the checking station, Trooper Morrison contacted his superior, Sergeant
Michael Stuart (“Sergeant Stuart”), to request authorization. Sergeant Stuart gave
his authorization, and later completed a “checking station authorization” form (“the
form”). At the hearing, Sergeant Stuart testified he was unsure of when he filled out
the form, but that it was likely the next day, 1 August 2013. The form noted that the
primary purpose of the checking station was to ask for driver’s licenses, and that the
station would operate from 8:00 p.m. to 10:00 p.m.
At approximately 9:45 p.m., a vehicle driven by Defendant approached on
Damascus Church Road and stopped at the checking station. Trooper Morrison did
not notice any violation of the law as Defendant approached. Trooper Morrison
requested Defendant’s driver’s license, which Defendant produced. Detecting the
odor of alcohol coming from the vehicle, Trooper Morrison asked Defendant whether
he had been drinking. Defendant responded: “You got me. I had about five beers back
to back, drank them real quick.” Trooper Morrison conducted field sobriety tests on
Defendant and, after determining that Defendant was impaired, arrested him for
driving while impaired. A chemical analysis later revealed that Defendant’s blood-
alcohol concentration at the time of his arrest was 0.08.
-2-
STATE V. ASHWORTH
Opinion of the Court
Prior to trial, Defendant filed a motion to suppress all evidence obtained as a
result of the stop. Defendant argued that the checking station violated his rights
under the Fourth, Fifth, and Fourteenth Amendments to the United States
Constitution, and Article I, Sections 19, 20 and 23 of the North Carolina Constitution.
Defendant’s motion was heard on 17 November 2014. The State presented the
testimony of Trooper Morrison and Sergeant Stuart. Following witness testimony
and arguments of counsel, the trial court took the matter under advisement. The
trial court entered a written order on 19 November 2014 denying Defendant’s motion
to suppress. The case proceeded to trial. At trial, Defendant failed to timely object
to the admission of evidence obtained as a result of the checkpoint stop. Defendant
was convicted by a jury on 25 March 2015 of driving while impaired. Defendant
appeals.
II. Analysis
In his sole argument, Defendant contends the trial court plainly erred in
denying his motion to suppress. The scope of review of a suppression order is “strictly
limited to determining whether the trial judge’s underlying findings of fact are
supported by competent evidence, in which event they are conclusively binding on
appeal, and whether those factual findings in turn support the judge’s ultimate
conclusions of law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)
(citations omitted). Findings of fact that are not challenged on appeal are binding
-3-
STATE V. ASHWORTH
Opinion of the Court
and deemed to be supported by competent evidence. State v. Biber, 365 N.C. 162,
168, 712 S.E.2d 874, 878 (2011). For findings that are challenged, this Court’s review
is “limited to determining whether competent evidence supports the trial court’s
findings of fact[.]” State v. Granger, ___ N.C. App. ___, ___, 761 S.E.2d 923, 926 (2014)
(citation omitted). “Competent evidence is evidence that a reasonable mind might
accept as adequate to support the finding.” State v. Chukwu, 230 N.C. App. 553, 561,
749 S.E.2d 910, 916 (2013) (citation omitted). If there is competent evidence to
support the trial court’s finding, then it is binding on appeal, “even if the evidence is
conflicting.” State v. Barden, 356 N.C. 316, 332, 572 S.E.2d 108, 120-21 (2002)
(citation omitted).
As Defendant concedes, he failed to lodge a timely objection at trial to the
introduction of the evidence recovered as a result of Defendant being stopped at the
checking station. Our Supreme Court has held that a pretrial motion to suppress is
a type of motion in limine, State v. Golphin, 352 N.C. 364, 405, 533 S.E.2d 168, 198
(2000), and 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.” State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303
-4-
STATE V. ASHWORTH
Opinion of the Court
(1999) (per curiam) (citations omitted). Therefore, we consider whether the trial court
plainly erred in denying Defendant’s motion to suppress.1
The plain error rule
is always to be applied cautiously and only in the
exceptional case where, after reviewing the entire record,
it can be said the claimed error is a “fundamental error,
something so basic, so prejudicial, so lacking in its
elements that justice cannot have been done,” or “where
[the error] is grave error which amounts to a denial of a
fundamental right of the accused,” or the error has
“‘resulted in a miscarriage of justice or in the denial to
appellant of a fair trial’” or where the error is such as to
“seriously affect the fairness, integrity or public reputation
of judicial proceedings” or where it can be fairly said
“the . . . mistake had a probable impact on the jury’s finding
that the defendant was guilty.”
State v. Cummings, 352 N.C. 600, 616, 536 S.E.2d 36, 49 (2000) (alterations in
original) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)); see
also State v. Waring, 364 N.C. 443, 468, 701 S.E.2d 615, 631 (2010) (holding that
when a defendant “fail[s] to preserve issues relating to [a] motion to suppress, we
review for plain error”). To prevail, a defendant must show “not only that there was
error, but that absent the error, the jury probably would have reached a different
result.” State v. Haselden, 357 N.C. 1, 13, 577 S.E.2d 594, 602 (2003) (internal
quotation marks and citation omitted).
1 To be entitled to plain error review, a defendant must “specifically and distinctly contend
that the alleged error constituted plain error.” State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326,
333 (2012). Here, Defendant has done so; therefore, we proceed to a plain error analysis.
-5-
STATE V. ASHWORTH
Opinion of the Court
A. Sufficiency of the Findings of Fact
In its order denying Defendant’s motion to suppress, the trial court entered the
following findings of fact:
1. Trooper Matthew Morrison has been working as a
Trooper for the State of North Carolina, Department of
Public Safety for the N.C. State Highway Patrol for two
years. Prior to working for the N.C. State Highway Patrol,
Trooper Morrison worked for the Chatham County
Sheriffs’ Office for the previous seven years.
2. Sergeant Michael Stewart [sic] is employed and working
as a Trooper for the State of North Carolina in the N.C.
Department of Public Safety for the N.C. State Highway
Patrol for over seven years. He has been a Sergeant for two
years.
3. On 31 July 2013 at or about 9:45 p.m., Trooper Morrison
was working a checking station (hereafter referred to as
“checkpoint”) on Smith Level Road (1919) at the
intersection with Damascus Church Road (1939) in Orange
County with Trooper Fort. He was wearing his duty
uniform, a safety vest, carrying a flash light and operating
a marked patrol car with a light bar. The purpose of the
checkpoint was to check driver’s licenses and look for traffic
violations. Trooper Morrison’s vehicle was parked to the
side of the road next to a private driveway with his lights
operating.
4. Two officers are required by Highway Patrol Policy for a
checkpoint, so if one of them got tied up with a driver, they
had to stop the checkpoint until they were both available
to work the checkpoint.
5. Prior to setting up the checkpoint, Trooper Morrison
called Sergeant Stewart, one of his supervising officers,
indicated that he and Trooper Fort wanted to set a
checkpoint on 31 July 2013 to check for drivers/operator's
-6-
STATE V. ASHWORTH
Opinion of the Court
license and other traffic violations of the traffic law at the
intersection of Smith Level Road (1919) and Damascus
Church Road (1939) from 8:00 p.m. until 10:00 p.m. by
stopping every vehicle in every direction. Because Highway
Patrol Policy for a checkpoint required two officers present
at the checkpoint, if one of the two officer[s] got tied up with
a driver, they had to stop the checkpoint until they were
both available to work the checkpoint.
6. Sergeant Stewart does not know when he filled out and
signed the Checking Station Authorization Form (Form
HP-14), but it was not that night, probably the next
morning. He could have made a mistake in filling out the
Checking Station Authorization Form. The Checking
Station Authorization Form (HP-14) prepared and signed
by Sergeant Stewart was marked and entered into
evidence as State's Exhibit Number Two.
7. The Checking Station Authorization Form later
completed after the checkpoint had been conducted
indicates the checking station was located on the western
end of Damascus Church Road (1940) (near the
intersection of Jones Ferry Road) and Smith Level Road
(1919) checking only southbound traffic.
8. The defendant was stopped on Damascus Church Road
near Smith Level Road. Trooper Morrison saw a truck
driven by the defendant pulled up to the checkpoint.
Defendant only challenges findings of fact three and five. Thus, all other findings of
fact are deemed to be supported by competent evidence and are binding on this Court.
Biber, 365 N.C. at 168, 712 S.E.2d at 878.
Defendant asserts the portion of finding of fact three that states Trooper
Morrison was “operating a marked patrol car with a light bar” is unsupported by
-7-
STATE V. ASHWORTH
Opinion of the Court
competent evidence. We agree. At the hearing on Defendant’s motion to suppress,
the following colloquy occurred between the State and Trooper Morrison:
[State:] Were you using any other lights other than what
was on the patrol vehicles?
[Trooper Morrison:] We had our flashlights.
In addition, Trooper Morrison testified that both his vehicle and Trooper Fort’s
vehicle “had their lights on.” However, Trooper Morrison himself never testified he
was operating a patrol vehicle, and did not mention whether his vehicle, even if it
was a patrol vehicle, was marked. Further, Trooper Morrison did not testify
regarding whether his vehicle was equipped with a light bar. We hold that the
evidence and testimony presented at the hearing on Defendant’s motion to suppress
does not support the challenged portion of finding of fact three, which is therefore not
binding on appeal. See State v. Otto, 366 N.C. 134, 136, 726 S.E.2d 824, 827 (2012)
(holding that when the “evidence does not support the trial court’s finding,” the
finding “is not binding on this Court.”).
Defendant also challenges a portion of finding of fact five as unsupported by
competence evidence. The challenged portion of finding of fact five states:
Prior to setting up the checkpoint, Trooper Morrison called
Sergeant Stewart, one of his supervising officers, [and]
indicated that he and Trooper Fort wanted to set a
checkpoint on 31 July 2013 to check for drivers/operator’s
license and other traffic violations of the traffic law at the
intersection of Smith Level Road (1919) and Damascus
Church Road (1939) from 8:00 p.m. until 10:00 p.m. by
stopping every vehicle in every direction.
-8-
STATE V. ASHWORTH
Opinion of the Court
Defendant contends that no competent evidence established that Trooper Morrison
communicated to Sergeant Stuart: (1) a dedicated start and end time for the checking
station; (2) which directions of traffic would be stopped; or (3) whether every vehicle
would be stopped. We agree.
At the hearing on Defendant’s motion to suppress, Trooper Morrison testified
about his conversation with Sergeant Stuart regarding authorization for the checking
station:
[State:] So tell us as best as you recall: What did you talk
to Sergeant Stuart about or what did you say to him to get
authorization.
[Trooper Morrison:] I believe when we contacted him we
just told him we wanted to do a checking station at
Damascus -- excuse me at Smith Level and Damascus,
right there at that intersection. I think we told him we
were going to start -- I don’t recall exactly if we told him
what time we were going to start it or not, but we just told
him we had two troopers there and wanted to do a checking
station. And he just gave us his authorization. And he
said, “Okay. Just let me know –” I think he said, “Let me
know what time you start it, and let me know what time
you end it.”
[State:] Did you discuss what directions of traffic you
would be stopping at this intersection?
[Trooper Morrison:] We were going to stop all three,
coming off -- going down Smith Level north and south, and
coming off of Damascus.
[State:] Do you recall whether or not you told Sergeant
Stuart that specific information?
-9-
STATE V. ASHWORTH
Opinion of the Court
[Trooper Morrison:] I don’t. I don’t think I told him that.
I just told him – I am pretty sure we just told him we were
going to do it right there at Damascus and Smith Level.
Trooper Morrison admitted there was “no exact ending time” set for the checking
station.
Sergeant Stuart testified he did not recall whether he asked Trooper Morrison
what time the checking station was to begin, but said as a general rule he asked for
that information because he “need[ed] that information . . . to fill out the
authorization form.”
Sergeant Stuart further testified that as a general rule troopers checked cars
in every direction, but he did not recall whether Trooper Morrison stated which
directions would be checked at that particular checking station.
After reviewing the record and transcript, we agree with Defendant that the
challenged portion of finding of fact five is unsupported by competent evidence. No
evidence or testimony presented at the hearing on Defendant’s motion to suppress
established that Trooper Morrison informed Sergeant Stuart of a dedicated start or
end time for the checking station, which directions of traffic would be stopped, or
whether every car would be stopped. The challenged portion of finding of fact five,
being unsupported by competent evidence, is not binding on appeal. See Otto, 366
N.C. at 136, 726 S.E.2d at 827.
B. Constitutionality of the Checking Station
- 10 -
STATE V. ASHWORTH
Opinion of the Court
In the present case, all findings of fact, except for the challenged portions of
findings of fact three and five, are binding on appeal. Biber, 365 N.C. at 168, 712
S.E.2d at 878. We next determine whether, as Defendant argues, the trial court’s
conclusion of law that the checking station was operated within federal constitutional
limitations,2 was plain error. In its order denying Defendant’s motion to suppress,
the trial court reached the following pertinent conclusions of law based on its findings
of fact:
3. Checkpoints for driver’s licenses and other traffic
violations advance an “important purpose” and the public
has a “vital interest” in “ensuring compliance with these
and other types of motor vehicle laws that promote public
safety on the roads.” Clearly, ensuring that drivers are
properly licensed as required by law is of “vital interest” to
the public and “the gravity of the public concerns are much
greater than and were well-served by the minimal seizure”
by temporarily stopping vehicles at this checkpoint.
4. Although the officers in this case decided somewhat
whimsically to set up this checkpoint, the officers did
request approval and a Checking Station Authorization
Form (HP-14) completed and signed by Sergeant Stewart,
their Sergeant, as required for a checkpoint prior to
conducting the checkpoint. The checkpoint had a
“predetermined starting and ending time.” In accordance
with the Highway Patrol Policy, a minimum of two officers
were assigned to the checkpoint, two vehicles were located
at the checkpoint with their blue lights and emergency
flashers operating, the officers were wearing uniforms and
reflective safety vests, the officers were carrying
2 While Defendant’s motion to suppress argued the checking station violated his state and
federal constitutional rights, Defendant’s brief to this Court only argues the checking station was
unconstitutional on Fourth Amendment grounds. Any argument on state constitutional grounds is
deemed abandoned. N.C.R. App. P. Rule 28(b)(6).
- 11 -
STATE V. ASHWORTH
Opinion of the Court
flashlights, the checkpoint was visible for a distance in
either direction, officers were to stop every vehicle that
approached the checkpoint from every direction and
officers were to ask for the same information—driver’s
license from every driver. However, no reason was stated
for the selection of this particular location on this
particular highway for this checkpoint, nor was any reason
stated for the selection of this particular time span.
5. Although, according to the Checking Station
Authorization Form, the road number on which the
checkpoint was to be conducted was “Road Number” 1940,
which is west Damascus Church Road; the “Nearest Road
Number” on the form was “1919”, which is Smith Level
Road. Since only 1939, which is east Damascus Church
Road is near and intersects 1919; which is Smith Level
Road, the reference to 1940 as the location for the
checkpoint was clearly a typographical error.
6. Although conducting a checkpoint at an intersection,
rather than a designated stretch of a street or highway, is
less supportive of an identified, particular problem on
either road, and more supportive of a “fishing expedition”;
the fact that east Damascus Church ends at its intersection
with Smith Level Road, rather than continuing on through
the intersection, makes the “designated purpose” of the
checkpoint appear more logical to drivers traveling on
Smith Level Road that all of the drivers in the vicinity are
being treated equally. If drivers on Smith Level Road were
being stopped and those on Damascus Church Road were
not being stopped, it might appear that the former were
being unfairly singled out for detention while the latter
were receiving unwarranted favor.
7. A applying [sic] the three-prong inquiry set out in
Brown[ v. Texas, 443 U.S. 47, 61 L. Ed. 2d 357 (1979)], the
primary programmatic purpose of this checkpoint was
lawful, the officers “appropriately tailored their checkpoint
stops” to fit their primary programmatic purpose, and “the
- 12 -
STATE V. ASHWORTH
Opinion of the Court
public interest in the checkpoint was NOT outweighed by
the intrusion on the Defendant’s protected liberty interest.”
8. For the foregoing reasons, the stop of the Defendant was
constitutional and did not violate N.C.G.S. §15A-16.3A.
As noted, we review a motion to suppress to determine whether the trial court’s
“factual findings . . . support the judge’s ultimate conclusions of law.” Cooke, 306 N.C.
at 134, 291 S.E.2d at 619. A trial court’s conclusions of law on a motion to suppress
are reviewed de novo and are subject to a full review, under which this Court
considers the matter anew and freely substitutes its own judgment for that of the
trial court. See Biber, 365 N.C. at 168, 712 S.E.2d at 878. The conclusions of law
“must be legally correct, reflecting a correct application of applicable legal principles
to the facts found.” State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997)
(citation omitted). In the present case, we hold that the binding findings of fact are
insufficient to support the trial court’s conclusions of law regarding the
constitutionality of the checking station.
The Fourth Amendment protects individuals “against unreasonable searches
and seizures.” U.S. Const. amend. IV. “A traffic stop is a seizure even though the
purpose of the stop is limited and the resulting detention quite brief.” State v.
Barnard, 362 N.C. 244, 246, 658 S.E.2d 643, 645 (2008) (quotation omitted). As the
United States Supreme Court has held, “[t]he principal protection of Fourth
Amendment rights at checkpoints lies in appropriate limitations on the scope of the
stop.” United States v. Martinez-Fuerte, 428 U.S. 543, 566-567, 49 L. Ed. 2d 1116
- 13 -
STATE V. ASHWORTH
Opinion of the Court
(1976) (citation omitted). Checkpoint seizures are consistent with the Fourth
Amendment if they are “carried out pursuant to a plan embodying explicit, neutral
limitations on the conduct of individual officers.” Brown v. Texas, 443 U.S. 47, 51, 61
L. Ed. 2d 357 (1979) (citation omitted).
When considering a constitutional challenge to a checkpoint, a reviewing court
“must undertake a two-part inquiry to determine whether the checkpoint meets
constitutional requirements.” State v. Veazey, 191 N.C. App. 181, 185, 662 S.E.2d
683, 686 (2008). First, the court must determine the primary programmatic purpose
of the checkpoint. Id. (citing City of Indianapolis v. Edmond, 531 U.S. 32, 40-42, 148
L. Ed. 2d 333, 343 (2000)). Second, if a legitimate primary programmatic purpose is
found, “‘[t]hat does not mean the stop is automatically, or even presumptively,
constitutional. It simply means that [the court] must judge its reasonableness, hence,
its constitutionality, on the basis of the individual circumstances.’” Id. (quoting
Illinois v. Lidster, 540 U.S. 419, 426, 157 L. Ed. 2d 843, 852 (2004)).
In the present case, the trial court concluded that the checking station had a
proper programmatic purpose of checking for driver’s licenses and other traffic
violations. Defendant does not challenge the primary programmatic purpose of the
checking station; therefore, we consider whether the trial court plainly erred in
concluding that the checkpoint was “reasonable,” given the findings of fact in this
case.
- 14 -
STATE V. ASHWORTH
Opinion of the Court
To determine whether a checkpoint was “reasonable” under the Fourth
Amendment, a court must weigh the public’s interest in the checkpoint against the
individual’s Fourth Amendment privacy interest. See, e.g., Martinez-Fuerte, 428 U.S.
at 555, 49 L. Ed. 2d at 1126. In Brown v. Texas, the United States Supreme Court
developed a three-part test when conducting this balancing inquiry, and held a
reviewing 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.” 443 U.S. at 51, 61 L. Ed. 2d
at 362 (citation omitted). If, on balance, these factors weigh in favor of the public
interest, the checkpoint is reasonable and therefore constitutional. Veazey, 191 N.C.
App. at 186, 662 S.E.2d at 687 (citing Lidster, 540 U.S. at 427-28, 157 L. Ed. 2d at
852-53).
Under Brown’s first prong, the trial court was to consider “the gravity of the
public concerns served by the seizure.” Brown, 443 U.S. at 51, 61 L. Ed. 2d at 362.
Both this Court and the United States Supreme Court have held that “license and
registration checkpoints advance an important purpose[.]” Veazey, 191 N.C. App. at
191, 662 S.E.2d at 690 (citation omitted); see also Delaware v. Prouse, 440 U.S. 648,
658, 59 L. Ed. 2d 660, 670-71 (1979) (“States have a vital interest in ensuring that
only those qualified to do so are permitted to operate motor vehicles, that these
vehicles are fit for safe operation, and hence that licensing, registration, and vehicle
- 15 -
STATE V. ASHWORTH
Opinion of the Court
inspection requirements are being observed.”). In the present case, the trial court
found as fact that the purpose of the checking station was to “check driver’s licenses
and look for traffic violations,” and concluded as a matter of law that “ensuring that
drivers are properly licensed . . . [was] of ‘vital interest’” and that interest outweighed
the “minimal seizure” of this checkpoint stop. This finding of fact and conclusion of
law reflect a sufficient consideration of Brown’s first prong. See State v. McDonald,
___ N.C. App. ___, ___, 768 S.E.2d 913, 921 (2015) (“While . . . checking for driver’s
license and vehicle registration violations is a permissible purpose for the operation
of a checkpoint, the identification of such a purpose does not exempt the trial court
from determining the gravity of the public concern actually furthered under the
circumstances surrounding the specific checkpoint being challenged.”). Accordingly,
the trial court did not err, nor plainly err, in concluding that the first prong of Brown
was satisfied.
Under Brown’s second prong, the trial court was required to consider “the
degree to which the seizure advance[d] the public interest.” Brown, 443 U.S. at 51,
61 L. Ed. 2d at 362. This 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
- 16 -
STATE V. ASHWORTH
Opinion of the Court
starting or ending time; and whether police offered any
reason why that particular time span was selected.
Veazey, 191 N.C. App. at 191, 662 S.E.2d at 690 (citation omitted). In its order
denying Defendant’s motion to suppress, the trial court made no findings of fact
regarding whether the checkpoint was spontaneously set up on a whim,3 whether the
police offered a reason why the intersection of Damascus Church and Smith Level
Road was chosen, why the time span for the checking station was chosen, or any other
reason why the checking station advanced the public interest. Although the trial
court did find as fact that Trooper Morrison informed Sergeant Stuart that the
checking station had a predetermined start and end time – 8:00 p.m. and 10:00 p.m.,
respectively – as we have held, that finding of fact is unsupported by competent
evidence. See supra, at 8-9. We hold that the trial court’s findings of fact do not
support its conclusion of law that the seizure was appropriately tailored and
advanced the public interest and, given the lack of findings to support such a
conclusion, the trial court plainly erred in holding that the second Brown prong was
satisfied. Brown, 443 U.S. at 51, 61 L. Ed. 2d at 362.
Finally, Brown’s third prong required the trial court to consider “the severity
of the [checking station’s] interference with individual liberty.” Id. In general, “[t]he
circumstances surrounding a checkpoint stop and search are far less intrusive than
3
The trial court did conclude as a matter of law, however, that “the officers in this case decided
somewhat whimsically to set up this checkpoint[.]”
- 17 -
STATE V. ASHWORTH
Opinion of the Court
those attending a roving-patrol stop.” Martinez-Fuerte, 428 U.S. at 558, 49 L. Ed. 2d
at 1128 (quotation omitted). However, “courts have consistently required restrictions
on the discretion of the officers conducting the 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, 662 S.E.2d at 690-91. As this Court noted
in Veazey,
[c]ourts 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. Our Court
has held that these and other factors are not “lynchpins,”
but instead are circumstances to be considered as part of
the totality of the circumstances in examining the
reasonableness of a checkpoint.
Id. at 193, 662 S.E.2d at 691 (internal citations and quotation marks omitted).
In the present case, the trial court did make several findings of fact regarding
Brown’s third prong, including: (1) Sergeant Stuart, a supervising officer, authorized
the checking station; (2) the lights on Trooper Morrison’s vehicle were operating; and
(3) the troopers were wearing duty uniforms and safety vests, and were carrying
- 18 -
STATE V. ASHWORTH
Opinion of the Court
flashlights. While these findings demonstrate that the trial court did consider some
of the relevant factors under Brown’s third prong, the lack of any findings to support
the trial court’s conclusion that the checking station “advanced the public interest”
under Brown’s second prong provided no basis upon which the court could “weigh the
public’s interest in the checkpoint against the individual’s Fourth Amendment
privacy interest.” Veazey, 191 N.C. App. at 186, 662 S.E.2d at 687. As our Court held
in McDonald,
[w]e do not mean to imply that the factors discussed above
are exclusive or that trial courts must mechanically engage
in a rote application of them in every order ruling upon a
motion to suppress in the checkpoint context. Rather, our
holding today simply reiterates our rulings in Veazey and
its progeny that in order to pass constitutional muster,
such orders must contain findings and conclusions
sufficient to demonstrate that the trial court has
meaningfully applied the three prongs of the test
articulated in Brown.
McDonald, ___ N.C. App. at ___, 768 S.E.2d at 921.
III. Conclusion
The findings of fact in the trial court’s order denying Defendant’s motion to
suppress do not support the trial court’s conclusions of law that the checking station
was conducted consistent with the Fourth Amendment. The trial court’s findings of
fact did not permit the judge to meaningfully weigh the considerations required under
the second and third prongs of Brown. We hold the error amounted to plain error, as
it likely affected the jury’s verdict – the evidence obtained at the checking station was
- 19 -
STATE V. ASHWORTH
Opinion of the Court
the only evidence presented by the State at trial. The trial court’s judgment and the
order denying Defendant’s motion to suppress are vacated, and this case is remanded
for further findings of fact and conclusions of law regarding the reasonableness of the
checkpoint stop.
JUDGMENT VACATED; VACATED AND REMANDED.
Judges STEPHENS and DAVIS concur.
- 20 -