               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,
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                                  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.




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      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



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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




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(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.

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                         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


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             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




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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.

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                                  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?



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             [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



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       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).

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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



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             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

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(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.



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      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



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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


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                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[.]”

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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

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                                   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


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                                 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.




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