An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.


                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA14-1403

                                  Filed: 6 October 2015

Brunswick County, No. 12 CRS 55699

STATE OF NORTH CAROLINA

               v.

JOSEPH VELTON O’NEAL


       Appeal by defendant from judgment entered 23 April 2014 by Judge Claire V.

Hall in Brunswick County Superior Court.              Heard in the Court of Appeals

4 June 2015.


       Attorney General Roy Cooper, by Assistant Attorney General Kathryne E.
       Hathcock, for the State.

       William D. Spence for defendant-appellant.


       McCULLOUGH, Judge.


       Joseph Velton O’Neal (“defendant”) appeals the denial of his motion to

suppress following the entry of judgment on his guilty plea to impaired driving. For

the following reasons we affirm.

                                   I.     Background

       Shortly after midnight on 4 November 2012, defendant stopped at a checkpoint

conducted by the Brunswick County Sheriff’s Office on River Road in Leland and was
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issued a citation for operating a vehicle on a street or highway while subject to an

impairing substance. A judgment entered in the case on 9 May 2013 in Brunswick

County District Court shows defendant pled guilty to impaired driving with an

alcohol concentration of .09 and appealed to Superior Court. Once in Superior Court,

defendant filed a motion to suppress evidence on the basis that the checkpoint was in

violation of the Constitution of the United States and the Constitution of North

Carolina. Defendant’s motion came on for hearing in Brunswick County Superior

Court before the Honorable Ola M. Lewis on 20 December 2013. Upon hearing

testimony and arguments, the trial court denied defendant’s motion to dismiss,

issuing findings and conclusions. An order memorializing the trial court’s denial of

defendant’s motion to suppress was later filed on 30 December 2013.

      Subsequent to the denial of his motion to suppress, defendant pled guilty to

impaired driving in Brunswick County Superior Court on 23 April 2014 and reserved

his right to appeal the denial of his motion to suppress as part of the plea agreement.

The trial court then entered judgment, imposed a sixty day sentence, and suspended

the sentence on condition that defendant complete twelve months of unsupervised

probation. Defendant was further ordered to pay fines, surrender his driver’s license,

and complete community service. Defendant gave notice of appeal in open court.

                                  II.    Discussion




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       On appeal, defendant contends the trial court erred in denying his motion to

suppress.

              When reviewing a motion to suppress evidence, this Court
              determines whether the trial court's findings of fact are
              supported by competent evidence and whether the findings
              of fact support the conclusions of law. If supported by
              competent evidence, the trial court's findings of fact are
              conclusive on appeal, even if conflicting evidence was also
              introduced.    However, conclusions of law regarding
              admissibility are reviewed de novo.

State v. Wilkerson, 363 N.C. 382, 433-34, 683 S.E.2d 174, 205 (2009) (internal

citations omitted).

       Defendant first argues the trial court erred in concluding the checkpoint was

lawful because there was no evidence, nor a finding of fact, that the Brunswick

County Sheriff’s Office had a written checkpoint policy as required by N.C. Gen. Stat.

§ 20-16.3A(a)(2a). In support of his argument defendant cites State v. White, __ N.C.

App. __, 753 S.E.2d 698 (2014), in which this Court affirmed the trial court’s grant of

the defendant’s motion to suppress on the basis that the Anson County Sheriff’s

Office’s “lack of a written [checkpoint] policy in full force and effect at the time of [the]

defendant’s stop at the checkpoint constituted a substantial violation of [N.C. Gen.

Stat. §] 20-16.3A.” __ N.C. App. at __, 753 S.E.2d at 703.

       N.C. Gen. Stat. § 20-16.3A, which governs checking stations and roadblocks,

provides in pertinent part as follows:

              (a)    A law-enforcement agency may conduct checking
              stations to determine compliance with the provisions of

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             this 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. Gen. Stat. § 20-16.3A (2013).

      In this case, in response to the State’s question about whether the sheriff’s

office has a plan dictating how checkpoints are to be conducted, Sergeant Preston

Nowell, who supervised the checkpoint in question, testified, “[y]es, ma’am, we have

an SOP [(standard operating procedure)].” Sergeant Nowell then testified how the

checkpoint adhered to the SOP. Based on this evidence, the trial court found in

finding of fact number five that, “[t]he checkpoint was in accordance with the

departmental checkpoint policy, created by Sheriff Ingram.”

      While the present case is distinguishable from White in that there is evidence

of a policy governing checkpoints in this case, it is not clear from the evidence or the


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trial court’s findings of fact whether that policy was in writing.       Nevertheless,

evidence of the SOP was offered into evidence and defendant never challenged the

validity of the checkpoint on the basis that there was not a written checkpoint policy

in place. The only issues raised in defendant’s motion to suppress were whether there

was reasonable suspicion or probable cause to stop defendant’s vehicle and whether

the checkpoint violated the constitutions of the United States and North Carolina.

Then at trial, defendant argued the purpose of the checkpoint was general crime

control and the plan for this particular checkpoint was deficient in that there was no

standard for what was to be asked or when the checkpoint would start and end.

Because defendant raises for the first time on appeal the issue of whether the

Brunswick County Sheriff’s Office had a written checkpoint policy as required by N.C.

Gen. Stat. § 20-16.3A(a)(2a), defendant has waived the argument.           See State v.

Anderson, 175 N.C. App. 444, 451-52, 624 S.E.2d 393, 399 (2006) (“As has been said

many times, the law does not permit parties to swap horses between courts in order

to get a better mount, . . . meaning, of course, that a contention not raised and argued

in the trial court may not be raised and argued for the first time in the appellate

court.” (quotation marks and citations omitted)).

      Defendant also argues the trial court erred in denying his motion to suppress

because the checkpoint was unconstitutional and, therefore, his seizure at the

checkpoint was unlawful.



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      The stopping of a vehicle at a checkpoint effectuates a seizure and, therefore,

is subject to constitutional challenges. State v. Jarrett, 203 N.C. App. 675, 677, 692

S.E.2d 420, 423, disc. review denied, 364 N.C. 438, 702 S.E.2d 501 (2010). In North

Carolina, it is well established that

             “[w]hen considering a challenge to a checkpoint, the
             reviewing court must 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.”

Id. (quoting State v. Veazey, 191 N.C. App. 181, 185-86, 662 S.E.2d 683, 686-87 (2008))

(ellipses and brackets omitted).

      Concerning the primary programmatic purpose of a checkpoint, in State v.

Veazey, this Court explained as follows:

             In [City of Indianapolis v. Edmond, 531 U.S. 32, 148 L. Ed.
             2d 333 (2000)], the United States Supreme Court
             distinguished between checkpoints with a primary purpose
             related to roadway safety and checkpoints with a primary
             purpose related to general crime control. According to the
             Court, checkpoints primarily aimed at addressing
             immediate highway safety threats can justify the
             intrusions on drivers' Fourth Amendment privacy interests
             occasioned by suspicionless stops. However, the Edmond
             Court also held that police must have individualized
             suspicion to detain a vehicle for general crime control
             purposes, and therefore a checkpoint with a primary
             purpose of general crime control contravenes the Fourth
             Amendment.


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             The Supreme Court in Edmond also noted that a
             checkpoint with an invalid primary purpose, such as
             checking for illegal narcotics, cannot be saved by adding a
             lawful secondary purpose to the checkpoint, such as
             checking for intoxicated drivers. Otherwise, according to
             the Court, law enforcement authorities would be able to
             establish checkpoints for virtually any purpose so long as
             they also included a license or sobriety check. For this
             reason, courts must examine the available evidence to
             determine the primary purpose of the checkpoint program.

191 N.C. App. at 185, 662 S.E.2d at 686 (internal citations, quotation marks, and

brackets omitted).

             Our Court has previously held that where there is no
             evidence in the record to contradict the State's proffered
             purpose for a checkpoint, a trial court may rely on the
             testifying police officer's assertion of a legitimate primary
             purpose. However, where there is evidence in the record
             that could support a finding of either a lawful or unlawful
             purpose, a trial court cannot rely solely on an officer's bare
             statements as to a checkpoint's purpose. In such cases, the
             trial court may not simply accept the State's invocation of
             a proper purpose, but instead must carry out a close review
             of the scheme at issue. This type of searching inquiry is
             necessary to ensure that an illegal multi-purpose
             checkpoint is not made legal by the simple device of
             assigning the primary purpose to one objective instead of
             the other.

Id. at 187, 662 S.E.2d at 687-88 (internal citations, quotation marks, and brackets

omitted).

      If the primary programmatic purpose of the checkpoint is found lawful, the

trial court must then determine in part two of the analysis whether the checkpoint

itself was reasonable on the basis of the individual circumstances. State v. Gabriel,


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192 N.C. App. 517, 522, 665 S.E.2d 581, 586 (2008) (citing State v. Rose, 170 N.C.

App. 284, 293, 612 S.E.2d 336, 342 (2005)). “To determine whether a seizure at a

checkpoint is reasonable requires a balancing of the public's interest and an

individual's privacy interest.” Rose, 170 N.C. App. at 293, 612 S.E.2d at 342.

             When conducting this balancing inquiry the court should
             examine: (1) the gravity of the public concern 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. If these factors weigh in favor of the
             public interest, the checkpoint is reasonable and
             constitutional.

Gabriel, 192 N.C. App. at 522-23, 665 S.E.2d at 586 (internal quotation marks,

citations, and brackets omitted).

      In this case, defendant argues the trial court’s findings of fact do not support

the trial court’s second conclusion that “[t]he primary programmatic purpose [of the

checkpoint] was to check for Chapter twenty violations.” In support of his argument,

defendant points to findings of fact six and ten, which provide as follows:

             6.     If vehicles were stopped that had passengers,
             officers would sometimes ask for their names to see if they
             had outstanding warrants.

             ....

             10.   The Defendant was then asked if he had any drugs
             or paraphernalia. The Defendant was also asked if he had
             consumed any alcohol, where he was going and from where
             he was coming.




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Based on these findings, defendant asserts the primary purpose of the checkpoint was

general crime control and any objective relating to highway safety was secondary.

      Upon review of the evidence, findings, and conclusions, we hold the trial court

did not err in determining the primary programmatic purpose of the checkpoint. In

addition to findings six and ten, the trial court issued the following findings:

             3.     The checkpoint was to check for Chapter twenty
             violations.

             ....

             9.    As the Defendant reached the checkpoint, he was
             asked to stop his vehicle and produce his license.

             ....

             11.   The questions the Defendant was asked are routine
             and investigatory and are not unusual.

These unchallenged findings, which are supported by testimony at the suppression

hearing, support the trial court’s conclusion that the primary programmatic purpose

of the checkpoint was “to check for Chapter twenty violations.” In fact, these findings,

when considered in conjunction with the findings identified by defendant,

demonstrate that the trial court considered all the evidence and undertook a

“searching inquiry” envisioned in Veazey to determine the primary programmatic

purpose when there is conflicting evidence.          As the trial court noted at the

suppression hearing, it cannot base its decision on hypotheticals.




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                                 Opinion of the Court



      We hold the trial court did not err in determining the primary programmatic

purpose of checking for Chapter twenty violations was lawful. Although this Court

noted in Veazey that “it is unclear whether a primary purpose of finding any and all

motor vehicle violations is a lawful primary purpose[,]” 191 N.C. App. at 189, 662

S.E.2d at 689 (emphasis in original), defendant has not directed this Court to any

cases holding that checking for Chapter twenty violations is an unlawful purpose.

Given that checkpoints to verify drivers’ licenses and vehicle registrations and

sobriety checkpoints have been determined lawful, see Rose, 170 N.C. App. at 288,

612 S.E.2d at 339, we hold the trial court did not err in determining the checkpoint

for Chapter twenty violations was lawful.

      Furthermore, although defendant limits his argument on appeal to contesting

the trial court’s determination of the primary programmatic purpose, we note that

the following findings by the trial court concerning the reasonableness of the

checkpoint support its determination that “[t]he checkpoint was indeed lawful[:]”

            12.   Pursuant to the statutes and case law, the Court
            balanced the public’s concern against the seizure using a
            three prong test as is required.

            13.    The public concern with regards to Chapter twenty
            violations and traffic on NC-133 (“River Road”) certainly
            outweigh the brief seizure of the Defendant.

            14.   The seizure did indeed advance the public interest
            and the safety of the community.

            15.    The severity of the interference on the individual’s


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             liberties was minimal.

      As a result, we hold the trial court did not err in denying defendant’s motion

to suppress. The checkpoint did not violate defendant’s constitutional rights.

                                  III.   Conclusion

      For the reasons discussed above, we affirm the order of the trial court denying

defendant’s motion to suppress.

      AFFIRMED.

      Judges STROUD and INMAN concur.

      Report per Rule 30(e).




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