An unpublished opinion of the North Carolina Court of Appeals does not constitute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.



                                NO. COA13-702
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 15 April 2014


STATE OF NORTH CAROLINA

      v.                                       Burke County
                                               No. 11 CRS 52086
SCOTT WESLEY FARRIS,
          Defendant.


      Appeal by defendant from judgment entered 4 December 2012

by Judge Nathaniel J. Poovey in Burke County Superior Court.

Heard in the Court of Appeals 21 November 2013.


      Attorney General Roy Cooper, by Assistant Attorney General
      Carrie D. Randa, for the State.

      Wayne O. Clontz for defendant-appellant.


      GEER, Judge.


      Defendant Scott Wesley Farris appeals from his conviction

of driving while impaired.              On appeal, defendant contends that

the trial court erred in denying his motion to suppress evidence

obtained during a checkpoint stop.             He primarily argues that the

checkpoint was unreasonable because, according to defendant, at

least   one    vehicle    was    able    to   drive   through     the   checkpoint

without    being    stopped.       Because,     however,    the    trial   court's
                                         -2-
findings are supported by competent evidence and those findings

support   the    court's      conclusion      that    the    primary      programmatic

purpose of the checkpoint was proper and                       the checkpoint was

reasonable, we hold that the trial court did not err in denying

defendant's motion to suppress.

                                        Facts

      The State's evidence tended to show the following facts.

Beginning around 9:00 p.m. on the evening of 14 July 2011, five

members of the North Carolina State Highway Patrol conducted a

checkpoint      on   the    I-40   Westbound         off-ramp      at    exit    103    in

Morganton, North Carolina.              Three Highway Patrol vehicles were

parked at the intersection at the top of the ramp and had their

flashing blue lights on to alert motorists of the checkpoint.

The stoplights at the intersection at the end of the off-ramp

and the flashing lights of the police cars were not, however,

visible to drivers when they first entered the off-ramp due to a

slight curve in the ramp.

      Sergeant Mark Cline, the supervisor on scene, had chosen

the time and location of the checkpoint.                          The checkpoint was

conducted within the written guidelines of the Highway Patrol

and   also   complied       with   a    standing       order      from   the     captain

requiring    that    a     supervisor    be    on    site    at    all   times    during

nighttime    checkpoints.              Each    car    that        came   through       the
                                           -3-
checkpoint        was   required     to    show     a    valid        driver's       license,

registration, and proof of insurance.                    The officers did not have

any discretion as to which vehicles they stopped, but rather all

cars were supposed to be stopped.

       Around 9:45 p.m., defendant approached the checkpoint in a

Ford       Ranger     pickup    truck.      Trooper        Jason       Goudelock        asked

defendant        for    his     driver's     license       and        registration       and

immediately smelled a strong odor of alcohol coming from the

vehicle.         He also noticed that defendant's eyes were glassy.

Trooper Goudelock asked defendant to turn off the engine and

step       out   of   the   truck.       After     observing      defendant,          Trooper

Goudelock formed the opinion that defendant was impaired, and he

arrested defendant for driving while impaired.

       On 5 June 2012, the district court found defendant guilty

of impaired driving.            Defendant appealed to superior court, and,

at     a    pretrial      hearing,   defendant          made     an    oral    motion     to

suppress.           Although,    contrary     to    N.C.       Gen.    Stat.     §    15A-977

(2011), defendant did not file a written motion to suppress, the

State did not object to proceeding with a hearing on the merits.

After hearing the testimony of Trooper Goudelock and defendant,

the    trial      court     orally   denied       the    motion        to   suppress      and

dictated its findings of fact and conclusions of law into the

record.
                                           -4-
    Following        the    denial    of    his       motion,    defendant   pled   no

contest to the charge of driving while impaired.                       Defendant was

sentenced    to    an   active     term    of    60    days     imprisonment.   That

sentence was suspended, and defendant was placed on 18 months of

supervised probation.         Defendant timely appealed to this Court.

                                     Discussion

    Defendant's sole argument on appeal is that the trial court

erred in denying his motion to suppress.                      Our review of a trial

court's denial of a motion to suppress 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).     "The trial court's conclusions of law . . . are fully

reviewable on appeal."            State v. Hughes, 353 N.C. 200, 208, 539

S.E.2d 625, 631 (2000).

    Defendant contends that the trial court should have granted

his motion to suppress because the checkpoint constituted an

unconstitutional        seizure.          "'[P]olice      officers     effectuate    a

seizure when they stop a vehicle at a checkpoint.                       As with all

seizures, checkpoints conform with the Fourth Amendment only if

they are reasonable.'"             State v. Jarrett, 203 N.C. App. 675,
                                           -5-
677, 692 S.E.2d 420, 423 (2010) (quoting State v. Rose, 170 N.C.

App. 284, 288, 612 S.E.2d 336, 339 (2005)).                            "Thus, 'police may

briefly       detain    vehicles     at    a     roadblock         checkpoint         without

individualized         suspicion,     so       long     as       the     purpose      of    the

checkpoint       is     legitimate        and     the        checkpoint         itself          is

reasonable.'"          Id. (quoting State v. Veazey, 191 N.C. App. 181,

184, 662 S.E.2d 683, 686 (2008)).

       With    respect     to    review    of     the    constitutionality                 of   a

checkpoint, this Court has held:

              "When   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 Veazey, 191 N.C. App. at 185-86, 662 S.E.2d at 686-

87).      Defendant contends that the trial court erred both in

concluding       that     the     officers        had        a     legitimate         primary

programmatic purpose and that the checkpoint was reasonable.

       Defendant argues generally that "it was never established"

that   the     primary    programmatic         purpose       of    the    checkpoint         was

proper.        Given    the     finding    by    the    trial          court   that    "[t]he
                                         -6-
purpose    for    the     license      checkpoint   was     to    check    driver's

license, registration, and proof of insurance[,]" it is unclear

whether defendant is arguing that this finding is not supported

by competent evidence in the record or that this finding is

insufficient to establish that this purpose was also "primary,"

"programmatic," and "proper."             With regard to whether the trial

court's finding is supported by the evidence in the record,

defendant does not point to any contrary evidence or make any

specific   argument       that   the    trial   court     erred   in   making   the

finding.    Based on our review of the record, we find that the

trial court's finding regarding the purpose of the checkpoint is

supported by competent evidence.

    As for whether the purpose found by the trial court is

proper, courts have recognized as constitutionally permissible

checkpoints for the purpose of checking drivers' licenses, proof

of insurance, and vehicle registration.                 See, e.g., Delaware v.

Prouse, 440 U.S. 648, 663, 59 L. Ed. 2d 660, 673-74, 99 S. Ct.

1391,   1401     (1979)    (indicating      that    checkpoint      with    primary

purpose of checking drivers' licenses and vehicle registrations

would be permissible under the Fourth Amendment); United States

v. Brugal, 209 F.3d 353, 357 (4th Cir. 2000) (holding that "a

brief stop at a checkpoint for the limited purpose of verifying

a driver's license, vehicle registration, and proof of insurance
                                             -7-
is a reasonable intrusion into the lives of motorists and their

passengers even in the absence of reasonable suspicion that a

motorist or passenger is engaged in illegal activity"); State v.

Mitchell, 358 N.C. 63, 66, 592 S.E.2d 543, 545 (2004) (driver's

license checkpoint held constitutional); State v. Tarlton, 146

N.C.   App.     417,    423,     553    S.E.2d      50,     53   (2001)      (license      and

registration checkpoint held constitutional).

       Thus,    we    conclude     that      the    trial    court     did    not    err    in

finding that there was a proper programmatic purpose for the

checkpoint.          However, even if a trial court concludes that the

primary programmatic purpose was lawful, the court "must still

determine      'whether     the        checkpoint        itself      was     reasonable.'"

Jarrett,     203     N.C.   App.       at   679,    692     S.E.2d    at     424    (quoting

Veazey, 191 N.C. App. at 191, 662 S.E.2d at 689–90).                           This Court

balances      the     public's     interest        and    the    individual's       privacy

interest by applying the three-prong test set out in Brown v.

Texas, 443 U.S. 47, 50, 61 L. Ed. 2d 357, 361, 99 S. Ct. 2637,

2640 (1979).          "Under Brown, the trial court must consider '[1]

the gravity of the public concerns served by the seizure[;] [2]

the degree to which the seizure advances the public interest[;]

and    [3]     the    severity     of       the    interference        with    individual

liberty.'"          Jarrett, 203 N.C. App. at 679, 692 S.E.2d at 425

(quoting Rose, 170 N.C. App. at 293-94, 612 S.E.2d at 342).
                                           -8-
       Defendant argues that the stop was not reasonable because

there was a factual dispute regarding whether every vehicle was,

in fact, stopped.1            The trial court found (1) that the checkpoint

complied with the Highway Patrol's written policy for conducting

checkpoints, (2) the checkpoint complied with the pre-designated

pattern of stopping every vehicle, and (3) "[t]he officers did

not    have      any    discretion    .   .   .    as    to    which    vehicle      they

stopped[.]"

       Trooper        Goudelock's    testimony     amply      supported       the   trial

court's findings.             Although defendant testified that while he

was stopped at the checkpoint, he witnessed one car that went

through the checkpoint without being stopped, he also testified

that       he   had    been   drinking    that    evening     and    that     his   blood

alcohol level was .14.              As the trier of fact, the trial judge

was free to weigh the credibility of the witnesses and chose to

believe Trooper Goudelock over defendant.                       It     is beyond the

scope of our review to revisit the trial court's credibility

determinations.

       Even      assuming      arguendo    that    one   car    was     not    stopped,

defendant, citing only generally to this Court's decision in

Rose, does not point to any authority suggesting that if one car
       1
      Defendant does not articulate how this argument fits into
the Brown analysis or allege that the trial court made
insufficient findings regarding any of the three prongs of
Brown.
                                          -9-
is   not   stopped     according     to   the       pre-designated       pattern,    the

checkpoint is invalid.           Nor does defendant point to any evidence

showing    that      the   car   passed   as    a    result   of    a    discretionary

decision of any of the officers to allow the car to pass.                            Even

if such evidence existed, officer discretion, as only one of

many factors to consider, "is not a 'lynchpin,' but instead is a

circumstance to be considered as part of the totality of the

circumstances in examining the reasonableness of a checkpoint."

Rose, 170 N.C. App. at 298, 612 S.E.2d at 345.                      The possibility

that    one    car     was   able    to    sneak      past    the       checkpoint    is

insufficient to undermine the trial court's finding that the

officers did not have discretion in deciding which car to stop,

much   less    render      the   entire   checkpoint          unreasonable.          See

Tarlton, 146 N.C. App. at 421, 553 S.E.2d at 53 (concluding

checkpoint reasonable based in part upon trial court's finding

that officers "'checked every vehicle in both directions except

when they were writing citations'" (emphasis added)).

       In conclusion, we hold that there is competent evidence to

support the trial court's finding that all the vehicles were

stopped.      We also hold that, regardless whether one car did, in

fact, pass through the checkpoint without being stopped, there

is competent evidence to support the trial court's finding that

the officers did not have discretion in deciding which vehicles
                              -10-
were stopped.   This finding, in turn, supports the trial court's

conclusion that the checkpoint was constitutional.


    No error.

    Judges STEPHENS and ERVIN concur.

    Report per Rule 30(e).
