                               NO. COA13-494

                   NORTH CAROLINA COURT OF APPEALS

                         Filed:    4 February 2014

STATE OF NORTH CAROLINA


     v.                                 Anson County
                                        No. 09 CRS 1939
GARRY WHITE


    Appeal by the State from order entered 16 January 2013 by

Judge Tanya T. Wallace in Anson County Superior Court.    Heard in

the Court of Appeals 23 October 2013.


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

    Appellate Defender Staples S. Hughes, by Assistant Appellate
    Defender Andrew DeSimone, for defendant-appellee.


    McCULLOUGH, Judge.


    The State appeals from an order granting defendant’s motion

to suppress evidence obtained during a checkpoint stop.    For the

reasons set forth below, we affirm.

                          I.      Background


    On 11 September 2009, defendant Garry Anthony White was

arrested and charged with one count of driving while impaired in
                               -2-
violation of N.C. Gen. Stat. § 20-138.1 and one count of driving

while license revoked in violation of N.C. Gen. Stat. § 20-28.

     On 17 October 2011, defendant was convicted in Anson County

District Court of driving while impaired and given a six (6) month

active sentence.    Defendant was also convicted of driving while

license revoked and given an active sentence of forty-five (45)

days.    Defendant appealed the judgments to Anson County Superior

Court.

     On 12 April 2010, defendant filed a motion to suppress

evidence alleging the following:

            1. That on or about September 11, 2009, a blue
               GMC Sonoma was stopped at a checkpoint on
               High Street in Polkton, North Carolina, by
               officers with the Anson County Sheriff’s
               Department.

            2. There   was    no  reasonable   articulable
               suspicion to stop the afore-mentioned
               vehicle. The stop of the afore-mentioned
               vehicle was made without probable cause and
               was an unreasonable seizure in violation of
               the Constitution of the United States of
               America     and   the     North    Carolina
               Constitution.

            3. The stop was in contravention of the
               statutory policy on checking stations and
               roadblocks set out in G.S. 20-16.3(A).

     A hearing on defendant’s motion to suppress was held on 10

September   2012.    J.R.   Horne   (“Horne”)   testified   that   on   11

September 2009, he was serving as a traffic supervisor for the
                               -3-
Anson County Sheriff’s Office and was asked to operate a checking

station in Polkton, North Carolina.    Horne testified that at that

time, the Anson County Sheriff’s Department did not have a written

policy regarding checking stations, but instead, had an oral

policy.1

       The checking station was designated to be a license checking

station located at High Street and College Street in Polkton.

Sometime before the checkpoint commenced, Horne wrote a “Traffic

Operational Plan” that provided the following: the checkpoint was

to begin at 7:55 p.m. on 11 September 2009; Deputy Jenkins and

Detective Erdmanczyk would assist Horne in the license checkpoint;

all cars coming through the target area would be checked; officers

would wear their traffic vests when out of their cars; and that

the “Chase Policy” would be in full effect.    Horne testified that

although he was under the assumption that the checkpoint would

conclude around midnight since the stores in Polkton closed around

11:00 p.m., there was no end time indicated in the “Traffic

Operational Plan.”

       Following a briefing held at 7:30 p.m. on 11 September 2009,

the checkpoint began at 7:55 p.m.     All three officers – Horne,

Jenkins, and Erdmanczyk – were present with safety vests on.    The


1The Anson County Sheriff’s Department did not have a written
policy concerning checking stations until 17 February 2012.
                             -4-
officers were checking both northbound and southbound traffic

coming to the checkpoint on High Street, as well as westbound

traffic coming from College Street. During the license checkpoint,

all   three    of     the      officers’   vehicles      had    their    blue    lights

activated.     All vehicles coming through the checking station were

stopped.

      Horne testified that at 8:01 p.m., an individual was arrested

and charged with driving while impaired.                 At 8:24 p.m., Horne left

the     checking      station,     accompanied     by     Officer       Jenkins,    and

transported        the   arrested    individual     to    the    Sheriff’s      Office.

Officer Erdmanczyk stayed at the checking station but did not check

any vehicles until Horne and Jenkins returned at 9:57 p.m.                         From

approximately 8:24 p.m. until 9:57 p.m., no vehicles were checked

at the checkpoint.          At 9:57 p.m., the checkpoint resumed.               At 10:56

p.m.,    defendant       was    stopped    and   arrested      and   the   checkpoint

concluded around 11:20 p.m.

      On 16 January 2013, the trial court entered an order finding

the following in pertinent part:


              1.    The day before the actual driver’s license
                    check point, Corporal Horne was contacted
                    by   Captain   Dunn   of   the   Sheriff’s
                    Department who requested him to operate as
                    a supervisory officer over a checkpoint.

              . . .
                      -5-
3.   On September 11, 2009, the Anson County
     Sheriff’s Department had no written policy
     providing guidelines for motor vehicle law
     checking stations as mandated by G.S. 20-
     16.3A.

. . .

5.   Corporal Horne did complete a written
     checking station plan prior to conducting
     the checkpoint on September 11, 2009. The
     plan provided for a license check after a
     briefing at the Polkton Fire Department to
     commence at 7:55 p.m. at the intersection
     of High Street and College Street which
     called for the officers to wear traffic
     vests, to stop all vehicles coming through
     the checkpoint, to have at least one
     vehicle with its blue lights activated,
     and to operate said checkpoint pursuant to
     an oral policy that was in force at that
     time.

6.   Corporal Horne testified that the reason
     for the checkpoint was because there had
     been complaints by the store owners of
     speeding and reckless operation of motor
     vehicles in this area and that this check
     point was to start at 7:55 p.m. with an
     anticipated conclusion time of 12:00 a.m.,
     since the stores in the area close at
     approximately 11:00 p.m.

7.   Three (3) officers were assigned to this
     checkpoint including the traffic unit
     supervisor Corporal Horne . . . and
     Corporal Horne testified that all officers
     were to wear traffic vests, the blue
     lights on each vehicle were to be
     activated, that all vehicles were to be
     stopped coming through this intersection
     and that the chase policy was to be in
     force at this checkpoint.

. . .
                                 -6-

         9.   The Defendant was stopped at approximately
              10:56 p.m.

         10. Prior to the Defendant being stopped,
             after the checkpoint was established, at
             8:24 p.m., a vehicle was stopped which
             resulted in the arrest of a driver by the
             name of Ab Griffin for DWI and Corporal
             Horne testified that between 8:24 p.m. and
             9:57 p.m. he and Deputy Jenkins left the
             checkpoint to process the arrest but left
             Detective Erdmanczyk at the scene until
             they    returned,    however,    Detective
             Erdmanczyk did not continue with the
             checkpoint or stop any vehicles.

         11. At approximately 9:57 p.m. officers Horne
             and Jenkins returned to the scene of the
             checkpoint and the checkpoint continued
             and the officers followed the same
             procedures in operating the checkpoint as
             were used prior to the suspension at 8:24
             p.m.

         . . .

         13. The Court is unsure of whether or not there
             was   a   suspension    of  the    original
             checkpoint for a period of almost an hour
             and a half or whether this is a new stop
             at 10:56 a.m. with no guidelines or plan
             in place.

The trial court concluded that

         the nature of the stop of the Defendant which
         occurred after the checkpoint had been
         abandoned for a period of approximately an
         hour and a half was in the nature of a
         spontaneous stop. Coupled with the lack of a
         written policy in full force and effect and
         taking into consideration whether a plan was
         reinstituted, or a new plan instituted, upon
         the return of the officers to the checkpoint
                                  -7-
             at 9:27 p.m. mandates a conclusion that there
             was a substantial violation of G.S. 20-16.3A
             and the Court hereby orders that all evidence
             obtained as a result of the stop of the
             Defendant’s vehicle is suppressed.

     From this order, the State appeals.

                           II.   Standard of Review

     “Generally, an appellate court’s review of a trial court’s

order   on    a   motion    to    suppress    is    strictly   limited   to   a

determination of whether its findings are supported by competent

evidence, and in turn, whether the findings support the trial

court’s ultimate conclusion.”          State v. Roberson, 163 N.C. App.

129, 132, 592 S.E.2d 733, 735 (2004) (citation and quotation marks

omitted).     “Where no exception is taken to a finding of fact by

the trial court, the finding is presumed to be supported by

competent evidence and is binding on appeal.”              State v. Taylor,

178 N.C. App. 395, 401, 632 S.E.2d 218, 223 (2006) (citation

omitted).

     “While the trial court’s factual findings are binding if

sustained by the evidence, the court’s conclusions based thereon

are reviewable de novo on appeal.”           State v. Parker, 137 N.C. App.

590, 594, 530 S.E.2d 297, 300 (2000) (citation omitted).

                                 III. Discussion

     The State argues that the trial court erred in granting

defendant’s motion to suppress where:              (A) finding of fact 13 is
                            -8-
not supported by the evidence; (B) there was no substantial

violation of N.C. Gen. Stat. § 20-16.3A; and (C) no constitutional

violation or violation of Chapter 15A of the North Carolina General

Statutes was found.    Because arguments (A) and (B) are closely

related, we will address them together.

                  A.   Finding of Fact Number 13
                                and
                  B.   N.C. Gen. Stat. § 20-16.3A

     First, the State argues that finding of fact number 13 is not

supported by the evidence and thus, does not support the trial

court’s conclusion of law number 5.

     The trial court noted in finding of fact number 13 that:

          13. The Court is unsure of whether or not there
              was   a   suspension    of  the    original
              checkpoint for a period of almost an hour
              and a half or whether this is a new stop
              at 10:56 a.m. with no guidelines or plan
              in place.

It also concluded in conclusion of law number 5 that:

          5.   That the nature of the stop of the
               Defendant   which   occurred   after   the
               checkpoint had been abandoned for a period
               of approximately an hour and a half was in
               the nature of a spontaneous stop. Coupled
               with the lack of a written policy in full
               force   and   effect   and   taking   into
               consideration    whether   a    plan   was
               reinstituted, or a new plan instituted,
               upon the return of the officers to the
               checkpoint at 9:27 p.m. mandates a
               conclusion that there was a substantial
               violation of G.S. 20-16.3A and the Court
                                   -9-
                 hereby orders that all evidence obtained
                 as a result of the stop of the Defendant’s
                 vehicle is suppressed.

      We note that during defendant’s motion to suppress hearing,

there   was    ample     testimony    concerning    the   suspension   of   the

checkpoint for an hour and half, from 8:24 p.m. until 9:57 p.m.

Horne testified that at 8:01 p.m., an individual was arrested and

charged with driving while impaired.           Horne and Jenkins left the

checkpoint from 8:24 p.m. until 9:57 p.m. in order to transport

this individual to the Sheriff’s Office.              Horne made a decision

that during the time period that he and Jenkins were absent from

the   checkpoint,      “the   checkpoint    would    stop[.]”     Erdmanczyk

remained at the checkpoint, but did not check any vehicles or

licenses during this time at the direction of Horne. The following

exchange occurred at defendant’s hearing:

              [Defense Counsel:] We have a checking station
              that was basically – not due to your fault but
              the fault of, I guess, the driver who
              allegedly offended the law – that was
              abandoned by you for almost an hour and a half,
              where vehicles were free to come and go
              without being checked; is that correct?

              [Horne:]    Yes, sir.

In addition, evidence established that defendant was stopped at

the checkpoint at 10:56 p.m.          Based on the foregoing, we hold that

there was sufficient competent evidence to support the trial

court’s finding of fact 13 and overrule the State’s argument.
                                    -10-
     Even assuming        arguendo that finding       of fact 13 was not

supported by the evidence, the State’s argument that the trial

court erred by making conclusion of law number 5 is without merit.

The remaining unchallenged findings of fact, which are binding on

appeal, support the trial court’s ultimate conclusion that there

was a substantial violation of section 20-16.3A of the North

Carolina General Statutes.

     We call attention to unchallenged finding of fact 3, which

provides the following:

            On September 11, 2009, the Anson County
            Sheriff’s Department had no written policy
            providing guidelines for motor vehicle law
            checking stations as mandated by G.S. 20-
            16.3A.

 “When    findings      that   are   unchallenged,   or   are   supported   by

competent evidence, are sufficient to support the judgment, the

judgment will not be disturbed because another finding, which does

not affect the conclusion, is not supported by evidence.”             Dawson

Industries, Inc. v. Godley Constr. Co., 29 N.C. App. 270, 275, 224

S.E.2d 266, 269 (1976) (citation omitted).

     Section 20-16.3A of the North Carolina General Statutes,

which    sets   forth    the   requirements   for    checking   stations    and

roadblocks, provides that:

            (a)   A law-enforcement agency may conduct
                  checking    stations   to     determine
                  compliance with the provisions of this
                              -11-
              Chapter. If the agency is conducting a
              checking station for the purposes of
              determining    compliance  with   this
              Chapter, it must:

         . . .

              (2a) Operate under a written policy that
                   provides    guidelines    for    the
                   pattern, which need not be in
                   writing. The policy may be either
                   the agency’s own policy, or if the
                   agency does not have a written
                   policy, it may be the policy of
                   another law enforcement agency, and
                   may include contingency provisions
                   for altering either pattern if
                   actual   traffic    conditions   are
                   different from those anticipated,
                   but no individual officer may be
                   given discretion as to which vehicle
                   is stopped or, of the vehicles
                   stopped, which driver is requested
                   to    produce    drivers    license,
                   registration,      or      insurance
                   information. If officers of a law
                   enforcement agency are operating
                   under another agency’s policy, it
                   must be stated in writing.

N.C.G.S. § 20-16.3A(a)(2a) (2013) (emphasis added).

    It is well established that

         [t]he   paramount   objective   of   statutory
         interpretation is to give effect to the intent
         of the legislature. The primary indicator of
         legislative intent is statutory language; the
         judiciary must give clear and unambiguous
         language its plain and definite meaning.
         Where the language of a statute is clear and
         unambiguous there is no room for judicial
         construction and the courts must give it its
         plain and definite meaning[.]
                             -12-
State v. Largent, 197 N.C. App. 614, 617, 677 S.E.2d 514, 517

(2009) (citations and quotation marks omitted).

     We   observe   that   the   language   used   in   N.C.G.S.   §   20-

16.3A(a)(2a) is mandatory – “If the agency is conducting a checking

station . . ., it must [o]perate under a written policy[.]”

(emphasis added).   See State v. Inman, 174 N.C. App. 567, 570, 621

S.E.2d 306, 309 (2005) (noting that the word “must” in a statute

is ordinarily “deemed to indicate a legislative intent to make the

provision of the statute mandatory, and a failure to observe it

fatal to the validity of the purported action”).

     In light of the mandatory language contained within N.C.G.S.

§ 20-16.3A, we conclude that the trial court did not err by

concluding that a lack of a written policy in full force and effect

at the time of defendant’s stop at the checkpoint constituted a

substantial violation of section 20-16.3A.

    C.    Constitutional Violation or Violation of Chapter 15A

     Next, the State argues that “evidence must only be suppressed

if there is a Constitutional violation or a substantial violation

of the provisions of Chapter 15A. . . . Provisions outside of

chapter 15A do not require suppression.”       The State asserts that

even assuming arguendo that a violation of N.C. Gen. Stat. § 20-
                              -13-
16.3A occurred2, the trial court should not have suppressed the

evidence obtained at defendant’s stop, and doing so amounted to

error.     We disagree.

       The State relies on section 15A-974 of the North Carolina

General Statutes, titled “Exclusion or suppression of unlawfully

obtained evidence,” for its contention.             N.C. Gen. Stat. § 15A-

974 states that evidence must be suppressed if “(1) Its exclusion

is required by the Constitution of the United States or the

Constitution of the State of North Carolina; or (2) It is obtained

as a result of a substantial violation of the provisions of

[Chapter 15A (Criminal Procedure Act).]”           N.C.G.S. § 15A-974(a)(1)

– (2) (2013).

       In response to the State’s arguments, defendant directs our

attention to subsection (d) of N.C.G.S. § 20-16.3A.              In subsection

(d),     the   General    Assembly   provided    that   “[t]he   placement   of

checkpoints      should    be   random   or   statistically   indicated,     and

agencies shall avoid placing checkpoints repeatedly in the same

location or proximity.”         N.C.G.S. § 20-16.3A(d) (2013).       Notably,

the General Assembly further provided that “[t]his subsection




2Here,  the trial court did not reach the question of the
constitutionality of the checkpoint and instead, rested its
analysis on the State’s violation of section 20-16.3A of the North
Carolina General Statues as previously discussed.
                               -14-
shall not be grounds for a motion to suppress or a defense to any

offense arising out of the operation of a checking station.”          Id.

(emphasis added).

     A “well-known canon of statutory construction [is] expressio

unius est exclusio alterius:        the expression of one thing is the

exclusion of another.”      State v. Dewalt, 209 N.C. App. 187, 191-

92, 703 S.E.2d 872, 875 (2011) (citation omitted).         Applying this

principle to the case at hand, we hold that because the General

Assembly specifically included language in subsection (d) that it

shall not be a basis for a motion to suppress, meanwhile excluding

the same language in subsection (a)(2a), subsection (a)(2a) is a

proper basis for a motion to suppress.

     Furthermore, our Court has held that a violation of another

section of Chapter 20 is an appropriate basis for a motion to

suppress,   despite   the    lack    of    express   statutory   language

authorizing suppression.      For example, in State v. Buckheit, __

N.C. App. __, __, 735 S.E.2d 345, 347 (2012), our Court reversed

a trial court’s denial of the defendant’s motion to suppress

evidence obtained in the violation of section 20-16.2(a) of the

North Carolina General Statutes.          See also State v. Hatley, 190

N.C. App. 639, 661 S.E.2d 43 (2008) (holding that because the State

violated N.C. Gen. Stat. § 20-16.2(a), the trial court should have
                               -15-
granted the defendant’s motion to suppress evidence obtained from

that violation).

    Based on the foregoing analysis, we hold that the trial court

did not err by granting defendant’s motion to suppress and affirm

the order of the trial court.

    Affirmed.

    Judges DAVIS and ELMORE concur.
