                             NO. COA13-873

                  NORTH CAROLINA COURT OF APPEALS

                          Filed: 18 March 2014


STATE OF NORTH CAROLINA


    v.                                Swain County
                                      No. 10 CRS 277
STEVEN CLARK KOSTICK,
     Defendant.


    Appeal by defendant from judgment entered 22 February 2013

by Judge James U. Downs in Swain County Superior Court.           Heard

in the Court of Appeals 11 December 2013.


    Attorney General Roy Cooper, by Special Deputy Attorney
    General Neil Dalton and Assistant Attorney General Kathryne
    E. Hathcock, for the State.

    McLean Law Firm, P.A.,       by   Russell   L.   McLean,   III,   for
    defendant-appellant.


    BRYANT, Judge.


    Pursuant to the Tribal Code of the Eastern Band of the

Cherokee Indians and mutual compact agreements between the Tribe

and other law enforcement agencies, the North Carolina Highway

Patrol has authority to patrol and enforce the motor vehicle

laws of North Carolina within the Qualla boundary of the Tribe,

including authority to arrest non-Indians who commit criminal
                                            -2-
offenses on the Cherokee reservation.                        Our State courts have

jurisdiction over the criminal offense of driving while impaired

committed by a non-Indian, even where the offense and subsequent

arrest     occur    within       the    Qualla        boundary     of    the    Cherokee

reservation.       A defendant’s Knoll motion is properly dismissed

where the magistrate follows N.C. Gen. Stat. § 15A-511(b) and

any deviation from the statutory requirements is not prejudicial

to defendant.

    On 24 April 2010, the Cherokee Harley Davidson Rally (the

“rally”)     was    held     at     the     fairgrounds       in    Cherokee,      North

Carolina. As part of a cooperative agreement between the Eastern

Band of the        Cherokee      Indians (the         “Tribe”) and       Swain County

police departments and the North Carolina State Highway Patrol

(“State Highway Patrol”), Swain County and State Highway Patrol

officers assisted the Cherokee police officers in patrolling the

rally, setting up and administering checkpoints, and providing

assistance as needed. Checkpoints were established at the roads

leading    into    and     out    of    the    fairgrounds,        Drama       Road/State

Highway    1361     and     State      Highway    441,       and   were     run    by    a

combination of Cherokee and Swain County police officers.                               The

checkpoints    were       intended     to     check    all    vehicles     leaving      the
                                         -3-
rally   for   potential      driving     while      impaired       (“DWI”),    driver’s

license, insurance, and unsafe driving violations.

     That evening at around 10:00 p.m., defendant Steven Clark

Kostick   (“defendant”)          left    the        rally’s        parking     lot   and

encountered a checkpoint on Drama Road.                     After rolling two car

lengths past Cherokee Officer Dustin Wright who signaled for

defendant to stop, defendant stopped his vehicle.                            As Officer

Wright approached the vehicle, he immediately noticed an odor of

alcohol   and    saw   two     open   cans     of   beer     in    the    car’s   center

console cup holders.           Officer Wright also noticed that a woman

sitting in the front passenger seat of the vehicle was crying.

Officer Wright directed defendant to return his vehicle to the

parking lot and called for an available officer to come and

conduct an investigation of defendant.

     The responding officer was State Highway Patrol Trooper Jim

Hipp who took over the investigation of defendant at the request

of Officer Wright.           After noticing that defendant smelled of

alcohol, had red, glassy eyes, slurred speech, and an unsteady

gait,   Trooper    Hipp      conducted    four       field    sobriety       tests   and

concluded that defendant was likely intoxicated.                         Defendant told

Trooper   Hipp    that    he    had   consumed       four     to    five     beers   that

evening, and then admitted to having a handgun in his truck.
                                            -4-
The woman in defendant’s car was driven by another officer back

to the vacation cabin where she was staying with defendant.

       Trooper       Hipp    arrested       defendant    on     suspicion    of     DWI.

Defendant was taken to the Swain County jail where he blew a

0.15    on    a    Breathalyzer     test.         Defendant    was   arraigned      by    a

magistrate after being charged with DWI and was ordered to be

held on a $500.00 secured bond.                Defendant was released from the

Swain County jail around 4 a.m. on 25 April 2010 after posting

bail.

       On 24 November 2011, defendant filed handwritten motions to

suppress (entitled “Motion to Suppress Stop and Arrest;” “Motion

to Suppress”).            On 2 December 2011, defendant filed a motion to

dismiss alleging lack of jurisdiction over defendant’s arrest.

The trial court denied all of defendant’s motions, and on 6

April 2011, defendant was convicted of DWI in District Court.

Defendant appealed his conviction to the Superior Court.

       On 8 December 2011, defendant filed a new motion to dismiss

alleging that the State Highway Patrol had no arrest authority

within       the    Cherokee     reservation       and   that    defendant    was        on

Cherokee, rather than State, property at the time of his arrest.

Defendant further moved to suppress the evidence regarding the

checkpoint         stop    and   made   a   Knoll     motion    alleging     that    the
                                            -5-
magistrate did not properly inform defendant of his right to

contact counsel and friends upon his arrest.                          At a pretrial

hearing on 20—21 February 2013, defendant’s motions were denied.

On   22    February     2013,    a     jury       convicted    defendant    of     DWI.

Defendant appeals.

                         _______________________________

     On    appeal,      defendant      challenges      (I)     the   subject     matter

jurisdiction of the trial court, including whether the road on

which defendant was stopped was a North Carolina state road,

whether the North Carolina Highway Patrol had arrest authority,

and whether the trial court erred in denying defendant’s pre-

trial     motion   to   dismiss       the    DWI    charges;     (II)   whether     the

roadblock      set-up     by    the     Cherokee        Police       Department    was

constitutional; and (III) the trial court’s failure to grant

defendant’s Knoll motion to dismiss the DWI citation.

                                     Motion to Dismiss

     On 2 October 2013, the State filed a motion to dismiss

defendant’s appeal, arguing that defendant failed to properly

preserve his appeal.           Specifically, the State contends that the

record on appeal is insufficient because defendant failed to

include    a   complete    trial      transcript       to     show   that   defendant

properly renewed his pretrial objections at trial as to subject
                                     -6-
matter jurisdiction, suppression of evidence from the checkpoint

and a Knoll violation, and that without proof that defendant did

renew his objections at trial, those objections cannot be deemed

to   be   preserved   on   appeal.    Defendant,   on   the   other   hand,

counters that he “has preserved each and every issue on appeal.”

      Pursuant to our Rules of Appellate Procedure, “[t]he record

on appeal in criminal actions shall contain . . . so much of the

litigation, set out in the form provided in Rule 9(c)(l), as is

necessary for an understanding of all issues presented on appeal

. . . .”    N.C. R. App. P. 9(a)(3)(e) (2013).

            In order to preserve an issue for appellate
            review, a party must have presented to the
            trial court a timely request, objection, or
            motion, stating the specific grounds for the
            ruling the party desired the court to make
            if the specific grounds were not apparent
            from the context. It is also necessary for
            the complaining party to obtain a ruling
            upon the party’s request, objection, or
            motion.   Any such issue that was properly
            preserved for review by action of counsel
            taken during the course of proceedings in
            the trial tribunal by objection noted or
            which by rule or law was deemed preserved or
            taken without any such action, including,
            but not limited to, whether the judgment is
            supported by the verdict or by the findings
            of fact and conclusions of law, whether the
            court had jurisdiction over the subject
            matter, and whether a criminal charge is
            sufficient in law, may be made the basis of
            an issue presented on appeal.
                                       -7-
N.C. R. App. P. 10(a)(1) (2013).                Where a defendant does not

preserve    an    issue   for   appeal,      that   issue    may   only   then    be

appealed by claiming plain error pursuant to N.C. R. App. P.

10(a)(4).        State v. Waring, 364 N.C. 443, 467—68, 701 S.E.2d

615, 631—32 (2010).

    The     State    contends       that     defendant’s     appeal     should    be

dismissed in its entirety because by not providing a complete

trial transcript the record on appeal is insufficient.                     At the

pretrial hearing, defendant raised three motions: a motion to

dismiss for lack of subject matter jurisdiction; a motion to

suppress evidence from the checkpoint; and a Knoll motion.

A. Defendant’s motion to dismiss for lack of subject matter

jurisdiction

    Defendant       provided    a    trial    transcript     for   the    pretrial

hearing     of    20—21   February     2013     but    did   not      provide    the

transcript for his jury trial on 22 February 2013.                     However, a

determination of subject matter jurisdiction does not require

the presence of a complete trial transcript, as “[j]urisdiction

has been defined as ‘the power to hear and to determine a legal

controversy; to inquire into the facts, apply the law, and to

render and enforce a judgment[.]’"                  High v. Pearce, 220 N.C.

266, 271, 17 S.E.2d 108, 112 (1941) (citation omitted).                           As
                                          -8-
such, defendant’s failure to include a trial transcript for his

jury   trial    on    22    February     2013    does     not     negate   his       appeal

regarding   his      motion       to   dismiss   for    lack      of   subject       matter

jurisdiction.        See N.C. R. App. P. 10(a)(1).                The State’s motion

to dismiss defendant’s appeal as it relates to the issue of

subject matter jurisdiction must, therefore, be denied.

B. Defendant’s motion to suppress evidence from the checkpoint

                 [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. Rulings on
            motions in limine are preliminary in nature
            and subject to change at trial, depending on
            the evidence offered, and thus an objection
            to an order granting or denying the motion
            is insufficient to preserve for appeal the
            question   of  the   admissibility  of   the
            evidence.

State v. Reaves, 196 N.C. App. 683, 686, 676 S.E.2d 74, 77

(2009) (citation omitted).

       Defendant     made     a    pretrial      motion      to   suppress     evidence

regarding the checkpoint and DWI arrest.                          However, defendant

omitted the transcript of his jury trial; therefore, we have no

objective means of ascertaining whether defendant renewed his

motion to suppress at trial.               "[A] pretrial motion to suppress,

a type of motion in limine, is not sufficient to preserve for

appeal    the   issue       of     admissibility        of    evidence     .     .    .   .
                                           -9-
[Therefore, a] defendant waive[s] appellate review of this issue

by   failing   to    object    during       trial   to   the   admission"      of   the

challenged     evidence.      State    v.    Grooms,     353   N.C.     50,   66,   540

S.E.2d 713, 723 (2000) (citation omitted).                     Defendant, however,

points to the record of the pretrial hearing; there the trial

court   denied      his   motion      to    suppress     and    noted    defendant’s

“exception” to the trial court’s ruling.                       Further, defendant

points to an agreement between the State and defendant that the

pretrial hearing transcript would be sufficient for purposes of

defendant’s appeal.           This agreement is part of the record on

appeal.1     Therefore, even if defendant’s issue is not properly

preserved,     to    prevent     manifest        injustice      to    defendant     we




1
  The Settlement of Transcript, which is signed by counsel for
both the State and defendant and dated 14 March 2013, states
that:

           NOW COMES the undersigned attorneys on
           behalf of the Plaintiff, State of North
           Carolina and the Defendant, Steven Kostick
           as evidenced by their signatures hereto, and
           agree    that  the    court   reporter   who
           transcribed the proceedings is only required
           to transcribe all motions to suppress for
           lack of subject matter jurisdiction and that
           the trial transcript need not be transcribed
           since the Defendant is only appealing the
           court’s subject matter jurisdiction over the
           Defendant to the North Carolina Court of
           Appeals.
                                    -10-
exercise our authority pursuant to Rule 2 and hear defendant’s

appeal of this issue.

C. Defendant’s Knoll motion

    A Knoll motion, based on State v. Knoll, 322 N.C. 535, 369

S.E.2d   558   (1988),   alleges    that    a   magistrate   has    failed   to

inform a defendant of the charges against him, his right to

communicate with counsel, family, and friends, and the general

conditions he must meet for pretrial release pursuant to N.C.

Gen. Stat. § 15A-511 (2013).          "If there is a conflict between

the state's evidence and defendant's evidence on material facts,

it is the duty of the trial court to resolve the conflict and

such resolution will not be disturbed on appeal."                    State v.

Lewis,   147   N.C.   App.   274,   277,    555   S.E.2d   348,    351   (2001)

(citation omitted).

    Here, the trial court heard arguments by both sides and

made its findings of fact and conclusions of law during the

pretrial hearing; therefore, a transcript of defendant’s jury

trial is not necessary for our review of his Knoll motion.                   See

id.; Knoll, 322 N.C. 535, 369 S.E.2d 558.                  Accordingly, the

State’s motion to dismiss defendant’s Knoll motion is denied.

                      _________________________________

                                           I.
                                      -11-
                           Subject Matter Jurisdiction

     A. North Carolina road

     Defendant     first     argues   that        the    trial   court    erred    in

finding that the road on which defendant was stopped was a North

Carolina state road.         Specifically, defendant contends that the

road on which he was stopped, Drama Road, is on federal land

because it is controlled by the Tribe, and thus, the State had

no authority to stop and arrest defendant while he was driving

on   it.     Defendant’s      argument       as    to    whether   the    road     is

controlled by the State or the Tribe lacks merit, as our State

Highway Patrol enjoys an existing compact with the                        Tribe to

assist with patrolling and enforcing roads within this state.

     “[T]he Constitution grants Congress broad general powers to

legislate   in   respect     to    Indian    tribes,      powers   that    we     have

consistently     described    as    ‘plenary       and    exclusive.’”       United

States v. Lara, 541 U.S. 193, 200 (2004) (citations omitted).

Congress has defined Indian country as

            (a) all land within the limits of any Indian
            reservation under the jurisdiction of the
            United States Government . . . including
            rights-of-way      running     through     the
            reservation,   (b)    all  dependent    Indian
            communities within the borders of the United
            States   whether   within  the   original   or
            subsequently acquired territory thereof, and
            whether within or without the limits of a
            state, and (c) all Indian allotments, the
                                    -12-
          Indian titles to which             have not been
          extinguished,     including           rights-of-way
          running through the same.

18 U.S.C. § 1151 (2012).       Indian tribes retain "attributes of

sovereignty   over   both   their     members     and   their     territory."

United States v. Mazurie, 419 U.S. 544, 557 (1975).                "[T]ribal

sovereignty   is   dependent   on,    and   subordinate     to,    only    the

Federal Government, not the States."        Washington v. Confederated

Tribes of the Colville Indian Reservation, 447 U.S. 134, 154

(1980).   “[S]tate laws may be applied to tribal Indians on their

reservations if Congress has expressly so provided.”                 Cal. v.

Cabazon Band of Mission Indians, 480 U.S. 202, 207 (1987).

          Federal    recognition   of   the   [Cherokee]
          Eastern Band as an Indian tribe has at least
          two major implications for the issue of
          state    jurisdiction:    (1)   the    federal
          government continues to maintain plenary
          power over the Eastern Band, a fact which
          strictly limits extensions of state power,
          and   (2)    the  Eastern   Band,   like   all
          recognized Indian tribes, possesses the
          status of a "domestic dependent nation" with
          certain retained inherent sovereign powers.

Wildcatt v. Smith, 69 N.C. App. 1, 5—6, 316 S.E.2d 870, 874

(1984) (citations omitted).          An Indian tribe may engage in a

tribe-state   compact   “to    facilitate        the    exercise    of    each

government's respective authority.”             FELIX S. COHEN, HANDBOOK    OF

FEDERAL INDIAN LAW § 6.05, at 591 (Nell Jessup Newton ed., 2012).
                                        -13-
The reservation lands of the Tribe in our State are known as the

Qualla boundary.         See Sasser v. Beck, 40 N.C. App. 668, 670, 253

S.E.2d 577, 579 (1979) (“The United States first recognized the

rights of the Indians who had remained in North Carolina by an

Act of 1848, establishing a fund for their benefit.                         The Qualla

Boundary lands were purchased partly with money from this fund.

In 1866 the North Carolina legislature passed a statute granting

the Cherokee permission to remain in the State, and in 1868

Congress    provided      that   the    Secretary     of     the    Interior      should

‘take    the    same   supervisory      charge   of     the    Eastern       or    North

Carolina Cherokees as of other tribes of Indians.’                      In 1889 the

eastern    Cherokees      were   incorporated        under    the    laws    of    North

Carolina, and in 1897 their charter was amended to give the

Cherokee limited power of government, with special reference to

control of tribal property.              The title to the Qualla Boundary

lands,    which    had    been   held    by    the    Commissioner          of    Indian

Affairs, was conveyed to the corporation but remained subject to

the supervision of the Commissioner.             This title was conveyed to

the United States in trust in 1925.” (citation omitted)).

    The Tribe’s Code of Ordinances, section 20-1 states that:

               (a) In order to ensure consistency in the
               application and enforcement of all civil and
               criminal traffic and motor vehicle laws on
               the Cherokee Indian Reservation and in
                                 -14-
          surrounding areas, the Tribe adopts Chapter
          20 of the North Carolina General Statutes
          and any amendments to that chapter which may
          be made in the future. In so doing, all
          persons operating motor vehicles on the
          Cherokee Indian Reservation must abide by
          these provisions . . . . Any references in
          Chapter 20 of the N.C.G.S. to violations
          occurring within the State of North Carolina
          shall also include violations occurring
          within the Cherokee Indian Reservation.

          . . .

          (b) All civil traffic infractions contained
          therein shall be enforced by the North
          Carolina    Highway    Patrol, Federal   Law
          Enforcement    Officers,   and the  Cherokee
          Police Department . . . .

          . . .

          (e) All traffic and motor vehicle violations
          shall   be  enforced   in  accordance   with
          existing compacts in an effort to ensure
          cooperation between all law enforcement
          agencies.

CHEROKEE INDIANS EASTERN BAND, N.C., CODE ch. 20, art. 1, § 20-1 (2013)

(emphasis added).     Moreover, pursuant to section 15-2 of the

Tribe’s Code,

          (a) The North Carolina Highway Patrol is
          hereby authorized to patrol the roads and
          highways on the Cherokee Indian Reservation
          and to enforce the North Carolina traffic
          laws as adopted by the Eastern Band of
          Cherokee Indians.

          (b) The North Carolina Highway Patrol is
          hereby authorized to enforce the North
          Carolina criminal laws against all persons
                                     -15-
            who are not subject to the criminal laws of
            the Tribe or the criminal jurisdiction of
            the Cherokee Court.

Id. § 15-2.

      Defendant contends that the road on which he was stopped,

Drama Road, was not a road upon which the State Highway Patrol

had jurisdiction to operate.

      At   his   pretrial   hearing,      evidence    was   presented   showing

that Drama Road is held and maintained by the State within the

Tribe’s reservation, the Qualla boundary.               However, pursuant to

the   Tribe’s    Code,   section    20-1,     the     language   of   which    is

identical to that of Chapter 20 of our General Statutes, the

State Highway     Patrol has authority to “patrol the                 roads and

highways on the . . . reservation.”            Id.     Moreover, section 20-

1(e) of the Tribal Code notes that “[a]ll traffic and motor

vehicle violations shall be enforced in accordance with existing

compacts in an effort to ensure cooperation between all law

enforcement agencies.”        Id.   Furthermore, testimony by Cherokee

Officer    Teesateskie      and   State     Highway    Patrol    Trooper      Hipp

indicated that the Cherokee Police Department had a compact with

the Swain County Police Department and the State Highway Patrol

to provide assistance during the rally, and that this agreement

had existed for several years.
                                         -16-
       Defendant was initially stopped by Cherokee Officer Wright

on suspicion of Driving While Impaired before Trooper Hipp was

called in to assist.           As Trooper Hipp was authorized both under

Tribal Code § 20-1 and the mutual assistance compact between the

Tribe, the Swain County Police Department and the State Highway

Patrol, the State Highway Patrol, through Trooper Hipp, had the

right      to   assist   the    Tribe    in        stopping,    investigating,      and

arresting defendant on Drama Road. Defendant’s argument as to

whether the State or the Tribe controls Drama Road is overruled,

as    is   defendant’s     argument     concerning          Trooper    Hipp’s    arrest

authority.

       B. DWI Offense

       Defendant    also     contends        the    trial     court   lacked    subject

matter jurisdiction to prosecute defendant, a non-Indian, for a

DWI offense incurred while defendant was on Indian land.                               We

disagree.

       A    claim   that       the   trial         court    lacks     subject    matter

jurisdiction presents a question of law which is reviewed de

novo.      State v. Satanek, 190 N.C. App. 653, 656, 600 S.E.2d 623,

625   (2008).       “[T]he     issue    of    a     court's    jurisdiction     over   a

matter may be raised at any time, even for the first time on
                                       -17-
appeal or by a court sua sponte.”               State v. Webber, 190 N.C.

App. 649, 650, 660 S.E.2d 621, 622 (2008) (citation omitted).

       As discussed in Issue I, the Tribe has incorporated Chapter

20 of our General Statutes with regard to the regulation of

motor vehicles into its Code.             This incorporation and compact

with   neighboring   police      departments     gave    Trooper    Hipp    arrest

authority over defendant.         In determining whether the State then

had subject matter jurisdiction over defendant’s DWI offense, we

must look to general principles of Indian sovereignity.

                 [T]he Indian Civil Rights Act . . .
            permit[s] states to assume jurisdiction over
            civil cases involving Indians and arising in
            Indian country by consent of the tribe
            affected. The Eastern Band has never given
            formal consent to the assumption of state
            jurisdiction pursuant to the Indian Civil
            Rights Act.

Wildcatt, 69 N.C. App. at 7, 316 S.E.2d at 875 (citing Sasser v.

Beck, 40 N.C. App. 668, 253 S.E.2d 577 (1979)).                   Pursuant to 18

U.S.C. § 1153, an         Indian tribe has jurisdiction over crimes

committed by both its own Indian members and by Indian members

of other tribes.     18 U.S.C. § 1153 (2012); Oliphant v. Suquamish

Indian Tribe, 435 U.S. 191 (1978) (holding that by submitting to

the overriding sovereignty of the United States, Indian tribes

hold   inherent   power    to    try   and    punish    Indians    except   where

otherwise   prohibited      by   Congress).        However,       “the   commonly
                                     -18-
shared presumption of Congress . . . [is] that tribal courts do

not have the power to try non-Indians [for crimes committed on

Indian land].”    Oliphant, 435 U.S. at 207.

       Here, defendant concedes in his brief that he is not a

member of an Indian tribe.          Trooper Hipp testified that at the

time he placed defendant under arrest, he assumed that defendant

was non-Indian.         Moreover, in its findings of fact regarding

defendant’s pretrial motion to suppress the trial court noted

that    “[t]he   Court    can    only   assume      and   take    notice     that

[defendant] is a non-Indian . . . .”              As such, whether the trial

court would have subject matter jurisdiction over defendant’s

DWI offense would depend on whether a DWI offense, as defined by

section 20 of our General Statutes and the Tribal Code, is a

criminal or civil offense.

       After defendant blew a 0.15 on his breath test, defendant

was charged with DWI.          A DWI, as defined by N.C. Gen. Stat. §

20-138.1, is a misdemeanor offense; a misdemeanor offense is a

type of criminal offense.         See N.C.G.S. § 20-138.1(a)(1) (2013)

(“A person commits the offense of impaired driving if he drives

any    vehicle   upon    any    highway,    any    street,   or    any     public

vehicular area within this State [] [w]hile under the influence

of an impairing substance[.]”).
                                            -19-
       Pursuant to Tribal Code § 20-1, “[c]riminal penalties may

only be imposed against persons who are subject to the Cherokee

court’s criminal jurisdiction . . . .”                   CHEROKEE INDIANS EASTERN BAND,

N.C., CODE      ch.   20,      art.    1,   §   20-1.         Additionally,         the   Code

requires that a Cherokee magistrate follow specific procedures,

known as the “St. Cloud test,” to ensure that the Tribal court

would    have    jurisdiction          over     a    defendant.            After    specific

inquiries, “[i]f the Magistrate determines that the defendant is

a     non-Indian,       then     the    Magistrate           shall      notify     the    CIPD

(Cherokee Indian Police Department) of same, dismiss the Tribe’s

charges and turn the defendant over to the CIPD for transport to

the    appropriate       State    or    local        judicial      or      law    enforcement

officer or to the Federal authorities.”                              Id. § 15, App. A,

Cherokee R. Crim. P. 6(b)(1) (2013).                         Therefore, tribal courts

lack jurisdiction over non-Indians.                     See Oliphant, 435 U.S. at

210    (“The    power    of    the     United       States    to     try    and   criminally

punish is an important manifestation of the power to restrict

personal liberty.             By submitting to the overriding sovereignty

of the United States, Indian tribes therefore necessarily give

up their power to try non-Indian citizens of the United States

except in a manner acceptable to Congress.” (citation omitted)).

As such, the State Highway Patrol had authority over defendant.
                                           -20-
Therefore, where the Tribal Code of Ordinances adopted N.C.G.S.

Chapter     20    and    where    the     Code    further    authorizes        the   State

Highway Patrol to enforce North Carolina traffic laws as adopted

by the Eastern Band of the Cherokee Indians, the trial court did

not   err        in     exercising      subject      matter     jurisdiction           over

defendant.       Defendant’s argument is overruled.

                                            II.

      Defendant next challenges whether the roadblock set-up by

the Cherokee Police Department was constitutional.

      Defendant         first    argues     that    the     trial     court    erred    in

finding the roadblock constitutional because the State Highway

Patrol    lacked        authority    to    enforce    traffic       laws      within   the

Qualla boundary.          As we have already determined in Issue I that

the State Highway Patrol had authority to enforce traffic laws

within the Qualla boundary, we need not address this portion of

defendant’s argument.

      Defendant further argues that even if the State Highway

Patrol had authority to enforce traffic laws within the Qualla

boundary,        the    trial    court     erred     in     finding    the     roadblock

constitutional because the roadblock was improperly conducted.

We disagree.

                  When considering a challenge                        to a
             checkpoint,  the   reviewing court                        must
                                   -21-
          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.

State v. Veazey, 191 N.C. App. 181, 185—86, 662 S.E.2d 683, 686—

87 (2008) (internal quotations and citations omitted).

    The      State,      in   arguing     that       the      roadblock   was

constitutional,       presented   testimony      from      Cherokee   Officers

Wright and Teesateskie and State Highway Patrol Trooper Hipp

that the roadblock was one of two established near the rally.

Each roadblock was set-up to check all vehicles leaving the

rally for potential DWI, driver’s license, insurance, and unsafe

driving violations.        In its findings of fact the trial court

determined    the     roadblock   to    have     a      “legitimate   primary

programmatic purpose,” stating that

          the design of the procedure of a checkpoint
          was that each vehicle be stopped. The
          primary purpose was to see if the license
          was   current,  the   registration  of   the
          vehicle, and any other violation of the law
          that was then eminently detectable by the
          officer. Each and every vehicle coming out
          was checked. There was no selectivity in the
          process . . . .
                                       -22-


As defendant presented no evidence in the record to contradict

the State's proffered purpose for the roadblock, the trial court

could rely on the testifying police officers’ assertions of a

legitimate primary purpose.           Id. at 187, 662 S.E.2d at 687—88.

      The    trial      court    must,      after   finding          a     legitimate

programmatic     purpose,       determine     whether     the    roadblock       was

reasonable and, thus, constitutional.               "To determine whether a

seizure at a checkpoint is reasonable requires a balancing of

the   public's   interest       and   an   individual's   privacy          interest."

State v. Rose, 170 N.C. App. 284, 293, 612 S.E.2d 336, 342

(2005)      (citation     omitted).           "In   order       to        make   this

determination, this Court has required application of the three-

prong test set out by the United States Supreme Court in Brown

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

2637, 2640 (1979)."        State v. Jarrett, 203 N.C. App. 675, 679,

692 S.E.2d 420, 424—25 (2010) (citation omitted).                    "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."                  Id.          at 679, 692

S.E.2d at 425 (citation and quotations omitted).

                  The first Brown factor — the gravity of
                                      -23-
              the public concerns served by the seizure —
              analyzes the importance of the purpose of
              the checkpoint. This factor is addressed by
              first identifying the primary programmatic
              purpose . . . and then assessing the
              importance of the particular stop to the
              public.

Rose,   170    N.C.   App.    at   294,    612   S.E.2d    at    342   (citation

omitted). The trial court, in its findings of fact, noted that

the rally “added thousands [sic] people to an already burdening

population at that particular time of the year . . . to the

Cherokee      vicinity,”     and   that   “the   officers       concerned   about

checking traffic with regard to the users and participants for

that rally would [sic] probably certainly [sic] justified and

that the Court could almost take notice of the fact that at a

Harley Davidson Rally, they're not singing hymns.”

     When Officer Wright stopped defendant, he did so for the

purpose of checking defendant for potential driving violations.

After   Officer    Wright     noticed     that   defendant      appeared    to   be

intoxicated and saw two open cans of beer in the truck’s center

console, he directed defendant to return to the parking lot and

requested an available officer to come and assist in a potential

DWI investigation.         This Court has held that such measures are

appropriate under the first prong of Brown.               See State v. Nolan,

211 N.C. App. 109, 712 S.E.2d 279 (2011) (discussing how the
                                          -24-
first    prong     of     Brown   is    met    where    an   officer      stopped     the

defendant     at    a     roadblock,     detected      an    odor   of    alcohol     and

noticed     two    missing     bottles    from    a    six-pack     of   beer    in   the

vehicle, and began a DWI investigation); Veazey, 191 N.C. App.

at 191, 662 S.E.2d at 690 (“Both the United States Supreme Court

as   well    as     our     Courts     have     suggested      that      ‘license     and

registration checkpoints advance an important purpose[.]’                             The

United States Supreme Court has also noted that states have a

‘vital    interest’       in   ensuring       compliance     with   other    types    of

motor vehicle laws that promote public safety on the roads.”

(citations omitted)).

     Under the second Brown prong — “the degree to which the

seizure advance[d] the public interest” — the trial court must

determine     whether       “[t]he     police    appropriately        tailored      their

checkpoint stops to fit their primary purpose."                           Veazey, 191

N.C. App. at 191, 662 S.E.2d at 690 (internal quotation and

citation omitted).

             Our 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 starting or
                                     -25-
            ending time; and whether police offered any
            reason why that particular time span was
            selected.

Id.

      Here, the trial court made findings of fact indicating that

there was a written plan and guidelines set by the Cherokee

police   department     for   conducting    roadblocks       at    the   rally;    a

briefing on this plan and guidelines was held for all officers

and troopers assisting at the rally; two roadblocks were set up

at previously designated points to address traffic leaving the

rally;   the    roadblocks     had   specific      start   and     end   times    to

coincide   with   the   conclusion     of   the     rally;   and    both   police

cruisers and fire       trucks were placed at the roadblocks with

their lights flashing to indicate to drivers that roadblocks

were being conducted.         Such findings “do indicate that the trial

court considered appropriate factors to determine whether the

checkpoint was sufficiently tailored to fit its primary purpose,

satisfying the second Brown prong."             Jarrett, 203 N.C. App. at

680—81, 692 S.E.2d at 425.

      “The final Brown factor to be considered is the severity of

the interference with individual liberty.”                   Id.    at 681, 692

S.E.2d     at   425.          "[C]ourts     have     consistently        required

restrictions on the discretion of the officers conducting the
                                  -26-
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—93, 662 S.E.2d at

690—91.

          Courts 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[.]

Id. at 193, 662 S.E.2d at 691 (citations omitted).             "Our Court

has held that these and other factors are not 'lynchpin[s],’ but

instead [are] circumstance[s] to be considered as part of the

totality of the circumstances in examining the reasonableness of

a checkpoint."   Id. (internal quotations and citation omitted).

      The trial court’s findings of fact, which were supported

by the testimony of Officers Wright and Teesateskie and Trooper
                                         -27-
Hipp, found “there was in place a policy for checkpoints to be

established by local police as well as assistance from the North

Carolina    State    Highway         Patrol,    [for]     which       assistance         was

solicited     by    the   Cherokee        Police       Department”;         “the       local

Cherokee Police Department decided to establish two checkpoints

that are random, they don't do it regularly at either one of

those places”; and that “there [was] a policy, at that time, in

writing, . . . [but] that their office . . . moved twice, and

whatever document existed then no longer exists now.”                              As for

the policy, the trial court further noted that “the design of

the procedure of a checkpoint was that each vehicle be stopped”;

“[t]he primary purpose was to see if the license was current,

the registration of the vehicle, and any other violation of the

law that was then eminently detectable by the officer”;                                  and

that”[e]ach    and   every      vehicle       coming    out    was    checked      .    .    .

[t]here was no selectivity in the process.”                     In its conclusions

of law, the trial court stated that “the Court finds that those

facts support the propriety of the stop and the measure of it

and   the   substance     of    it    based    thereon,       [and]   the    motion         to

suppress    the    stop   and    any    information       obtained      as    a    result

thereof in regard to this defendant is denied.”                         As the trial

court properly determined that the roadblock had a legitimate
                                           -28-
programmatic       purpose       and    that     the        Brown    factors          were      met,

defendant’s argument is accordingly overruled.

                                           III.

    Defendant’s          final    argument       on    appeal        is    that       the     trial

court erred in failing to grant defendant’s                               Knoll       motion to

dismiss the DWI citation.              We disagree.

    A Knoll motion, based on State v. Knoll, 322 N.C. 535, 369

S.E.2d    558     (1988),      alleges    that     a     magistrate         has       failed     to

inform a defendant of the charges against him, his right to

communicate       with    counsel,       family,       and     friends,           and     of    the

general    circumstances         under    which        he    may     secure       his     release

pursuant to N.C. Gen. Stat. § 15A-511.                              See N.C.G.S. § 15A-

511(b) (2013); Knoll, 322 N.C. at 536, 369 S.E.2d at 559 (“Upon

a defendant's arrest for DWI, the magistrate is obligated to

inform     him    of     the    charges        against       him,     of        his     right    to

communicate       with    counsel        and    friends,        and        of     the     general

circumstances under which he may secure his release.”).                                        If a

defendant is denied these rights, the charges are subject to

being dismissed.         Knoll, 322 N.C. at 544, 369 S.E.2d at 564.                               On

appeal, the standard of review is whether there is competent

evidence     to     support       the     trial       court’s        findings           and     the

conclusions. State v. Chamberlain, 307 N.C. 130, 143, 297 S.E.2d
                                         -29-
540, 548 (1982) (citation omitted).                    "If there is a conflict

between    the       state's     evidence      and     defendant's     evidence    on

material facts, it is the duty of the trial court to resolve the

conflict and such resolution will not be disturbed on appeal."

Id.

      Defendant       raised     his   Knoll      motion   during     the    pretrial

hearing, arguing that the magistrate failed to promptly release

him after his arrest.            Defendant appeared before the magistrate

at 1:05 a.m., and was released from jail after posting bond at

4:50 a.m.       In making his Knoll motion, defendant contends that

the magistrate violated his rights to a timely pretrial release

by    setting    a     $500.00    bond      and      holding    him   in    jail   for

approximately three hours and 50 minutes.                      Defendant’s argument

is without merit. Pursuant to our standard of review, the trial

court properly denied defendant’s Knoll motion.

                  In determining which conditions of
            release to impose, the judicial official
            must, on the basis of available information,
            take    into    account   the    nature    and
            circumstances of the offense charged; the
            weight    of   the   evidence   against    the
            defendant; the defendant's family ties,
            employment, financial resources, character,
            and mental condition; whether the defendant
            is intoxicated to such a degree that he
            would   be   endangered  by   being   released
            without supervision; the length of his
            residence in the community; his record of
            convictions; his history of flight to avoid
                                      -30-
            prosecution or failure to appear at court
            proceedings; and any other evidence relevant
            to the issue of pretrial release.

N.C. Gen. Stat. § 15A-534(c) (2013).             “If the provisions of the

. . . pretrial release statutes are not complied with by the

magistrate,    and   the    defendant     can   show   irreparable   prejudice

directly    resulting      from   [this   noncompliance], the    DWI   charge

must be dismissed.”         State v. Labinski, 188 N.C. App. 120, 126,

654 S.E.2d 740, 744 (2008) (citation omitted).

    During the pretrial hearing, defendant presented evidence

in support of his Knoll motion that the magistrate failed to

promptly release him.         The State disputed this evidence in its

response.     In denying defendant’s motion, the trial court made

the following findings of fact and conclusions of law:

                 The defendant was arrested at or about
            10:30 p.m., was referred to a trooper, was
            taken to the jail in Swain County, and test
            administered on or about -- wait, let's see
            -- it was 12:34. Then he was released at
            approximately 4:50 a.m., after making bond.
            The magistrate upon receiving notification
            from the trooper that the breathalyser [sic]
            has registered in both tests .15, knowing
            that the defendant was a non-resident, the
            magistrate also opined that upon observing
            the defendant, he was, and I quote, "pretty
            drunk," end of quote.

                 Furthermore, that the magistrate was
            under an obligation not to turn him out in
            the public in that kind of condition
            notwithstanding the defendant's assertion
                                -31-
          that a breathalyser [sic] test is not
          accurate, and he wanted a blood test to show
          that. The Court further finds the magistrate
          did not deny him any rights by setting a
          bond, and the bond he made, albeit some four
          hours later. In any event, due to those
          circumstances the Court finds that his
          rights have not been violated.

               There's no prejudice shown to it,
          especially due to the fact that when he was
          released, he was in the company of a
          bondsman or bonds-lady, eventually back to
          the cabin where his then girlfriend, now
          wife, was. Either one of those ladies,
          either one could have helped him or assisted
          him in getting to a hospital to get a blood
          test. And if in the event I do take notice
          of alcohol dissipating from the body at .16
          per hour, then extrapolating forward or at
          least backwards at the time he was arrested
          he had a .18. Now, going forward, had he
          gone ahead and gotten the blood test when he
          had a chance to, he still would have been at
          or near .08, if the breathalyser [sic] was
          accurate. He had the chance to do so. He
          hasn't been denied any rights that he could
          have exercised on his own. Therefore, that
          motion under the Knoll test is denied.

    At   the   pretrial   hearing,   defendant   testified   that   the

magistrate told him of his right to contact family, friends and

counsel; defendant could not recall if the magistrate told him

that he could seek to have an independent chemical analysis

done. Defendant also acknowledged that when the magistrate asked

if he wanted to contact someone, defendant declared that he did

not, and signed the release forms indicating this.           Defendant
                                         -32-
further    testified       that   he    wanted   to   undergo     an    independent

chemical analysis at the hospital, but that the four hour delay

in his release prevented him from doing so.                       The magistrate

testified that he had a “cordial conversation” with defendant,

and that defendant was properly informed of his rights pursuant

to N.C.G.S. §15A-511(b).           The magistrate further testified that

defendant was given access to a telephone at the jail where he

could have contacted counsel or another person to assist him in

obtaining an independent analysis; defendant admitted that he

used this telephone to call a bail bondsman.                   As such, although

there was conflicting evidence between defendant and the State

as    to   whether   the     magistrate     erred     in   his    arraignment        of

defendant, the trial court resolved this conflict by weighing

all relevant evidence before concluding that the magistrate did

not commit a Knoll violation.             See State v. Lewis, 147 N.C. App.

274, 279, 555 S.E.2d 348, 351 (2001) (“At the hearing on the

Knoll motion, the defendant stipulated that Magistrate Alexander

informed him of his right to communicate with counsel, family,

and   friends.       The    defendant     testified     that     he    was   given   a

telephone and he attempted to make calls.                   Although there was

conflicting evidence, the trial court found the defendant was

informed     of   his   rights     by     Trooper     Jackson     and    Magistrate
                                  -33-
Alexander.    Further, it found that the defendant was given the

opportunity to exercise those rights but he failed to do so.

The findings of the trial court support its conclusions. Thus,

the trial court did not err in denying the motion to dismiss.”).

      Defendant further argues that the magistrate erred in his

arraignment by also charging defendant with carrying a concealed

weapon.   During Trooper Hipp’s investigation defendant admitted

that he had a handgun in his truck.         Although defendant had a

permit for the handgun issued in South Carolina, defendant did

not produce this permit until his trial at which time the charge

was   dismissed.    As    such,   the    magistrate    was   unaware   of

defendant’s handgun permit at the time defendant was brought

before him.

      In determining whether to hold defendant under bond, the

magistrate    testified    that    he     considered     all    relevant

circumstances surrounding defendant pursuant to N.C.G.S. § 15A-

534(c).   The magistrate stated that he set defendant’s bond at

$500.00 because defendant was, based on the chemical analysis,

“pretty drunk,” defendant was from out-of-state and therefore

“[i]t’s very common to ask for some kind of a secured bond when

people are not from this area[,]” and because defendant had a

firearm on him at the time of his arrest.         The magistrate then
                                        -34-
acknowledged that had he known defendant had a South Carolina

permit for the handgun, he “would not have charged him with that

because we honor South Carolina permits.”                    Therefore, as the

magistrate      made     his   decision       as   to   defendant’s           bond   by

considering all of the evidence before him, the magistrate did

not err in charging defendant for carrying a concealed weapon.

Furthermore,      even    if   the    magistrate        erred    in      considering

defendant’s handgun in determining defendant’s bond, such error

was   not     prejudicial.       In     its    conclusions       of     law    denying

defendant’s Knoll motion, the trial court noted that

              [t]here's no prejudice shown . . . . And if
              in the event I do take notice of alcohol
              dissipating from the body at .16 per hour,
              then extrapolating forward or at least
              backwards at the time he was arrested he had
              a .18. Now, going forward, had he gone ahead
              and gotten the blood test when he had a
              chance to, he still would have been at or
              near .08, if the breathalyser was accurate.

As    such,     the    trial    court     specifically          found     that       the

magistrate’s processing of defendant was not prejudicial because

defendant was so intoxicated that his length of detention and

bond amount was thus proper.             See Labinski, 188 N.C. App. 120,

654 S.E.2d 740 (finding no prejudicial error where the defendant

was arrested for DWI, blew at 0.08, was assigned a $500.00 bond,

and was held in the jail for over two hours until she posted
                                   -35-
bond, despite the magistrate failing to determine whether the

defendant   would   pose   a   threat   if   released   “under   conditions

other than a secured bond”).            Accordingly, defendant’s final

argument on appeal is overruled.

    The State’s motion to dismiss is denied.            The trial court’s

denial of defendant’s pretrial motions is affirmed.

    Judges CALABRIA and GEER concur.
