Opinion
No. COA12–1527.
2013-08-6
STATE of North Carolina v. Nathaniel H. SMITH.
Attorney General Roy Cooper, by Assistant Attorney General William P. Hart, Jr., for the State. Sharon L. Smith, for defendant-appellant.
Appeal by defendant from judgments entered 25 July 2012 by Judge W. Osmond Smith, III in Person County Superior Court. Heard in the Court of Appeals 24 April 2013. Attorney General Roy Cooper, by Assistant Attorney General William P. Hart, Jr., for the State. Sharon L. Smith, for defendant-appellant.
CALABRIA, Judge.
Nathaniel H. Smith (“defendant”) appeals from judgments entered upon jury verdicts finding him guilty of possession with intent to sell or deliver (“PWISD”) marijuana, possession of cocaine, intentionally maintaining a vehicle for the purpose of selling marijuana, and possession of drug paraphernalia. We find no error.
I. Background
At approximately 11:00 p.m. on 9 July 2010, defendant and a passenger approached an automobile checkpoint operated by the Person County Sheriff's Office (“the Sheriff's Office”). Deputy Clint Dixon (“Deputy Dixon”) approached defendant's vehicle and requested his license and registration. Defendant complied with this request and provided Deputy Dixon the required documentation. During this encounter, Deputy Dixon detected an odor of marijuana and alcohol emanating from the vehicle.
Deputy Dixon began talking with the passenger of the vehicle and noted that he was acting nervous. Deputy Dixon asked the passenger to exit the vehicle and patted him down for weapons. During the pat down, Deputy Dixon discovered a device used for smoking marijuana.
Deputy Dixon then directed defendant to exit the vehicle. After a pat-down search of defendant's person, Deputy Dixon summoned a drug-sniffing dog that was at the checkpoint to sniff defendant's vehicle for drugs. Deputy Christopher Newman, a canine officer, conducted the canine sniff, and the dog alerted on multiple locations in defendant's vehicle. Deputy Dixon then searched the vehicle and recovered a bag of marijuana.
Defendant was placed under arrest. During a search incident to this arrest, Deputy Anthony Evans discovered a small baggie in defendant's possession containing a substance that was later determined to be cocaine.
Defendant was indicted for PWISD marijuana, possession of cocaine, and maintaining a vehicle used for the sale of a controlled substance. Prior to trial, defendant filed two motions to suppress. The first motion challenged the validity of the checkpoint operated by the Sheriff's Office, and the second motion challenged defendant's extended detention after he produced a valid license and registration. On 24 July 2012, the trial court conducted a hearing on defendant's motions and denied both in open court.
Defendant was tried by a jury, and on 25 July 2012, the jury returned verdicts finding defendant guilty of all charges. For the convictions for PWISD marijuana, possession of cocaine, and maintaining a vehicle, defendant was sentenced to three consecutive sentences of a minimum of 6 months to a maximum of 8 months in the North Carolina Division of Adult Correction (“DAC”). These sentences were suspended and defendant was placed on supervised probation for 36 months. As an intermediate sanction, defendant was sentenced to three consecutive 60–day active sentences. For the conviction for possession of drug paraphernalia, defendant was sentenced to 60 days in the DAC, to be served at the conclusion of defendant's felony sentences. Defendant appeals.
II. Notice of Appeal
As an initial matter, we address defendant's notice of appeal. Defendant filed a timely written pro se notice of appeal. However, defendant failed to serve his notice of appeal on the State and failed to designate the court to which his appeal was taken, in violation of our appellate rules. As a result, defendant's appellate counsel has filed a petition for writ of certiorari in the event that this Court determines that defendant's rule violations are fatal to his appeal. The State did not file a response to the petition, but asserts in its brief that it “take[s] no position with respect to defendant's petition.”
In State v. Ragland, this Court addressed a notice of appeal with identical procedural deficiencies. ––– N.C.App. ––––, ––––, 739 S.E.2d 616, 620 (2013). First, the Court concluded that the defendant's failure to serve the State was not fatal to the appeal because the State had “not raised the issue of lack of service of the notice of appeal by motion or otherwise and has participated without objection in the appeal by filing its brief” and therefore, “any objection to the lack of service has been waived.” Id. Likewise, in the instant case, the State has never raised any objection to its lack of service and has fully participated in the appeal by filing its brief. Thus, the State has waived any objection to lack of service.
The Ragland Court also concluded that the defendant's failure to designate this Court was not fatal to the defendant's appeal because “defendant's intent to appeal is plain, and since this Court is the only court with jurisdiction to hear defendant's appeal, it can be fairly inferred defendant intended to appeal to this Court. The State does not suggest that it was in any way misled by the notice of appeal.” Id. This analysis is equally applicable to the instant case. Since defendant's notice of appeal in the instant case is procedurally identical to the notice of appeal which was found to sufficiently confer jurisdiction upon this Court in Ragland, we must follow that decision by “dismiss[ing] the petition for writ of certiorari” and addressing the merits of defendant's appeal. Id.
III. Standard of Review
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). “In addition, this Court may also consider any uncontroverted evidence which was presented at the suppression hearing which would support the trial court's conclusions of law.” State v. Rollins, –––N.C.App. ––––, ––––, 738 S.E.2d 440, 451 (2013) (citing State v. Richardson, 316 N.C. 594, 600, 342 S.E.2d 823, 828 (1986)). “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).
IV. Validity of Checkpoint
Defendant argues that the trial court erred by concluding that the checkpoint was constitutionally valid. We disagree.
“[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, 677, 692 S.E.2d 420, 423 (2010) (internal quotations and citations omitted).
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. (internal quotations and citations omitted).
A. Primary programmatic purpose
Defendant first argues that the trial court erred by failing to make a finding regarding the primary programmatic purpose of the checkpoint. “In considering the constitutionality of a checkpoint, the trial court must initially examine the available evidence to determine the purpose of the checkpoint program.” Id. (internal quotations and citation omitted).
Our Court has previously held that where there is no evidence in the record to contradict the State's proffered purpose for a checkpoint, a trial court may rely on the testifying police officer's assertion of a legitimate primary purpose. However, where there is evidence in the record that could support a finding of either a lawful or unlawful purpose, a trial court cannot rely solely on an officer's bare statements as to a checkpoint's purpose. In such cases, the trial court may not simply accept the State's invocation of a proper purpose, but instead must carr[y] out a close review of the scheme at issue. This type of searching inquiry is necessary to ensure that an illegal multi-purpose checkpoint [is not] made legal by the simple device of assigning the primary purpose to one objective instead of the other[.]
Id. at 678, 692 S.E.2d at 424 (internal quotations and citations omitted). “[W]hen a trooper's testimony varies concerning the primary purpose of the checkpoint, the trial court is required to make findings regarding the actual primary purpose of the checkpoint and ... to reach a conclusion regarding whether this purpose was lawful.” State v. Gabriel, 192 N.C.App. 517, 521, 665 S.E.2d 581, 585 (2008)(internal quotations and citation omitted).
In the instant case, Sergeant Dunn testified that the purpose of the checkpoint was “verification of driver's license[s], registration check, and seat belt compliance.” The written plan for the checkpoint also indicated that the purpose of the checkpoint was verification of driver's licenses, vehicle registration checks, and seatbelt compliance checks. None of the testimony in the remainder of the suppression hearing contradicts the purpose asserted by Sergeant Dunn.
Defendant contends that circumstantial evidence surrounding the checkpoint conflicts with Sergeant Dunn's testimony. For instance, defendant notes that a drug-sniffing dog was present at the checkpoint. However, there is no evidence that this dog was used during any driver's initial interaction with the checkpoint, and thus, the dog's presence was immaterial to the purpose of the checkpoint. Defendant also notes that there were drug arrests at the checkpoint. Nevertheless, whether there were drug arrests does not affect the analysis of the purpose of the checkpoint, since the drug arrests were related to information obtained while the officers were checking licenses and registrations. Thus, Sergeant Dunn's uncontroverted testimony was sufficient evidence to establish that the primary programmatic purpose of the checkpoint was checking for drivers' licenses, vehicle registration, and seatbelt compliance. Jarrett, 203 N.C.App. at 678, 692 S.E.2d at 424. Both the United States Supreme Court and our Courts have upheld this purpose as lawful. See id. at 678–79, 692 S.E.2d at 424.
B. Reasonableness
Defendant also argues that the trial court made insufficient findings regarding the reasonableness of the checkpoint. Once a trial court determines the primary programmatic purpose of a checkpoint, it must then apply the three-prong inquiry set forth by the United States Supreme Court in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). Jarrett, 203 N.C.App. at 679, 692 S.E.2d at 424–25. “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 (internal quotations and citation omitted).
i. The gravity of the public concerns
“ ‘The first Brown factor—the gravity of 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.’ “ Jarrett, 203 N.C.App. at 679, 692 S.E.2d at 425 (internal quotations and citation omitted).
In the instant case, as noted above, the primary purpose of the checkpoint was to check drivers' licenses, vehicle registration, and seatbelt compliance.
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.
Jarrett at 680, 692 S.E.2d at 425 (citation omitted). Therefore, the checkpoint adequately satisfied the requirements of the first prong of Brown.
ii. The degree to which the seizure advanced public interests
Under the second prong of Brown, the degree to which the seizure advanced public interests, the trial court must determine “whether ‘[t]he police appropriately tailored their checkpoint stops' to fit their primary purpose.” State v. Veazey, 191 N.C.App. 181, 191, 662 S.E.2d 683, 690 (2008) (quoting Illinois v. Lidster, 540 U.S. 419, 427, 124 S.Ct. 885, 891, 157 L.Ed.2d 843, 852 (2004)).
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 ending time; and whether police offered any reason why that particular time span was selected.
Jarrett, 203 N.C.App. at 680, 692 S.E.2d at 425 (citation omitted).
In the instant case, the trial court found that the checkpoint was operated pursuant to a valid plan and every vehicle was stopped. Moreover, the trial court found that the checkpoint was a valid checking station pursuant to Chapter 20 of the North Carolina General Statutes, which sets forth the requirements for checking stations and roadblocks, including designating in advance a pattern for stopping vehicles, operating under a written policy, and placing checkpoints at random or using statistical indicators. N.C. Gen.Stat. § 20–16.3A (2011). Additionally, the actual written plan for the checkpoint indicates that the checkpoint was scheduled from 11:00 p.m. on 9 July 2010 to 12:00 a.m. on 10 July 2010. Sergeant Dunn testified that the location of the checkpoint was selected at random as permitted by N.C. Gen.Stat. § 20–16.3A, and that the predetermined protocol for the checkpoint, in accordance with the Sheriff's Office policy, was to check every vehicle coming through the checkpoint for drivers' licenses, registrations, and seatbelt compliance so long as there was sufficient manpower to continue making the stops. This policy was followed until defendant's vehicle was stopped at the checkpoint, at which time all officers were occupied.
The trial court's findings and the undisputed evidence presented at the suppression hearing indicate that the checkpoint was sufficiently tailored to fit its primary purpose. Consequently, the checkpoint satisfied the second prong of Brown.
iii. The severity of the interference with individual liberty
Under the third prong of Brown, the trial court must consider the severity of the interference with individual liberty. “[C]ourts have consistently required restrictions on the discretion of the officers conducting the checkpoint to ensure that the intrusion on individual liberty is no greater than is necessary to achieve the checkpoint's objectives.” Jarrett, 203 N.C.App. at 681, 692 S.E.2d at 425 (internal quotations and citation omitted).
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 681, 692 S.E.2d at 425–26 (citation 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.” Veazey, 191 N.C.App. at 193, 662 S.E.2d at 691 (internal quotations and citation omitted).
In the instant case, according to the undisputed evidence, there was a Sheriff's Office vehicle operating its blue lights to put drivers on notice of the approaching checkpoint and that every vehicle passing through the checkpoint was stopped until all officers were occupied. The supervisor in charge, Sergeant Dunn, was present at the meeting in which the location for the checkpoint was determined. Sergeant Dunn was also present when the checkpoint began, prior to leaving to pursue a car which had turned and drove away from the checkpoint. The trial court found that the checkpoint was a valid checking station pursuant to Chapter 20 of the North Carolina General Statutes and also that the checking station was operated in accordance with a previously devised plan. These findings and the undisputed evidence presented at the suppression hearing sufficiently demonstrate that the checkpoint did not intrude upon defendant's individual liberty any greater than was necessary to achieve its objectives. Accordingly, the checkpoint satisfied the third prong of the Brown test.
Thus, we conclude that the trial court's findings of fact, together with the undisputed evidence presented at the suppression hearing, adequately demonstrate that the checkpoint satisfied all three prongs of the Brown test. The trial court properly concluded that the checkpoint, with the constitutionally valid primary purpose of checking for drivers' licenses, vehicle registrations, and seatbelt compliance, was reasonable. This argument is overruled.
V. Validity of Extended Detention
Defendant also argues that, even if the checkpoint was constitutional, the trial court erred by denying his motion to suppress because law enforcement did not have reasonable, articulable suspicion to prolong his stop after he provided a valid license and registration. We disagree.
“The United States Supreme Court has held that ‘police officers [may] act appropriately upon information that they properly learn during a checkpoint stop justified by a lawful primary purpose, even where such action may result in the arrest of a motorist for an offense unrelated to that purpose.’ “ Jarrett, 203 N.C.App. at 682, 692 S.E.2d at 426 (quoting City of Indianapolis v. Edmond, 531 U.S. 32, 48, 121 S.Ct. 447, 457, 148 L.Ed.2d 333, 347 (2000)).
However, [o]nce the original purpose of the stop has been addressed, in order to justify further delay, there must be grounds which provide the detaining officer with additional reasonable and articulable suspicion or the encounter must have become consensual. Where no grounds for a reasonable and articulable suspicion exist and where the encounter has not become consensual, a detainee's extended seizure is unconstitutional.
Jarrett, 203 N.C.App. at 682, 692 S.E.2d at 426 (internal quotations and citation omitted).
In the instant case, the trial court found that “while the defendant's driver's license was being checked, the officers detected an odor of marijuana and alcohol coming from within the vehicle.” Defendant contends that the trial court's finding, which was based upon testimony by Deputy Dixon, was not supported by competent evidence. In support of his contention, defendant notes that Deputy Dixon's written report from the night of the arrest did not include the fact that any odors were coming from the vehicle. In addition, neither the deputy who conducted the canine sniff of defendant's vehicle nor the deputy who restrained defendant with handcuffs testified that they detected an odor of marijuana coming from defendant's vehicle.
However, Deputy Dixon clearly testified that he detected the odor of marijuana coming from the vehicle while he was processing defendant's license and registration. In finding that the officers detected an odor of marijuana, the trial court resolved the apparent conflict between Deputy Dixon's testimony, his written report, and the testimony of the other officers. Since Deputy Dixon's testimony supported the trial court's finding, it is binding on appeal. See State v. Smith, 160 N.C.App. 107, 114, 584 S.E.2d 830, 835 (2003) ( “[T]he trial court's findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.” (emphasis added and internal quotations and citation omitted)). Moreover, this finding of fact supports the trial court's conclusion that the officers had reasonable, articulable suspicion to detain defendant after he provided a valid license and registration. This argument is overruled.
VI. Conclusion
The trial court's findings of fact were supported by competent evidence, and these findings, together with the undisputed evidence from the suppression hearing, support the trial court's conclusions that the checkpoint was lawful and that Deputy Dixon possessed reasonable and articulable suspicion to further detain defendant. Therefore, the trial court properly denied both of defendant's motions to suppress.
No error. Judge McCULLOUGH concurs.
Judge STEELMAN concurs in the result only.
Report per Rule 30(e).