State v. White

Decision Date04 February 2014
Docket NumberNo. COA13–494.,COA13–494.
Citation753 S.E.2d 698
CourtNorth Carolina Court of Appeals
PartiesSTATE of North Carolina v. Garry WHITE.
OPINION TEXT STARTS HERE

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 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 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 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.

...

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 operationof 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.

...

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 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 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...

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