State v. Townsend

NO. COA14-129

NORTH CAROLINA COURT OF APPEALS

Filed: 16 September 2014

STATE OF NORTH CAROLINA

v. Mecklenburg County

No. 10 CRS 250836

BRUCE ALLEN TOWNSEND, JR.,

Defendant.

Appeal by defendant from judgment entered 1 August 2013 by

Judge Susan E. Bray in Mecklenburg County Superior Court. Heard

in the Court of Appeals 4 June 2014.

Attorney General Roy Cooper, by Special Deputy Attorney

General Lars F. Nance, for the State.

Arnold & Smith, PLLC, by Laura M. Cobb, for defendant-

appellant.

BRYANT, Judge.

Defendant’s Knoll motion was properly dismissed where the

magistrate followed N.C. Gen. Stat. § 15A-511(b) in informing

defendant of his rights and in setting an option bond such that

any technical statutory violation committed by the magistrate

was not prejudicial to defendant. Where the State presented

sufficient evidence such that a reasonable person could believe

defendant committed the offense of driving while impaired, the

-2-

trial court properly denied defendant’s motion to suppress for

lack of probable cause. A technical statutory violation

committed by the trial court during a pre-trial hearing but not

at trial did not result in error that would entitle defendant to

a new trial. Where the trial court determined that a driving

while impaired checkpoint was established for a legitimate

primary purpose and that the Brown factors were met, defendant’s

motion to suppress evidence of the checkpoint was properly

denied.

On 21 October 2010, defendant Bruce Allen Townsend, Jr.,

was arrested for driving while impaired. On 24 August 2011,

defendant was convicted in Mecklenburg County District Court of

driving while impaired and sentenced to thirty days

imprisonment. The District Court suspended defendant’s sentence

and placed him on unsupervised probation for twelve months.

Defendant was further ordered to obtain a substance abuse

assessment, comply with recommended treatment, complete twenty-

four hours of community service, and pay courts costs, a $100.00

fine, and a $250.00 community service fee.

Defendant appealed to Superior Court, and on 30 August

2012, was tried before a jury during the criminal session of

Mecklenburg County Superior Court, the Honorable Susan E. Bray,

-3-

Judge presiding. At trial, the State’s evidence tended to show

the following.

On the evening of 21 October 2010, a checkpoint was

established in the 7200 block of Providence Road in Charlotte by

the Charlotte-Mecklenburg Police Department to check for

impaired drivers and other vehicular infractions. At

approximately 11:28 p.m., defendant drove up to the checkpoint

where he encountered Officer Todd Davis. Officer Davis engaged

defendant in conversation and noticed that defendant emitted an

odor of alcohol and had red, bloodshot eyes. When asked by

Officer Davis whether he had had anything to drink that evening,

defendant responded that he had consumed several beers earlier.

Officer Davis administered two alco-sensor tests to defendant;

both tests were positive for alcohol.

Officer Davis then asked defendant to perform several field

sobriety tests. Officer Davis testified that when he

administered a horizontal gaze nystagmus test to defendant, he

noticed three signs of intoxication. On a “walk and turn” test,

defendant exhibited two signs of intoxication, and on a “one leg

stand” test, defendant showed one sign of intoxication. Officer

Davis also requested that defendant recite the alphabet from J

-4-

to V, which defendant did without incident. Officer Davis

subsequently arrested defendant for driving while impaired.

Defendant was taken to a Breath Alcohol Testing vehicle

located at the checkpoint where he blew a 0.10 on his first test

and a 0.09 on his second test. Officer Davis then drove

defendant to the Mecklenburg County jail. Defendant was

admitted to the jail at 12:56 a.m., appeared before the

magistrate at 2:54 a.m., and was released to his wife’s custody

at 4:45 a.m.

Defendant was convicted by a jury of driving while impaired

and sentenced by the trial court to sixty days imprisonment.

Defendant’s sentence was suspended and he was placed on

unsupervised probation for twenty-four months. Defendant was

also ordered to pay court costs, a $100.00 fine, and a $250.00

community service fee; perform twenty-four hours of community

service; surrender his driver’s license to the clerk; not

operate a motor vehicle until his license is restored; and to

complete all treatments recommended by his alcohol assessment.

Defendant appeals.

_______________________________

On appeal, defendant raises four issues as to whether the

trial court: (I) erred in denying defendant’s motion to dismiss

-5-

pursuant to defendant’s Knoll motion; (II) erred in denying

defendant’s motion to suppress for lack of probable cause; (III)

abused its discretion in denying defendant’s motion to redact

evidence of the alco-sensor test; and (IV) erred in denying

defendant’s motion to suppress evidence resulting from the

checkpoint.

I.

Knoll Motion

Defendant first argues that the trial court erred in

denying his Knoll motion to dismiss. 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.” (citation

omitted)). If a defendant is denied these rights, the charges

-6-

are subject to being dismissed. Knoll, 322 N.C. at 544—45, 369

S.E.2d at 564. “[I]n those cases arising under N.C.G.S. § 20-

138.1(a)(2), prejudice will not be assumed to accompany a

violation of defendant's statutory rights, but rather, defendant

must make a showing that he was prejudiced in order to gain

relief.” Id. at 545, 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 of fact and its conclusions

of law. State v. Chamberlain, 307 N.C. 130, 143, 297 S.E.2d

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. (citation omitted).

Defendant raised his Knoll motion during his pre-trial

hearing, contending he was denied his right to communicate with

counsel and friends, and that this denial to have others observe

him resulted in substantial prejudice.

In its order denying defendant’s motion to dismiss pursuant

to Knoll, the trial court made the following findings of fact:

1. Officer Davis stopped [defendant] at a

checkpoint on Providence Road at

approximately 11:28pm on Thursday, October

21, 2010.

-7-

2. Defendant submitted to portable breath

tests and had a positive reading for

alcohol.

3. Officer Davis took Defendant to [the

Blood Alcohol Testing] mobile unit for [an]

intoxilyzer test. Defendant signed [a]

rights [form] at 11:55pm, acknowledging his

right to call an attorney or witness.

4. Defendant blew 0.09 on Intox EC/IR-II.

5. Defendant did not at any time call a

witness or ask for a witness.

6. Defendant did call his wife . . . to let

her know he had been arrested, [and] told

her he or someone would call her later to

come pick him up.

7. Officer Davis transported Defendant to

[the] Mecklenburg County Jail, where he was

received at approximately 12:56 am on

October 22, 2010.

8. At the jail, Defendant had his property

checked, was booked, saw the nurse, [and]

was fingerprinted [and] photographed.

9. Officer Davis submitted his arrest paper

work and charging affidavit to the

magistrate.

10. Defendant signed [an] implied consent

offense notice (AOC-CR-271) in front of

[the] magistrate at 2:34am, giving his

[wife’s] name and phone number as a contact

person.

11. [The] [m]agistrate had [Officer Davis’s]

information about the charge, BAC results,

information from Defendant about address,

length of employment, etc. and set

-8-

conditions of release. Those conditions

were a $1000 secured bond or a $1000

unsecured release to a sober responsible

adult with ID or any terms or conditions of

pretrial services if accepted by the

program.

12. Some official from the jail called

[defendant’s wife] to inform her that she

could come pick up Defendant. She left her

home around 3am and arrived at the jail

around 3:15 or 3:20am to pick up Defendant.

13. [Defendant’s wife] waited for about 20

minutes in the wrong area of the jail, then

went to another area, spoke with appropriate

personnel around 3:52am, [and] signed

Defendant out at 4:21am (after jailers

verified he had no outstanding criminal

warrants, was medically cleared, retrieved

his property, etc.).

The trial court then made the following conclusions of law:

In accordance with NCGS 15A-534(a), a

judicial official, in determining conditions

of pretrial release, must impose [at least]

one of the following conditions:

1. Release the defendant on his written

promise to appear.

2. Release the defendant upon his

execution of an unsecured appearance

bond in an amount specified by the

judicial official.

3. Place the defendant in the custody

of a designated person or organization

agreeing to supervise him.

4. Require the execution of an

appearance bond in a specified amount

secured by a cash deposit in the full

-9-

amount of the bond, by a mortgage pursuant

to NCGS 58- 74-5, or by at least one

solvent surety.

Further, in accordance with NCGS 15A[-

]534(b), the judicial official, in granting

pretrial release, must impose condition (1),

(2) or (3) in subsection (a) above unless he

determines that such release will not

reasonably assure the appearance of the

defendant as required; will pose a danger of

injury to any person; or is likely to result

in destruction of evidence, subornation of

perjury, or intimidation of potential

witnesses. Upon making the determination,

the judicial official must then impose

condition (4) in subsection (a) above

instead of condition (1), (2), or (3) and

must record the reasons for doing so in

writing to the extent provided in the

policies or requirements issued by the

senior resident superior court judge

pursuant to NCGS 15A-535(a).

In this matter, the magistrate’s terms and

conditions of release for [defendant]

included a combination of conditions (2) and

(3), an unsecured bond and release to a

sober responsible adult with ID, that person

being [defendant’s wife]. Defendant never

asked for witnesses; in fact [defendant]

only asked his wife to come pick him up.

North Carolina General Statutes, section 15A-534, provides

that:

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,

-10-

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

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).

In its findings of fact and conclusions of law, the trial

court noted that defendant had the opportunity to contact

counsel and friends to observe him. A review of the record

shows that defendant had several opportunities to call counsel

and friends to observe him and help him obtain an independent

chemical analysis, but that defendant failed to do so. In fact,

the record shows that defendant asked that his wife be called,

but only for the purpose of telling her that he had been

arrested. As such, defendant was not denied his rights pursuant

to Knoll.

-11-

Defendant further contends his rights were violated because

the magistrate ordered defendant held under a $1,000.00 secured

bond without justification and prior to meeting with him.

Defendant cites State v. Labinski in support of his argument.

In Labinski, the defendant was arrested for driving while

impaired. Id. at 122, 654 S.E.2d at 741. The defendant did not

request that she be observed by witnesses, nor did she seek to

have an independent chemical analysis conducted, even though her

friends were at the detention center to help her. Id. at 122,

654 S.E.2d at 741—42. The magistrate gave the defendant a

$500.00 secured bond without making any findings of fact as to

why a secured bond was required. Id. at 122—23, 654 S.E.2d at

742. On appeal, this Court determined that the magistrate’s

failure to make findings as to why a secured bond was necessary

amounted to a statutory violation. Id. at 126—27, 654 S.E.2d at

744—45. However, this Court affirmed the trial court, finding

that despite the magistrate’s commission of a statutory

violation, the defendant failed to show how that violation was

prejudicial to her. Id. at 127—28, 654 S.E.2d at 745.

Here, the conditions of the release order did not, as

defendant contends, strictly impose a $1,000.00 secured bond on

him. Rather, as noted by the trial court in its findings of

-12-

fact, the magistrate set an option bond that gave defendant a

choice between paying a $1,000.00 secured bond or a $1,000.00

unsecured bond and being released to a sober, responsible adult;

defendant was eventually released to his wife. Defendant now

challenges the secured bond option, arguing that the magistrate

was required to make written findings of fact as to the terms of

defendant’s option bond.

Pursuant to N.C. Gen. Stat. § 15A-534(a), a magistrate is

not required to make written findings of fact when setting

conditions of release unless the terms of defendant’s release

require a secured bond. N.C.G.S. § 15A-534(a) (2013). As such,

although the magistrate was not required to make any written

findings of facts in the option bond when imposing the condition

of allowing defendant to pay an unsecured bond and be released

to a sober, responsible adult, the magistrate was required to

make written findings as to the option bond’s other potential

condition for release — a secured bond.

However, even though the magistrate may have committed a

technical statutory violation, defendant has failed to

demonstrate how he was prejudiced as a result. Defendant was

not released on a secured bond — he was instead released on an

unsecured bond to the custody of his wife. Therefore, even had

-13-

the magistrate been required to make findings of fact as to the

secured bond option, no secured bond was imposed, and defendant

cannot show prejudice. See Labinski, 188 N.C. App. at 127—28,

654 S.E.2d at 745 (holding that even though the magistrate

committed a technical statutory violation by failing to make

findings of fact regarding a secured bond, the defendant was

unable to show how such a violation prejudiced her). Moreover,

here, defendant was afforded his statutory right to pretrial

release and his right to communicate with counsel and friends.

Accordingly, defendant’s argument is overruled.

II.

Probable Cause

Next, defendant contends the trial court erred in denying

defendant’s motion to suppress for lack of probable cause. We

disagree.

We note at the outset that defendant has not assigned error

to the trial court's findings of fact, and those findings are

therefore binding on appeal. In re S.N.H. & L.J.H., 177 N.C.

App. 82, 83, 627 S.E.2d 510, 512 (2006) (citation omitted). Our

review is thus limited to considering whether the trial court

erred by concluding, as a matter of law, that there was probable

cause to arrest defendant for driving while impaired. This

-14-

Court reviews conclusions of law de novo. State v. Ripley, 360

N.C. 333, 339, 626 S.E.2d 289, 293 (2006) (citations omitted).

Probable cause for an arrest is a

reasonable ground of suspicion, supported by

circumstances sufficiently strong in

themselves to warrant a cautious man in

believing the accused to be guilty.

To justify a warrantless arrest, it is not

necessary to show that the offense was

actually committed, only that the officer

had a reasonable ground to believe it was

committed. The existence of such grounds is

determined by the practical and factual

considerations of everyday life on which

reasonable and prudent people act. If there

is no probable cause to arrest, evidence

obtained as a result of that arrest and any

evidence resulting from the defendant's

having been placed in custody, should be

suppressed.

State v. Tappe, 139 N.C. App. 33, 36—37, 533 S.E.2d 262, 264

(2000) (citations and quotation omitted).

Defendant argues the trial court erred in denying his

motion to suppress for lack of probable cause because “there was

no set of facts in the case at hand that would lead a

reasonable, cautious person to believe that [defendant] was

driving while impaired.” Defendant’s argument lacks merit, as

the evidence supports the trial court’s determination that

Officer Davis had probable cause to arrest defendant.

In its order denying defendant’s motion to suppress for

lack of probable cause, the trial court noted that when Officer

-15-

Davis stopped defendant at the checkpoint, he immediately

noticed that defendant had “bloodshot eyes and a moderate odor

of alcohol about his breath.” Defendant admitted to “drinking a

couple of beers earlier” and had “stopped drinking about an

hour” prior to being stopped at the checkpoint. Two alco-sensor

tests administered to defendant yielded positive results, and

defendant exhibited clues indicating impairment on three field

sobriety tests. Officer Davis determined that defendant was

“under the influence of some impairing substance,” regardless of

the positive alco-sensor test results. The trial court further

acknowledged Officer Davis’ twenty-two years’ experience as a

police officer.

Defendant argues that because he did not exhibit signs of

intoxication such as slurred speech, glassy eyes, or physical

instability, there was insufficient probable cause for Officer

Davis to arrest defendant for driving while impaired. We are

not persuaded; as this Court has held, the odor of alcohol on a

defendant’s breath, coupled with a positive alco-sensor result,

is sufficient for probable cause to arrest a defendant for

driving while impaired. See State v. Rogers, 124 N.C. App. 364,

369—70, 477 S.E.2d 221, 224 (1996); see also State v. Fuller,

176 N.C. App. 104, 109, 626 S.E.2d 655, 658 (2006) (“The results

-16-

of an alcohol screening test may be used by an officer to

determine if there are reasonable grounds to believe that a

driver has committed an implied-consent offense[.]” (citations

and quotation omitted)). Here, Officer Davis noted that

defendant had bloodshot eyes, emitted an odor of alcohol,

exhibited clues as to intoxication on three field sobriety

tests, and gave positive results on two alco-sensor tests. As

such, there was sufficient probable cause for Officer Davis to

arrest defendant for driving while impaired.

III.

Defendant next argues that the trial court abused its

discretion in denying his request to redact evidence of the

alco-sensor test. Specifically, defendant contends the trial

court’s admission of the alco-sensor test’s numerical results

was an abuse of discretion, thus entitling him to a new trial.

We disagree.

On appellate review, “[a] trial court may be reversed for

abuse of discretion only upon a showing that its actions are

manifestly unsupported by reason.” State v. Rasmussen, 158 N.C.

App. 544, 555, 582 S.E.2d 44, 53 (2003) (citation omitted).

Although the results of a defendant’s alco-sensor test are

not admissible as substantive evidence, State v. Bartlett, 130

-17-

N.C. App. 79, 82, 502 S.E.2d 53, 55 (1998), an officer who

arrests a defendant for driving while impaired may testify that

a defendant’s alco-sensor test indicated the presence of

alcohol. Fuller, 176 N.C. App. at 109, 626 S.E.2d at 658.

Defendant contends the trial court abused its discretion

during the pre-trial hearing by allowing into evidence the

numerical results of defendant’s alco-sensor test. During the

pre-trial hearing, the results of the alco-sensor test were

offered to the trial court as part of Officer Davis’s paperwork

which was submitted to the magistrate; the paperwork was

proffered by the State to show that Officer Davis had probable

cause to arrest defendant for driving while impaired.

Specifically, Officer Davis’ arrest affidavit described how he

encountered defendant, his observations of defendant,

defendant’s performance on the field sobriety tests, and the

numerical results of defendant’s alco-sensor test. This

admission of the actual numerical results of defendant’s alco-

sensor test was error, as only “a positive or negative result on

an alcohol screen test” may be admissible in court. See N.C.

Gen. Stat. § 20-16.3 (2013) (“The fact that a driver showed a

positive or negative result on an alcohol screening test, but

-18-

not the actual alcohol concentration result . . . is admissible

in a court[.]”).

However, while we note the technical violation of the

statute, we do not agree with defendant that this violation

entitles him to a new trial. “A mistrial is appropriate only

when there are such serious improprieties as would make it

impossible to attain a fair and impartial verdict under the

law.” State v. Blackstock, 314 N.C. 232, 243—44, 333 S.E.2d 245,

252 (1985) (citation omitted).

Here, the numerical results of defendant’s alco-sensor test

were admitted into evidence only during the trial court’s pre-

trial hearing on defendant’s motions to suppress and dismiss;

the results were never introduced into evidence before the jury.

Moreover, even without the results of the alco-sensor test, the

State presented sufficient evidence, via the testimony of

Officer Davis, to survive defendant’s motion to dismiss for lack

of probable cause. As such, despite committing a technical

statutory violation by admitting the numerical results of

defendant’s alco-sensor test, the trial court did not err in

denying defendant’s motion to dismiss for lack of probable

cause.

-19-

Further, when Officer Davis testified at trial before the

jury as to the circumstances under which he encountered and

eventually arrested defendant for driving while impaired,

Officer Davis did not discuss defendant’s alco-sensor test other

than to state that defendant was administered a preliminary

breath test along with field sobriety tests as part of Officer

Davis’ investigation. When asked at trial about how he came to

form an opinion as to defendant’s state of being on the evening

of 21 October 2010, Officer Davis did not mention the alco-

sensor test at all:

Based on my conversation with [defendant],

with the physical observations of

[defendant] when I was talking to him at the

car, based on [defendant’s] standardized

field sobriety tests, I did form the

conclusion or the opinion that [defendant]

had consumed a sufficient amount of some

impairing substance so as to appreciably

impair his mental and/or physical faculties.

Indeed, despite defendant’s contentions to the contrary, the

actual numerical results of his alco-sensor test were never

admitted into evidence at trial before the jury. Therefore,

because this evidence was never admitted before the jury, it

could not and did not cause defendant to receive an unfair

verdict that would entitle him to a new trial. Defendant’s

argument is therefore overruled.

-20-

IV.

Finally, defendant contends the trial court erred in

denying his motion to suppress evidence resulting from the

checkpoint. We disagree.

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.

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

87 (2008) (citations and quotations omitted).

Defendant argues the trial court erred in denying his

motion to suppress evidence resulting from the checkpoint

because the checkpoint lacked an acceptable primary purpose and

was, therefore, unconstitutional. In its order denying

defendant’s motion to suppress, the trial court made the

following findings of fact:

The Court considered all evidence presented,

as well as the arguments and contentions of

counsel, and makes the following findings of

fact by a preponderance of the evidence:

-21-

1. The Charlotte Mecklenburg Police

Department, under supervision of Sgt. David

Sloan, set up a DWI check point near [the]

7200 block of Providence Road between 11pm

October 21, 2010 and 3am October 22, 2010.

2. Sgt. Sloan chose the location because

over 30 traffic fatalities had occurred in

the vicinity since 2006, with about half of

those involving impaired driving.

3. The area is near the Arboretum Shopping

Center, which houses several restaurants and

other businesses which serve or sell

alcohol.

4. The check point was set up in compliance

with NCGS 20-16.3A: there was a written

plan; Sgt. Sloan briefed the 25 officers

from 6 different agencies who were operating

the checkpoint; every vehicle was to be

stopped and was stopped; signs notifying

approaching motorists of a DWI check point

ahead were placed approximately 200 yards

from [the] check point; [and] non-impaired

drivers were only delayed about 15 seconds

each.

The trial court then concluded that the checkpoint was proper

and denied defendant’s motion to suppress.

Defendant contends the trial court erred in denying his

motion to suppress because the State failed to meet its burden

of demonstrating the checkpoint was set-up for anything other

than the improper purpose of general crime detection.

Defendant’s argument lacks merit, as during the pre-trial

hearing on defendant’s motion to suppress, the State presented

-22-

testimony by Sergeant Sloan regarding the checkpoint. Sergeant

Sloan testified that the checkpoint was administered according

to a written plan, and that the date for the checkpoint had been

selected almost a year prior to that date based on when the

Blood Alcohol Testing mobile lab would be available. Sergeant

Sloan further testified that the location of the checkpoint, in

the 7200 block of Providence Road, was chosen because of the

statistically high number of impaired driving offenses and

fatalities that had occurred in the Providence Road and Highway

55 corridor. Further, Sergeant Sloan stated that the main

purpose of the checkpoint was to check for DWIs.

We agree with the trial court’s findings that the

checkpoint was conducted for a legitimate primary purpose, as

the record indicates the checkpoint was established, pursuant to

N.C. Gen. Stat. § 20-16.3, to check all passing drivers for DWI

violations. See N.C.G.S. § 20-16.3 (2013) (permitting law

enforcement agencies to set-up DWI checkpoints provided such

checkpoints are administered according to established, written

plans, are well-marked for drivers, and detain all passing

drivers only to the extent necessary to determine if reasonable

suspicion exists that a driver has committed a DWI violation).

Defendant further contends the trial court erred in denying

-23-

his motion to suppress because the checkpoint was unreasonable

and therefore unconstitutional. After finding a legitimate

programmatic purpose, the trial court must 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 quotation omitted).

“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

-24-

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).

Here, the State presented evidence that the checkpoint was

intended to screen all passing drivers for DWI violations. When

Officer Davis stopped defendant at the checkpoint, Officer Davis

noticed defendant had red, bloodshot eyes and emitted a

“moderate odor of alcohol.” When Officer Davis asked defendant

if defendant had been drinking that evening, defendant responded

that he had consumed several beers. Officer Davis then asked

defendant to take an alco-sensor test and perform several field

sobriety tests. As such, the first Brown factor was met. See

State v. Kostick, ___ N.C. App. ___, ___, 755 S.E.2d 411, 420

(2014) (finding the first Brown factor was met where an officer

stopped the defendant at a checkpoint and noticed the defendant

had red, bloodshot eyes, emitted an odor of alcohol, and

admitted to drinking that evening); 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[.]” (citation and

quotation omitted)).

The second Brown prong examines “the degree to which the

-25-

seizure advance[s] the public interest,” and requires the trial

court to 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 (citations and

quotations 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

ending time; and whether police offered any

reason why that particular time span was

selected.

Id. (citation omitted).

In its findings of fact, the trial court found that the

checkpoint had fixed starting and ending times; the checkpoint

was located in the 7200 block of Providence Road, an area

located within a mile of a major shopping area where there are

businesses which serve or sell alcohol; the checkpoint’s

location was selected based on impaired driving statistics; and

the checkpoint was conducted according to a written plan, was

properly marked, and was intended to stop all passing drivers to

check for impaired driving violations. These findings of fact

-26-

are supported by the evidence and “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

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 (citations 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

-27-

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. (citation and quotation omitted).

As previously discussed, in its findings of fact the trial

court noted the following:

4. The check point was set up in compliance

with NCGS 20-16.3A: there was a written

plan; Sgt. Sloan briefed the 25 officers

from 6 different agencies who were operating

the checkpoint; every vehicle was to be

stopped and was stopped; signs notifying

approaching motorists of a DWI check point

ahead were placed approximately 200 yards

from [the] check point; [and] non-impaired

drivers were only delayed about 15 seconds

each.

Such findings meet the third factor of Brown, as “the totality

of the circumstances in examining the reasonableness of [the]

checkpoint” was examined and set forth by the trial court in its

order. See Kostick, ___ N.C. App. at ___, 755 S.E.2d at 421

(citation omitted) (holding that where the record showed the

trial court heard and weighed the evidence regarding whether a

DWI checkpoint was established for a legitimate primary purpose

-28-

and the checkpoint stops were reasonable, advanced an important

public interest, and were conducted pursuant to a written plan,

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

evidence of the checkpoint was affirmed). Therefore, as the

trial court determined the checkpoint had a legitimate primary

purpose and that the Brown factors were met, defendant’s

argument is accordingly overruled.

No error.

Judges CALABRIA and GEER concur.