Monday, May 02, 2011

DUI Appeal - NC Roadblock Challenged for Unlawful Purpose

In State of North Carolina v. Nolan, --- S.E.2d ----, 2011 WL 1467572 (N.C.App.) the defendant appealed the validity of a roadblock, alleging that its primary purpose was unlawful, i.e. general crime control. A roadblock whose primary purpose is general crime control is unconstitutional under the US Supreme Court case of City of Indianapolis v. Edmond.

The defendant was stopped at the checkpoint. Deputy J. Moore (“Deputy Moore”) of the FCSD, one of the officers assigned to the checkpoint, approached defendant's vehicle and asked defendant for his license. As Deputy Moore spoke with defendant, he detected an odor of alcohol. Deputy Moore asked defendant “about the odor, and he said he had not been drinking.” Deputy Moore then asked defendant “about ... a six-pack of Budweiser Select” which Deputy Moore observed “in the back seat with two bottles missing.” When Deputy Moore asked defendant about the missing bottles, defendant admitted he “had a couple earlier.” Deputy Moore then asked defendant to exit the vehicle, which he did. Deputy Moore then advised defendant that he was going to conduct a field sobriety test and asked defendant to “pull the stuff out of his pockets.”

Defendant prepared for the field sobriety test by removing the objects from his pants pockets. As defendant removed a sunglasses case from his pants pocket, a second officer, Deputy J. Bracken (“Deputy Bracken”) of the FCSD, who was assigned to the checkpoint, observed a plastic bag containing a substance which appeared to be marijuana. Deputy Bracken asked defendant, “What's the plastic baggie?” and defendant replied, “Uh, oh.” Deputy Bracken searched defendant and the search revealed another plastic bag, a glass pipe, and a lighter. A K–9 officer approached with a K–9 dog, to detect the presence of drugs in the vehicle. When officers searched defendant's vehicle, they discovered multiple items of contraband, including drugs.

The appeals court then reviewed the defendants assertion that the purose of the roadblock was illegal crime control and/or drug interdicition. "When considering a challenge to a vehicle 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, and 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." In so determining, the appeals court wrote:

"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[.]"

The court concluded that the primary purpose of the roadblock herein was the detection of impaired drivers. The court found that the police officer's testimony regarding the primary programmatic purpose of the driver's license checkpoint, as supplemented by written checkpoint plan, supported the trial court's finding that the primary programmatic purpose of the checkpoint was the detection of drivers operating a motor vehicle while impaired, and not merely to further general crime control.

Additionally, the court found the police order for the defendant to empty his pockets reasonable:

"When Deputy Moore noticed defendant was carrying a small knife, he asked defendant about a bulge in defendant's pants pocket. Defendant then emptied his pockets, and Deputy Bracken observed in plain view a clear bag containing a substance which he believed to be marijuana. Although defendant was not charged with driving while impaired, he possessed a weapon, drugs, and drug paraphernalia. The actions taken by Deputies Moore and Bracken were reasonably necessary to maintain their safety during the operation of the checkpoint."

EDITORS NOTE: What was't specifically addressed was whether the initial order to exit, which was based only on an unquantified odor of alcohol and two missing bottles of beer from a six-pack, was reasonable. The US Supreme Court in Michigan v. Sitz did suggest that something more than the suspicionless seizure itself would be required to pull motorists out of their cars, and this point was notferreted out in the courts opinion herein.

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