{ "id": 4160053, "name": "STATE OF NORTH CAROLINA v. FRED GABRIEL", "name_abbreviation": "State v. Gabriel", "decision_date": "2008-09-02", "docket_number": "No. COA08-59", "first_page": "517", "last_page": "523", "citations": [ { "type": "official", "cite": "192 N.C. App. 517" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "662 S.E.2d 683", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641411 ], "weight": 10, "year": 2008, "pin_cites": [ { "page": "686" }, { "page": "687-88", "parenthetical": "internal citations and quotations omitted" }, { "page": "689" }, { "page": "688", "parenthetical": "citations and quotations omitted" }, { "page": "689", "parenthetical": "citation omitted" }, { "page": "689" }, { "page": "687" } ], "opinion_index": 0, "case_paths": [ "/se2d/662/0683-01" ] }, { "cite": "617 S.E.2d 656", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633725, 12633726, 12633727 ], "weight": 4, "year": 2005, "pin_cites": [ { "parenthetical": "citation and quotation omitted" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/617/0656-01", "/se2d/617/0656-02", "/se2d/617/0656-03" ] }, { "cite": "359 N.C. 641", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3804769, 3800802, 3798753, 3802729, 3801482, 3795307, 3800722 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0641-02", "/nc/359/0641-06", "/nc/359/0641-03", "/nc/359/0641-01", "/nc/359/0641-07", "/nc/359/0641-04", "/nc/359/0641-05" ] }, { "cite": "612 S.E.2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632813 ], "weight": 9, "year": 2005, "pin_cites": [ { "page": "339" }, { "page": "339" }, { "page": "342" }, { "page": "339", "parenthetical": "citation and quotation omitted" }, { "page": "339", "parenthetical": "citation and quotation omitted" }, { "page": "342" }, { "page": "342", "parenthetical": "citation and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/612/0336-01" ] }, { "cite": "656 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640334, 12640335 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/656/0281-01", "/se2d/656/0281-02" ] }, { "cite": "362 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12640330, 12640331, 12640332, 12640333, 12640334, 12640211, 12640351 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/656/0279-02", "/se2d/656/0280-01", "/se2d/656/0280-02", "/se2d/656/0280-03", "/se2d/656/0281-01", "/se2d/655/0406-01", "/se2d/656/0592-02" ] }, { "cite": "649 S.E.2d 646", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639267 ], "pin_cites": [ { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0646-01" ] }, { "cite": "531 U.S. 32", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9505377 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "40-42" }, { "page": "343" } ], "opinion_index": 0, "case_paths": [ "/us/531/0032-01" ] }, { "cite": "191 N.C. App. 181", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4159195 ], "weight": 4, "year": 2008, "pin_cites": [ { "page": "185" }, { "page": "187" }, { "page": "187" }, { "page": "195" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0181-01" ] }, { "cite": "170 N.C. App. 284", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9005095 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "288" }, { "page": "293" }, { "page": "289" }, { "page": "293" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0284-01" ] }, { "cite": "185 N.C. App. 701", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8212517 ], "pin_cites": [ { "page": "702" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0701-01" ] } ], "analysis": { "cardinality": 605, "char_count": 13816, "ocr_confidence": 0.751, "pagerank": { "raw": 9.277962688815331e-08, "percentile": 0.511853586830738 }, "sha256": "8929ad7596f87442aa8687ad3defd5c62cf025a78e490229edb6f0e489b6fa65", "simhash": "1:8729e66c456e05b7", "word_count": 2142 }, "last_updated": "2023-07-14T14:54:33.452279+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and ELMORE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. FRED GABRIEL" ], "opinions": [ { "text": "TYSON, Judge.\nFred Gabriel (\u201cdefendant\u201d) appeals from an order entered denying his motion to suppress. We vacate the order appealed from and remand this case to the trial court to enter further findings of fact and conclusions of law.\nI. Background\nOn 23 August 2006, Trooper C.J. White (\u201cTrooper White\u201d) and other members of the North Carolina State Highway Patrol established a driver\u2019s license checkpoint at the intersection of Highway 1-85 and Glenwood Drive in Charlotte, North Carolina. Several armed robberies had occurred near this area the preceding week. In the most recent incident, the suspects were last seen driving a stolen sports utility vehicle in the vicinity of the checkpoint\u2019s location.\nIn accordance with State Highway Patrol policies, Sergeant Fred Hardgro was notified of the checkpoint\u2019s location. The checkpoint began between 9:00 and 10:00 p.m. As vehicles approached the checkpoint, they were stopped and the occupants were asked to produce a valid driver\u2019s license and vehicle registration \u201cunless the traffic [did not] allow it.\u201d Each motorist was detained for a period no longer than required to produce and verify their license and registration. Citations were issued for any violations the checkpoint produced.\nAt approximately 11:00 p.m., defendant approached the checkpoint and was asked by Trooper White to produce his driver\u2019s license and vehicle registration. Trooper White testified he detected a strong odor of alcohol both on defendant\u2019s breath and emanating from defendant\u2019s vehicle. Trooper White also observed that defendant had \u201cred glassy eyes\u201d and \u201cslurred speech.\u201d Defendant was directed to place his vehicle in park and exit the vehicle. Defendant exited his vehicle with its transmission still in drive. Trooper White testified that defendant was unsteady on his feet and used the vehicle for support to remain standing. When Trooper White reached out to assist him, defendant responded \u201cI\u2019m okay, I will not fall; I\u2019m not high; I\u2019m not high.\u201d\nDefendant was subsequently issued citations for driving while impaired and driving while license revoked. In district court, defendant pled guilty to driving while impaired and the trial court imposed a suspended sentence of 120 days imprisonment and placed defendant on unsupervised probation for a period of 12 months. Defendant gave notice of appeal to the superior court. On 23 February 2007, defendant filed a motion to suppress the evidence obtained at the checkpoint on the ground that the checkpoint was unconstitutional.\nOn 3 April 2007, after the motion to suppress hearing, the superior court denied defendant\u2019s motion. Defendant pled guilty to driving while impaired and driving while license revoked, reserving the right to appeal the trial court\u2019s adverse ruling on his motion to suppress. The trial court imposed a suspended sentence of 120 days imprisonment and defendant was placed on unsupervised probation for a period of 24 months for his driving while impaired charge. The trial court also imposed a suspended sentence of 45 days imprisonment for defendant\u2019s driving while license revoked charge. Defendant appeals.\nII.Issue\nDefendant argues the trial court erred by denying his motion to suppress.\nIII.Standard of Review\nThis Court has stated:\nThe trial court\u2019s findings of fact regarding a motion to suppress are conclusive and binding on appeal if supported by competent evidence. This Court determines if the trial court\u2019s findings of fact support its conclusions of law. Our review of a trial court\u2019s conclusions of law on a motion to suppress is de novo.\nState v. Edwards, 185 N.C. App. 701, 702, 649 S.E.2d 646, 648 (internal citations and quotations omitted), disc. rev. denied, 362 N.C. 89, 656 S.E.2d 281 (2007).\nIV.Motion to Suppress\nDefendant asserts the trial court erred by denying his motion to suppress the evidence obtained at the 23 August 2006 checkpoint. Defendant argues the primary purpose of the driver\u2019s license checkpoint was unconstitutional, any seizure that occurred when his vehicle was stopped was unlawful and his rights under the Fourth and Fourteenth Amendments of the United States Constitution and Article 1, \u00a7\u00a7 19, 21, and 23 of the North Carolina Constitution were violated.\nIt is well-established that police officers effectuate a \u201cseizure\u201d under the Fourth Amendment when they stop a vehicle at a driver\u2019s license checkpoint. State v. Rose, 170 N.C. App. 284, 288, 612 S.E.2d 336, 339, disc. rev. denied, 359 N.C. 641, 617 S.E.2d 656 (2005). In order to conform with the Fourth and Fourteenth Amendments, the checkpoint must be \u201creasonable.\u201d Id. \u201cA search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing.\u201d Id. (citation and quotation omitted). However, the general requirement of individualized suspicion is not necessary under certain situations, including: (1) checkpoints, which screen for driver\u2019s license and vehicle registration violations; (2) \u201csobriety checkpoints^]\u201d and (3) checkpoints designed to intercept illegal aliens. Id. (citations omitted).\nConversely, \u201c[s]tops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime []\u201d are unconstitutional and cannot be sanctioned by this Court. Id. at 289, 612 S.E.2d at 339. Further, a checkpoint with an unlawful primary purpose will not become constitutional when coupled with a lawful secondary purpose. See State v. Veazey, 191 N.C. App. 181, 185, 662 S.E.2d 683, 686 (2008) (\u201c[A] checkpoint with an invalid primary purpose, such as checking for illegal narcotics, cannot be saved by adding a lawful secondary purpose to the checkpoint, such as checking for intoxicated drivers. Otherwise, . . . law enforcement authorities would be able to establish checkpoints for virtually any purpose so long as they also included a license or sobriety check.\u201d (Citations and quotations omitted)).\n\u201cWhen considering a challenge to a checkpoint, the reviewing court must undertake a two-part inquiry to determine whether the checkpoint meets constitutional requirements.\u201d Id. The court must first \u201cdetermine the primary programmatic purpose of the checkpoint program.\u201d Id. (citing City of Indianapolis v. Edmond, 531 U.S. 32, 40-42, 148 L. Ed. 2d 333, 343 (2000)). Once a legitimate primary programmatic purpose is determined, the court must also analyze whether the checkpoint was reasonable by weighing the public\u2019s interest in the checkpoint against the intrusion on the defendant\u2019s Fourth and Fourteenth Amendments privacy interests. Rose, 170 N.C. App. at 293, 612 S.E.2d at 342.\nA. Primary Programmatic Purpose\nIn considering the constitutionality of a checkpoint, the trial court must initially \u201cexamine the available evidence to determine the purpose of the checkpoint program.\u201d Id. at 289, 612 S.E.2d at 339 (citation and quotation omitted). This Court recently stated:\nwhere there is no evidence in the record to contradict the State\u2019s proffered purpose for a checkpoint, a trial court may rely on the testifying police officer\u2019s 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\u2019s bare statements as to a checkpoint\u2019s purpose.\nVeazey, 191 N.C. App. at 187, 662 S.E.2d at 687-88 (internal citations and quotations omitted) (emphasis supplied). We also further held that when a trooper\u2019s testimony varies concerning the primary purpose of the checkpoint, the trial court is \u201crequired to make findings regarding the actual primary purpose of the checkpoint and ... to reach a conclusion regarding whether this purpose was lawful.\u201d Id. at 190, 662 S.E.2d at 689.\nHere, the State\u2019s evidence at the motion to suppress hearing consisted solely of Trooper White\u2019s testimony. During the hearing, Trooper White testified that \u201c[t]he reason for that particular checkpoint . . . [was] we had several armed robberies within the area . . . [t]hey were all last seen or last sighting [sic] were in that approximate area.\u201d However, Trooper White also testified that \u201c[t]here\u2019s no systematic plan of what we were particularly looking for[] ... [t]he purpose of the checkpoint was to issue citations for anything that came through. If we just so happen to have that [stolen] vehicle come through, I mean, within that immediate area, but we don\u2019t particularly investigate robberies.\u201d (Emphasis supplied).\nAfter Trooper White\u2019s cross-examination, the State attempted to submit to the trial court that the primary programmatic purpose of the checkpoint was to \u201cstop and check individual\u2019s driver\u2019s license, registration, etcetera [sic] [.]\u201d The trial court acknowledged the vari anees in Trooper White\u2019s testimony by stating: \u201cat one point [Trooper White] did say that, but at one point he said that there was nothing that [they] were looking for in particular. No systematic plan of what they were going to do.\u201d Because Trooper White\u2019s testimony varied regarding the primary programmatic purpose of the checkpoint, the trial court could \u201cnot simply accept the State\u2019s invocation of a proper purpose, but instead [was required to] carry out a close review of the scheme at issue.\u201d Rose, 170 N.C. App. at 289, 612 S.E.2d at 339 (citation and quotation omitted).\nThis type of searching inquiry is required \u201cto ensure 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.\u201d Veazey, 191 N.C. App. at 187, 662 S.E.2d at 688 (citations and quotations omitted). Without independent findings of fact regarding the actual primary purpose of the checkpoint, \u201cthe trial court could not. . . issue a conclusion regarding whether . . . the checkpoint was lawful.\u201d Id. at 190, 662 S.E.2d at 689 (citation omitted).\nThe record on appeal is devoid of a written order containing the requisite findings of fact and conclusions of law. The trial court also failed to enunciate its findings and conclusions in open court. The only evidence to indicate the trial court denied defendant\u2019s motion to suppress, is its statement \u201c[m]y understanding is that you\u2019re going to plead guilty to these charges, because I have ruled against you on your Motion to Suppress.\u201d\nBecause the trial court denied defendant\u2019s motion to suppress without making any findings of fact or conclusions of law regarding the checkpoint\u2019s primary programmatic purpose, we are unable to determine the constitutionality of the checkpoint. Id. at \u2014, 662 S.E.2d at 689. We vacate the order appealed from and remand this case to the trial court to take additional evidence and enter the required findings of fact and conclusions of law regarding the primary programmatic purpose of the checkpoint.\nB. Reasonableness\nIf the trial court finds that the primary programmatic purpose of the checkpoint was lawful, its inquiry does not end with that finding. Rose, 170 N.C. App. at 293, 612 S.E.2d at 342. The trial court must also determine whether the checkpoint was reasonable based upon the individual circumstances of each case. Id.\nTo determine whether the checkpoint was reasonable, the trial court must weigh the public\u2019s interest in the checkpoint against the individual\u2019s Fourth and Fourteenth Amendments privacy interests. Id. When conducting this balancing inquiry the court should examine: \u201c(1) the gravity of the public concern 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.\u201d Id. at 293-94, 612 S.E.2d at 342 (citation and quotation omitted). If these factors weigh in favor of the public interest, the checkpoint is reasonable and constitutional. Veazey, 191 N.C. App. at 195, 662 S.E.2d at 687. On remand, if the trial court finds that the checkpoint had a proper primary programmatic purpose, it must also enter findings of fact and conclusions of law regarding the reasonableness of the checkpoint.\nV. Conclusion\nThe trial court is required to take additional evidence and enter findings of fact and conclusions of law regarding the primary programmatic purpose and the reasonableness of the driver\u2019s license checkpoint. Because defendant pled guilty to driving while impaired and driving while license revoked subject to the court\u2019s adverse ruling on his motion to suppress, we vacate defendant\u2019s convictions and the judgments entered thereon. This case is remanded to the trial court for further proceedings not inconsistent with this opinion.\nVacated and Remanded.\nJudges CALABRIA and ELMORE concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Appeal by defendant from judgments entered 3 April 2007 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 20 August 2008.", "Attorney General Roy Cooper, by Assistant Attorney General Sebastian Kielmanovich, for the State.", "Janna D. Allison, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. FRED GABRIEL\nNo. COA08-59\n(Filed 2 September 2008)\nSearch and Seizure\u2014 driver license checkpoint \u2014 motion to suppress \u2014 primary programmatic purpose \u2014 reasonableness\nThe trial court erred in a driving while impaired and driving while license revoked case by denying defendant\u2019s motion to suppress evidence obtained at a driver license checkpoint without making findings of fact as to the primary purpose and reasonableness of the check point. Defendant\u2019s convictions are vacated and the case is remanded to the trial court for findings of fact and conclusions of law regarding the checkpoint\u2019s primary programmatic purpose. If the trial court finds the primary programmatic purpose of the checkpoint was lawful, it must also determine whether the checkpoint was reasonable based upon the individual circumstances of the case.\nAppeal by defendant from judgments entered 3 April 2007 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 20 August 2008.\nAttorney General Roy Cooper, by Assistant Attorney General Sebastian Kielmanovich, for the State.\nJanna D. Allison, for defendant-appellant." }, "file_name": "0517-01", "first_page_order": 545, "last_page_order": 551 }