{ "id": 3805973, "name": "STATE OF NORTH CAROLINA v. JOHN ROSCOE NOLAN", "name_abbreviation": "State v. Nolan", "decision_date": "2011-04-19", "docket_number": "No. COA10-518", "first_page": "109", "last_page": "124", "citations": [ { "type": "official", "cite": "211 N.C. App. 109" } ], "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": "443 U.S. 47", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6179718 ], "opinion_index": -1, "case_paths": [ "/us/443/0047-01" ] }, { "cite": "665 S.E.2d 581", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641760 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "585", "parenthetical": "quoting Rose, 170 N.C. App. at 289, 612 S.E.2d at 339" }, { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/se2d/665/0581-01" ] }, { "cite": "662 S.E.2d 683", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641411 ], "weight": 15, "year": 2008, "pin_cites": [ { "page": "686", "parenthetical": "citations omitted" }, { "page": "686-87", "parenthetical": "internal quotations and citations omitted" }, { "page": "687-88", "parenthetical": "internal quotations and citations omitted" }, { "page": "689" }, { "page": "689" }, { "page": "686" }, { "page": "689-90" }, { "page": "690", "parenthetical": "internal quotations and citations omitted" }, { "page": "686" }, { "page": "690" }, { "page": "690" }, { "page": "690-91" }, { "page": "691" } ], "opinion_index": 0, "case_paths": [ "/se2d/662/0683-01" ] }, { "cite": "612 S.E.2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632813 ], "weight": 11, "year": 2005, "pin_cites": [ { "page": "339", "parenthetical": "quoting State v. Mitchell, 358 N.C. 63, 66, 592 S.E.2d 543, 545 (2004)" }, { "page": "339" }, { "page": "342" }, { "page": "342" }, { "page": "342" }, { "page": "342", "parenthetical": "internal quotations and citation omitted" }, { "page": "342" }, { "page": "345" } ], "opinion_index": 0, "case_paths": [ "/se2d/612/0336-01" ] }, { "cite": "857 F.2d 210", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10525841 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/f2d/857/0210-01" ] }, { "cite": "192 N.C. App. 517", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4160053 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "521", "parenthetical": "quoting Rose, 170 N.C. App. at 289, 612 S.E.2d at 339" }, { "page": "521" } ], "opinion_index": 0, "case_paths": [ "/nc-app/192/0517-01" ] }, { "cite": "191 N.C. App. 181", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4159195 ], "weight": 11, "year": 2008, "pin_cites": [ { "page": "184", "parenthetical": "citations omitted" }, { "page": "185-86" }, { "page": "187" }, { "page": "190" }, { "page": "189" }, { "page": "185" }, { "page": "191" }, { "page": "191" }, { "page": "191" }, { "page": "191" }, { "page": "192" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0181-01" ] }, { "cite": "592 S.E.2d 543", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "545" } ], "opinion_index": 0 }, { "cite": "358 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987590 ], "year": 2004, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0063-01" ] }, { "cite": "170 N.C. App. 284", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9005095 ], "weight": 8, "year": 2005, "pin_cites": [ { "page": "288", "parenthetical": "quoting State v. Mitchell, 358 N.C. 63, 66, 592 S.E.2d 543, 545 (2004)" }, { "page": "289" }, { "page": "293" }, { "page": "293" }, { "page": "293" }, { "page": "293-94" }, { "page": "294" }, { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0284-01" ] }, { "cite": "459 S.E.2d 55", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "57", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 562", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916476 ], "year": 1995, "pin_cites": [ { "page": "565", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0562-01" ] }, { "cite": "357 S.E.2d 641", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "650", "parenthetical": "internal citation omitted" } ], "opinion_index": 0 }, { "cite": "320 N.C. 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725713 ], "year": 1987, "pin_cites": [ { "page": "290", "parenthetical": "internal citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0276-01" ] }, { "cite": "683 S.E.2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "205", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "363 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151061 ], "year": 2009, "pin_cites": [ { "page": "433-34", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0382-01" ] }, { "cite": "443 U.S. 47", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6179718 ], "weight": 3, "pin_cites": [ { "page": "50" }, { "page": "361" }, { "page": "2640" } ], "opinion_index": 0, "case_paths": [ "/us/443/0047-01" ] } ], "analysis": { "cardinality": 1130, "char_count": 37908, "ocr_confidence": 0.742, "pagerank": { "raw": 4.7492960360752035e-08, "percentile": 0.29823070765901794 }, "sha256": "d2bd1deca7efdf8d0b5015848ce496c628bade848e30e477d573d6d877627e4c", "simhash": "1:91a1f5dc35f71b92", "word_count": 5890 }, "last_updated": "2023-07-14T21:31:50.212435+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, Robert C. and GEER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JOHN ROSCOE NOLAN" ], "opinions": [ { "text": "CALABRIA, Judge.\nJohn Roscoe Nolan (\u201cdefendant\u201d) appeals the trial court\u2019s judgment for the offenses of possession with intent to sell or deliver marijuana, possession of drug paraphernalia, carrying a concealed weapon, and maintaining a vehicle or dwelling used for keeping and selling controlled substances. More specifically, defendant appeals the trial court\u2019s denial of his motion to suppress evidence. We affirm.\nI. BACKGROUND\nAt approximately 11:00 p.m. on 6 July 2007, law enforcement officers from the Kernersville Police Department (\u201cKPD\u201d), King Police Department, Winston-Salem Police Department, Forsyth County Sheriff\u2019s Department (\u201cFCSD\u201d), and the North Carolina Highway Patrol participated in a checking station (\u201cthe checkpoint\u201d) at the intersection of the 800 block of South Main Street and the 800 block of Old Winston Road, \u201ca main thoroughfare\u201d in Kernersville, North Carolina. The purpose of the checkpoint was \u201c[t]o determine compliance with the Motor Vehicle Code.\u201d The ultimate goal of this combined effort was to reduce crashes, injuries, and deaths from impaired driving offenses.\nOfficer L.D. Griffith (\u201cOfficer Griffith\u201d) of the Traffic Enforcement Division of the KPD scheduled the checkpoint that was established pursuant to a written \u201cChecking Station Plan\u201d (\u201cthe plan\u201d). Officer Griffith obtained a form memorandum from the Governor\u2019s Highway Safety Program (\u201cthe standard plan\u201d) which he adapted to serve as a checklist, and then submitted the memorandum regarding the plan to all participating law enforcement officers. The plan included the starting and ending times of the checkpoint. It was scheduled to start at 11:00 p.m. on 6 July 2007 and end at 3:00 a.m. on 7 July 2007. In addition to the times of operation, the plan described the procedures and equipment to be used. The plan also included briefing all participants regarding the procedures, equipment, location, and times of operation of the checkpoint. More importantly, the plan required the officers to stop every vehicle coming through the checkpoint. Once stopped, the officers were directed to ask every driver to produce his or her license and vehicle registration, then to tell the officer their destination.\nOn 7 July 2007 at midnight, Officer Griffith was present and supervised the checkpoint, and approximately thirty officers in twenty to twenty-five marked patrol cars were assigned to the checkpoint. At that time, defendant drove a Pontiac Bonneville (\u201cthe vehicle\u201d) and was stopped at the checkpoint. Deputy J. Moore (\u201cDeputy Moore\u201d) of the FCSD, one of the officers assigned to the checkpoint, approached defendant\u2019s vehicle and asked defendant for his license. As Deputy Moore spoke with defendant, he detected an odor of alcohol. Deputy Moore asked defendant \u201cabout the odor, and he said he had not been drinking.\u201d Deputy Moore then asked defendant \u201cabout... a six-pack of Budweiser Select\u201d which Deputy Moore observed \u201cin the back seat with two bottles missing.\u201d When Deputy Moore asked defendant about the missing bottles, defendant admitted he \u201chad a couple earlier.\u201d Deputy Moore then asked defendant to exit the vehicle, and as defendant exited, Deputy Moore observed a \u201cclip knife\u201d on defendant\u2019s pocket. Deputy Moore then advised defendant that he was going to conduct a field sobriety test and asked defendant to \u201cpull the stuff out of his pockets.\u201d\nDefendant 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 (\u201cDeputy Bracken\u201d) 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, \u201cWhat\u2019s the plastic baggie?\u201d and defendant replied, \u201cUh, oh.\u201d 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\u2019s vehicle, they discovered multiple items of contraband, including drugs.\nDefendant was arrested, indicted, and later pled guilty to two counts of possession with intent to sell or deliver marijuana, possession of drug paraphernalia, carrying a concealed weapon, and maintaining a vehicle or dwelling used for keeping and selling controlled substances.\nPrior to defendant\u2019s guilty plea, defendant filed a motion to suppress evidence (\u201cthe first motion\u201d) in Forsyth County Superior Court. Defendant challenged the checkpoint, arguing that it \u201cwas not set up, conducted or maintained pursuant to a valid programmatic purpose and its operation and management did not meet the constitutional requirements set out under the Fourth and Fourteenth Amendments to the United States Constitution....\u201d Furthermore, defendant asked the trial court: (1) to suppress all evidence obtained as a result of the stop and seizure and (2) to suppress any and all fruits of \u201csaid illegal stop.\u201d\nA hearing on the first motion was held before the Honorable James E. Hardin, Jr. (\u201cJudge Hardin\u201d). Defendant did not present any evidence. Following the hearing, the trial court denied the first motion. In the order, the trial court found that defendant had not \u201calternatively and independently argued that the search of the [defendant and resulting seizure of contraband was illegal.\u201d\nOn 20 October 2009, defendant filed a second motion to suppress evidence (\u201cthe second motion\u201d) that was heard before the Honorable L. Todd Burke (\u201cJudge Burke\u201d). However, Judge Burke did not rule on the second motion. When defendant entered his guilty plea on 1 December 2009 before Judge Burke, defendant specifically reserved the right to appeal all constitutional issues raised including the constitutionality of the checkpoint and defendant\u2019s stop and seizure by all officers including Deputy Bracken.\nOn 7 December 2009, Judge Burke sentenced defendant to serve a minimum term of five months to a maximum term of six months in the custody of the North Carolina Department of Correction, suspended the sentence, and placed defendant on supervised probation for twelve months. Defendant appeals.\nIT. STANDARD OF REVIEW\nWhen reviewing a motion to suppress evidence, this Court determines whether the trial court\u2019s findings of fact are supported by competent evidence and whether the findings of fact support the conclusions of law. If supported by competent evidence, the trial court\u2019s findings of fact are conclusive on appeal, even if conflicting evidence was also introduced. However, conclusions of law regarding admissibility are reviewed de novo.\nState v. Wilkerson, 363 N.C. 382, 433-34, 683 S.E.2d 174, 205 (2009) (internal citations omitted). \u201cThe question for review is whether the ruling of the trial court was correct and ... whether the ultimate ruling was supported by the evidence.\u201d State v. Austin, 320 N.C. 276, 290, 357 S.E.2d 641, 650 (1987) (internal citation omitted). If the trial court\u2019s findings of fact support its conclusions of law, \u201cthe trial court\u2019s conclusions of law are binding on appeal.\u201d State v. West, 119 N.C. App. 562, 565, 459 S.E.2d 55, 57 (1995) (citation omitted).\nIII. INITIAL MATTERS\nThe State, as an initial matter, urges this Court not to consider the second motion on the ground that defendant failed to obtain a ruling on the motion as required by N.C. R. App. P. 10(b)(1). We agree with the State that the second motion is not properly before us, but reach this conclusion for different reasons.\nDefendant\u2019s first motion was heard by Judge Hardin. Defendant asserted that the checkpoint \u201cwas not set up, conducted or maintained pursuant to a valid programmatic purpose and its operation and management did not meet the constitutional requirements set out under the Fourth and Fourteenth Amendments to the United States Constitution . . . .\u201d Defendant argued that the checkpoint was unconstitutional because its programmatic purpose was not to detect impaired drivers, as the State contended, but instead was \u201can unlawful multipurpose checkpoint geared towards general crime prevention and drug interdiction.\u201d\nJudge Hardin denied the first motion and concluded that the checkpoint had a valid and appropriately tailored programmatic purpose: the detection of drivers operating a motor vehicle while impaired. In addition, Judge Hardin noted in his findings of fact:\nThe Defendant confines his contentions and arguments to the alleged unconstitutionality of the stop of the Defendant and of the fruits of a resulting search that yielded seized contraband. In the event of a finding that the Driving While Impaired \u201cChecking Station\u201d was constitutional in its purpose and application, the Defendant has not alternatively and independently argued that the search of the Defendant and resulting seizure of the contraband was illegal.\nJudge Hardin then explained that although \u201cthis court has made findings of fact sufficient to make these conclusions of law, this has not been done because of the parameters of the Defendant\u2019s contentions and arguments raised, and of the authorities cited.\u201d Judge Hardin, therefore, made no conclusions of law on any issue other than the constitutionality of the checkpoint. Judge Hardin concluded the checkpoint was constitutional and denied the first motion.\nDefendant then filed the second motion, asserting that \u201cthe individual search and resulting seizure of the alleged contraband was illegal pursuant to the Fourth and Fourteenth Amendments to the United States Constitution . . . .\u201d The second motion was heard by Judge Burke. Defendant\u2019s counsel argued to Judge Burke that Judge Hardin had left open the question whether, even though the checkpoint as implemented by the first officer (Deputy Moore) was constitutional, the individual search (conducted by Deputy Bracken) that followed the initial stop was unconstitutional. Based on that argument, Judge Burke concluded that because Judge Hardin \u201chasn\u2019t made a ruling on it, I\u2019m going to have to hear it because [defendant\u2019s] asking that a ruling be made on it now.\u201d\nAfter the parties addressed whether Judge Burke should hear testimony or whether Judge Hardin\u2019s factual findings were binding, it became clear that defendant\u2019s counsel was still focusing on the checkpoint. Defendant\u2019s counsel contended that Judge Hardin concluded that the programmatic purpose of the checkpoint was \u201cfine,\u201d but then \u201cinvited ... a secondary motion that the application of the checkpoint and the search that was done outside the realm of the checkpoint by Deputy Bracken was invalid.\u201d When Judge Burke pointed out that Judge Hardin had concluded that \u201cthere was nothing wrong with the checkpoint,\u201d defendant\u2019s counsel responded that the law requires both that the checkpoint have a proper programmatic purpose and that it be narrowly tailored. According to defendant\u2019s counsel, Judge Hardin had addressed only the programmatic purpose prong, but had left open the issue whether the checkpoint was narrowly tailored.\nAfter defendant\u2019s counsel made it plain that in the second motion, defendant was still challenging an aspect of the checkpoint\u2019s constitutionality, Judge Burke pointed out that the constitutionality of the checkpoint had already been decided by Judge Hardin. He, therefore, concluded that he had no authority to hear the second motion since it would essentially require him to conclude that Judge Hardin had erred in ruling that the checkpoint was constitutional. Defendant then chose to plead guilty.\nOn appeal, while defendant quotes, in part, Judge Burke\u2019s explanation regarding why he did not believe that he had authority to decide the second motion, defendant never argues that Judge Burke erred in refusing to decide the second motion. Defendant challenges only Judge Hardin\u2019s ruling by asserting in appellant\u2019s brief, \u201cJudge Hardin\u2019s view that the checkpoint itself and the search of the defendant are distinct and separate transactions, is a hypertechnical view of the checkpoint.\u201d Defendant then confirmed that he still primarily challenged the constitutionality of the checkpoint:\nIn the instant case, it is clear that the checkpoint was used to detect impaired drivers, but the actions of Deputies Moore and Bracken support a finding that the checkpoint had an impermissible purpose of general law enforcement or drug interdiction, as is further supported by the fact that the DWI checkpoint yielded four DWI arrests and one hundred (100) other violations.\nWith respect to any other Fourth Amendment violation apart from the checkpoint itself, defendant stated only, quoting Judge Hardin\u2019s finding of fact:\nIn any event, appellant specifically alleged that the \u2018search and resulting seizure of contraband\u2019 was illegal in his second Motion to Suppress before Judge Burke. For these reasons, Appellant\u2019s Motion to Suppress was not defective for failing to \u2018alternatively and independently [argue] that the search of the defendant and resulting seizure of contraband was illegal.\u2019 \u201d\n(internal citation omitted and emphasis added). In the conclusion of his brief, defendant stated: \u201cBecause the appellant was illegally searched during the course of a DWI checkpoint, the checkpoint itself had an impermissible purpose and was unreasonable. Alternatively, because the appellant was illegally searched, the resulting seizure of contraband should have been suppressed. Therefore, appellant\u2019s Motion to Suppress should have been allowed.\u201d\nDefendant\u2019s brief cannot be read as suggesting that Judge Burke erred in any respect or that anything further needed to be done as to the second motion. Instead, defendant seems to be arguing that Judge Hardin erred in finding that the first motion was inadequate. In making this argument, defendant curiously contends that the first motion was not inadequate because of language in the second motion that was never before Judge Hardin. The conclusion of his brief then refers to only one motion to suppress.\nIn addition, nowhere in defendant\u2019s brief does he present any argument or provide any explanation as to how he was \u201cillegally searched\u201d apart from the checkpoint and its alleged impermissible purpose. As Appellate Rule 28(b)(6) provides, \u201c[i]ssues ... in support of which no reason or argument is stated, will be taken as abandoned.\u201d N.C. R. App. P. 28(b)(6) (2010). We cannot, after careful review of defendant\u2019s brief, see any place that defendant challenges the failure to rule on his second motion or provides a basis unrelated to the checkpoint on which the second motion should have been granted. Therefore, the second motion is not properly before us and all further references to \u201cthe trial court\u201d will pertain to the proceedings before Judge Hardin.\nIV. CONSTITUTIONALITY OF THE CHECKPOINT\nDefendant argues that the trial court erred in denying the first motion. Defendant claims the \u201ccheckpoint was not set up, conducted or maintained pursuant to a valid programmatic purpose and its operation and management did not meet the constitutional requirements set out under the Fourth and Fourteenth Amendments to the United States Constitution . ...\u201d We disagree.\n\u201c \u2018[Pjolice officers effectuate a seizure when they stop a vehicle at a checkpoint.\u2019 As with all seizures, checkpoints conform with the Fourth Amendment only \u2018if they are reasonable.\u2019 \u201d State v. Rose, 170 N.C. App. 284, 288, 612 S.E.2d 336, 339 (2005) (quoting State v. Mitchell, 358 N.C. 63, 66, 592 S.E.2d 543, 545 (2004)). \u201cThus, \u2018police may briefly detain vehicles at a roadblock checkpoint with out individualized suspicion, so long as the purpose of the checkpoint is legitimate and the checkpoint itself is reasonable.\u2019 \u201d State v. Jarrett, \u2014 N.C. App. \u2014, \u2014, \u2014 S.E.2d \u2014, \u2014 (2010) (quoting State v. Veazey, 191 N.C. App. 181, 184, 662 S.E.2d 683, 686 (2008) (citations omitted)).\nWhen 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.\nVeazey, 191 N.C. App. at 185-86, 662 S.E.2d at 686-87 (internal quotations and citations omitted).\nA. Primary Programmatic Purpose\n\u201cIn considering the constitutionality of a checkpoint, the trial court must initially \u2018examine the available evidence to determine the purpose of the checkpoint program.\u2019 \u201d State v. Gabriel, 192 N.C. App. 517, 521, 665 S.E.2d 581, 585 (2008) (quoting Rose, 170 N.C. App. at 289, 612 S.E.2d at 339).\nOur Court has previously held that where 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. In such cases, the trial court may not simply accept the State\u2019s 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[.]\nVeazey, 191 N.C. App. at 187, 662 S.E.2d at 687-88 (internal quotations and citations omitted). \u201c[W]hen a trooper\u2019s testimony varies concerning the primary purpose of the checkpoint, the trial court is \u2018required to make findings regarding the actual primary purpose of the checkpoint and ... to reach a conclusion regarding whether this purpose was lawful.\u2019 \u201d Gabriel, 192 N.C. App. at 521, 665 S.E.2d at 585 (quoting Veazey, 191 N.C. App. at 190, 662 S.E.2d at 689).\nIn the instant case, Officer Griffith testified that the purpose of the checkpoint was \u201cto stop subjects from driving while impaired.\u201d He also testified that officers were to check drivers\u2019 licenses to make sure they were current, and that if drivers were \u201cin violation of their registration being out or their license [was] expired or suspended, [they would be charged] as well.\u201d However, on cross-examination, Officer Griffith stated that officers at the checkpoint would be looking for weapons and \u201cother criminal\u201d violations, such as drug violations and stolen vehicles. Additionally, Officer Griffith stated that during the checkpoint, one officer would approach a stopped vehicle while a second officer would approach and \u201clook for other violations of the law,\u201d including observing whether there were drugs \u201cin plain sight.\u201d\nAdditional testimony was presented by Deputy Bracken, who assisted Deputy Moore. Deputy Bracken explained that his purpose was \u201cto check and make sure there was [sic] no weapons or no obvious threats in the car,\u201d and that a FCSD narcotics K-9 officer was present at the checkpoint. \u201cBecause variations existed in [the officers\u2019] testimony regarding the primary purpose of the checkpoint, the trial court was required to make findings regarding the actual primary purpose of the checkpoint.\u201d Jarrell, - N.C. App. at -, -S.E.2d at -.\nDuring Officer Griffith\u2019s testimony on direct examination, the State introduced, without objection, the written \u201cChecking Station Plan\u201d (\u201cExhibit 1\u201d). Officer Griffith testified that he was the officer who created Exhibit 1, and that he was the officer in charge at the checkpoint. He further testified that Exhibit 1 had not been changed or altered in any way since 6 July 2007. According to Officer Griffith\u2019s testimony, Exhibit 1 included: (1) the location of checkpoint at the 800 block of South Main Street and the 800 block of Old Winston Road in Kernersville; (2) the times of operation of the checkpoint from 11:00 p.m. on 6 July 2007 until 3:00 a.m. on 7 July 2007; (3) the procedures to be followed, such as stopping every vehicle entering the checkpoint; and (4) the equipment to be used, such as posting signs in advance of the checkpoint to notify approaching drivers of the checkpoint, and activating blue lights. The plan was distributed to all participating law enforcement agencies, and Officer Griffith, as the supervising officer, was the only officer authorized to approve changes to the plan.\nFurthermore, Officer Griffith testified that Exhibit 1 directed the officers to determine whether the addresses on the driver\u2019s license and registration matched the information available, and whether the presented license was valid or revoked when a vehicle was stopped at the checkpoint. Officers would also check for an odor of alcohol or marijuana, and observe other physical characteristics such as slurred speech or glassy eyes. If all information was current and valid and the officers were not concerned about any driver\u2019s noncompliance with the Motor Vehicle Code, officers would return the driver\u2019s license and registration and the driver was free to leave. Officer Griffith testified that in situations where the officers were satisfied, the entire encounter would take approximately fifteen to twenty seconds.\nAlthough the officers offered conflicting testimony on the purpose of the checkpoint, Officer Griffith\u2019s testimony must be viewed along with Exhibit 1. When the officers\u2019 testimony is supplemented by a written plan, then the evidence must be viewed in its entirety. When viewed in the entirety, the evidence supports the trial court\u2019s finding that the officers complied with the written checkpoint plan conducted pursuant to a memorandum titled \u201cChecking Station Plan\u201d and prepared by Officer Griffith from the \u201cstandard plan\u201d adapted from the Governor\u2019s Highway Safety Program. The trial court also found that: (1) Officer Griffith, a supervising officer, was present; (2) all cars coming through the checkpoint were stopped; (3) only Officer Griffith had the ability or authority to alter the plan or its execution; (4) the plan was not altered in any way except for an \u201cinconsequential adjustment\u201d of the exit from 1-40 as directed by Officer Griffith; (5) signs were set out in advance of the checkpoint alerting drivers of the checkpoint; (6) stationary and temporary lighting illuminated the checking station; (7) the blue lights were activated on all law enforcement vehicles; (8) the drivers of all vehicles stopped at the checkpoint were asked for their license, registration, and destination; and (9) when the officers checked the drivers\u2019 licenses presented, the drivers were asked whether the addresses matched information available, and whether the presented license was valid or in revocation. At the time the officers followed the procedures in the plan, they also checked drivers for an odor of alcohol. Furthermore, the trial court found that the stated purpose of the plan was to \u201cdetermine compliance with the Motor Vehicle Code\u201d and that the ultimate goal of the checkpoint was to \u201creduce crashes;. injuries and deaths all contributed (sic) to impaired driving offenses.\u201d\nAs a result of these findings, the trial court concluded that the primary programmatic purpose of the checkpoint was \u201cthe detection of drivers operating a motor vehicle while impaired and that the \u2018procedure was not merely to further general crime control.\u2019 \u201d (internal citation omitted). Our Courts have upheld checkpoints where it found that a checkpoint\u2019s lawful primary purpose was designed to \u201cuncover drivers\u2019 license and vehicle registration violations,\u201d Veazey, 191 N.C. App. at 189, 662 S.E.2d at 689, and detect intoxicated drivers, Veazey, 191 N.C. App. at 185, 662 S.E.2d at 686. Therefore, the trial court properly determined the primary programmatic purpose of the checkpoint was constitutionally permissible.\nB. Reasonableness\n\u201cAlthough the trial court concluded that the checkpoint had a lawful primary purpose, \u2018its inquiry does not end with that finding.\u2019 \u201d Jarrett, - N.C. App. at -, - S.E.2d at - (quoting Rose, 170 N.C. App. at 293, 612 S.E.2d at 342). \u201cInstead, the trial court must still determine \u2018whether the checkpoint itself was reasonable.\u2019 \u201d Id. at \u2014, \u2014 S.E.2d at (quoting Veazey, 191 N.C. App. at 191, 662 S.E.2d at 689-90).\n\u201cTo determine whether a seizure at a checkpoint is reasonable requires a balancing of the public\u2019s interest and an individual\u2019s privacy interest.\u201d Rose, 170 N.C. App. at 293, 612 S.E.2d at 342. \u201cIn 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).\u201d Jarrett, \u2014 N.C. App. at -, - S.E.2d at - (citing Rose, 170 N.C. App. at 293, 612 S.E.2d at 342). \u201cUnder Brown, the trial court must consider \u2018[1] the gravity of the public concerns served by the seizure [;] [2] the degree to which the seizure advances the public interestf;] and [3] the severity of the interference with individual liberty.\u2019 \u201d Id. at -, S.E.2d at -(quoting Rose, 170 N.C. App. at 293-94, 612 S.E.2d at 342 (internal quotations and citation omitted)).\n1. The gravity of the public concerns\n\u201cThe first Brown factor \u2014 the gravity of the public concerns served by the seizure \u2014 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.\u201d Rose, 170 N.C. App. at 294, 612 S.E.2d at 342.\nBoth 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.\nVeazey, 191 N.C. App. at 191, 662 S.E.2d at 690 (internal quotations and citations omitted). In Veazey, we held that a checkpoint that was operated for the purpose of checking drivers\u2019 licenses would not violate the Fourth and Fourteenth Amendments. Id. at 185, 662 S.E.2d at 686. In addition, we note that \u201c[i]nvestigating officers may take such steps as are reasonably necessary to maintain the status quo and to protect their safety during an investigative stop.\u201d United States v. Taylor, 857 F.2d 210, 213 (4th Cir. 1988). As previously noted, the trial court determined that the primary programmatic purpose of the checkpoint was constitutionally permissible.\nWhen the officers stopped defendant and asked him for his license, the officers performed the primary purpose of the checkpoint. As Deputy Moore spoke with defendant, he detected an odor of alcohol and observed two beer bottles missing from a six-pack in defendant\u2019s back seat. Defendant then admitted to Deputy Moore that he consumed alcohol earlier that evening. Deputy Moore then asked defendant to exit the vehicle to perform a field sobriety test. Deputy Moore\u2019s actions were consistent with the trial court\u2019s conclusion that the checkpoint was also designed to detect \u201cdrivers operating a motor vehicle while impaired.\u201d\nWhen Deputy Moore noticed defendant was carrying a small knife, he asked defendant about a bulge in defendant\u2019s 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. The trial court properly concluded \u201cthat upon a consideration of the individual circumstances as applied to the subject case and of the applicable factors regarding the reasonableness of the [checkpoint] . . . the gravity of the public concerns [are directly] served by the seizure.\u201d Therefore, \u201cthe checkpoint adequately satisfied the requirements of the first prong of Brown. Jarrett, - N.C. App. at -, - S.E.2d at -.\n2. The degree to which the seizure advanced public interests\n\u201cUnder the second Brown prong \u2014 the degree to which the seizure advanced public interests \u2014 the trial court was required to determine \u2018whether [t]he police appropriately tailored their checkpoint stops to fit their primary purpose.\u2019 \u201d Id. at \u2014, \u2014 S.E.2d at \u2014 (quoting Veazey, 191 N.C. App. at 191, 662 S.E.2d at 690) (internal quotations and citation omitted).\nOur 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.\nVeazey, 191 N.C. App. at 191, 662 S.E.2d at 690.\nIn the instant case, the trial court\u2019s order found as fact, supported by Officer Griffith\u2019s testimony and Exhibit 1, that: (1) the checkpoint was established pursuant to a memorandum published on 6 July 2007, which was prepared from the \u201cstandard plan\u201d of the Governor\u2019s Highway Safety program website and without material changes except as to date, time and agencies involved, by the officer in charge, Officer Griffith, and with the designated subject described as \u201cChecking Station Plan,\u201d and that the memorandum was admitted as evidence in a voir dire evidentiary hearing as State\u2019s Exhibit 1; (2) the checkpoint was conducted on a main thoroughfare of Kernersville and the location was selected, \u201ctaking into account the likelihood of detecting impaired drivers, the traffic conditions, the number of vehicles that would likely be stopped and the convenience and safety of the motoring public\u201d; and (3) the checkpoint had a predetermined starting time of 11:00 p.m. on 6 July 2007 and a predetermined ending time of 3:00 a.m. on 7 July 2007. \u201cWhile these findings do not necessarily address all of the non-exclusive factors suggested by Veazey, they do 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.\u201d Jarrett, \u2014 N.C. App. at \u2014, \u2014 S.E.2d at \u2014.\n3. The severity of the interference with individual liberty\n\u201cThe final Brown factor to be considered is the severity of the interference with individual liberty.\u201d Id. at-, - S.E.2d at -. \u201c[Cjourts 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\u2019s objectives.\u201d Veazey, 191 N.C. App. at 192, 662 S.E.2d at 690-91.\nCourts have previously identified a number of non-exclusive factors relevant to officer discretion and individual privacy, including: the checkpoint\u2019s 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\u2019 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[.]\nId. at 193, 662 S.E.2d at 691. \u201cOur Court has held that these and other factors are not \u201c\u2018lynchpin[s],\u201d but instead [are] circumstance[s] to be considered as part of the totality of the circumstances in examining the reasonableness of a checkpoint.\u2019 \u201d Id. (quoting Rose, 170 N.C. App. at 298, 612 S.E.2d at 345).\nIn the instant case, the trial court considered all of the relevant factors under the third Brown prong. These findings included: (1) the checkpoint\u2019s location at the intersection of the 800 block of South Main Street and the 800 block of Old Winston Road in Kernersville, North Carolina, was predetermined and took into account the traffic conditions, the number of vehicles that would likely be stopped and the convenience and safety of the motoring public, and there was an adjustment to include the exit from the Interstate 40 Highway since some drivers were turning around to avoid the checkpoint; (2) the steps taken to put drivers on notice of the approaching checkpoint were that signs were set out at the checkpoint alerting all drivers to the checkpoint ahead; (3) the location for the checkpoint was selected and directed by Officer Griffith; (4) in accordance with the plan developed from the Governor\u2019s Highway Safety Program, every vehicle was stopped and each driver was asked for a driver\u2019s license and registration; (5) drivers could see visible signs of the officers\u2019 authority because approximately thirty law enforcement officers, in twenty to twenty-five marked patrol cars with their blue lights flashing, were positioned at the checkpoint, and also stationary and temporary lighting was used to illuminate the area of the checkpoint; (6) all participating law enforcement officers operated the checkpoint pursuant to the written plan, which included Officer Griffith\u2019s briefing all participants regarding the procedures, equipment, location, and times of operation of the checkpoint; (7) Officer Griffith was the \u201cOfficer-in-Charge\u201d and the supervisor of all the officers participating in the checkpoint; and (8) officers from five separate law enforcement agencies cooperated to conduct the checkpoint and agreed to follow the plan. Officer Griffith remained in control of the checkpoint at all times. \u201cThese findings indicate the trial court adequately considered the appropriate factors under the third prong of Brown.\u201d Jarrett, -N.C. App. at -, - S.E.2d at -.\n\u201cThe trial court\u2019s order denying defendant\u2019s motion to suppress contained adequate findings of fact, supported by competent evidence, to satisfy the three prongs of the Brown test.\u201d Id. at \u2014 ,- S.E.2d at \u2014. These findings in turn support the trial court\u2019s conclusions of law that \u201cthe degree to which the seizure advances the public interest [are substantial and significantly outweigh] [] the severity of the interference with individual liberty\u201d and \u201cthe [checkpoint], as composed and implemented was not an unreasonable detention of drivers entering the subject checkpoint or of the Defendant in these circumstances . . . .\u201d The trial court correctly determined that the KPD had a legitimate primary programmatic purpose for conducting a checkpoint and that the checkpoint was reasonable under the circumstances. Defendant\u2019s issue on appeal is overruled.\nV. CONCLUSION\nJudge Hardin\u2019s findings of fact were based upon competent evidence and supported the conclusion of law that the checkpoint, did not violate defendant\u2019s Fourth and Fourteenth Amendment rights. Therefore, the trial court properly denied the first motion. Defendant never challenged Judge Burke\u2019s failure to rule on the second motion or provided a basis unrelated to the checkpoint on which the second motion should have been granted. This issue is abandoned.\nAffirmed.\nJudges HUNTER, Robert C. and GEER concur.\n. Documents in the record on appeal also identify defendant as \u201cJohn Roscoe Nolen.\u201d However, since the trial court\u2019s judgment identifies defendant\u2019s last name as \u201cNolan,\u201d we refer to him in this opinion by that spelling.\n. Defendant was not charged with DWI because he passed the field sobriety test.\n. The trial court dismissed the charges of possession of a Schedule II controlled substance and possession of a Schedule III controlled substance pursuant to his plea agreement with the State.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General John R. Green, Jr., for the State.", "Benjamin D. Porter, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHN ROSCOE NOLAN\nNo. COA10-518\n(Filed 19 April 2011)\n1. Appeal and Error\u2014 preservation of issues \u2014 denial of second motion to dismiss\nThe denial of a motion to dismiss evidence of illegal drugs seized from defendant and his car at a checkpoint was not properly before the Court of Appeals where a prior motion on the constitutionality of the checkpoint was denied and the second motion, on the seizure itself, was not ruled upon. Defendant did not challenge the trial court\u2019s failure to rule on the second motion or provide a reason for granting it not related to the first.\n2. Criminal Law\u2014 traffic checkpoint \u2014 primary programmatic purpose \u2014 constitutional\nThe trial court properly determined that the primary programmatic purpose of a traffic checkpoint was constitutionally permissible when the evidence was considered in its entirety, including the written plan as well as the officers\u2019 conflicting testimony.\n3. Criminal Law\u2014 traffic checkpoint \u2014 constitutionally reasonable\nThe trial court correctly determined that a traffic checkpoint was reasonable where the court applied the three-prong test of Brown v. Texas, 443 U.S. 47, and considered the gravity of the public concerns, the degree to which the public interest was advanced and to which the checkpoint was tailored to fit its primary purpose, and the severity of the interference with individual liberty.\nAppeal by defendant from judgment entered 24 September 2009 by Judge James E. Hardin, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 27 October 2010.\nAttorney General Roy Cooper, by Assistant Attorney General John R. Green, Jr., for the State.\nBenjamin D. Porter, for defendant-appellant." }, "file_name": "0109-01", "first_page_order": 117, "last_page_order": 132 }