Does State v. Ashworth Place Factors Over Substance?

The court of appeals reversed a defendant’s DWI conviction yesterday in State v. Ashworth, __ N.C. App. __ (August 2, 2016), on the basis that the trial court plainly erred in holding that the driver’s license checkpoint at which the defendant was stopped was appropriately tailored and advanced the public interest. Unlike some checkpoint cases in which you can see the trouble coming in the recitation of facts, Ashworth is a pretty routine checkpoint case. Two officers with the State Highway Patrol set up the checkpoint to look for driver’s license and other traffic violations. The highway patrol had a checkpoint policy that the officers followed. A supervisor approved the checkpoint. The defendant admitted that he had been drinking almost immediately after he stopped at the checkpoint. So where did the trial court go wrong?

Facts. Two highway patrol officers decided to set up a checkpoint to detect driver’s license and other traffic law violations on July 31, 2013 at an intersection in Chapel Hill.  A supervisor authorized the checkpoint, which began around 8 p.m. There was no set ending time for the checkpoint. The defendant drove up to the checkpoint at 9:45 p.m.  A trooper asked for his driver’s license, which the defendant provided.  The trooper smelled alcohol coming from the vehicle and asked the defendant whether he had been drinking.  The defendant, with surprising candor, said, “You got me.  I had about five beers back to back, drank them real quick.” The defendant was subsequently arrested for impaired driving.

Procedural history. The defendant moved to suppress the evidence resulting from the stop on the basis that the checkpoint violated his constitutional rights. The trial court entered a written order denying the motion. The case proceeded to trial, where the defendant failed to renew his objection to the admission of the evidence obtained as a result of the checkpoint stop. The defendant was convicted of impaired driving. He appealed, arguing that the trial court plainly erred in denying his motion to suppress.

Analysis. The court of appeals applied the two-part inquiry established in State v. Veazey, 191 N.C. App. 181 (2008), to evaluate whether the checkpoint met constitutional requirements.

First, the court considered the primary programmatic purpose. That didn’t take long, as the parties agreed in this case that checking for driver’s licenses and other traffic violations was a permissible purpose.

Next the appellate court considered whether the trial court plainly erred in concluding that the checkpoint was reasonable by applying the balancing inquiry set forth in Brown v. Texas, 443 U.S. 47 (1979).  The balancing test requires the court to 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. If these factors weigh in favor of the public interest, the checkpoint is reasonable and therefore constitutional.

Gravity of public concern. The appellate court in Ashworth agreed with the trial court’s conclusion that ensuring that drivers were properly licensed was of “vital interest” and that interest outweighed the “minimal seizure” of this checkpoint stop.

Degree to which seizure advanced public interest. The appellate and trial courts parted ways, however, when it came to consideration of the second Brown factor. After reciting many of the factors that trial courts should consider when determining whether a checkpoint is appropriately tailored, the court of appeals criticized the trial court for its failure to consider any of them. The appellate court noted that the trial court made no findings regarding whether the checkpoint was “spontaneously set up on a whim,” why the intersection was chosen, or why the time slot was selected. Thus, the Ashworth court determined that the trial court’s findings of fact did not support its conclusion of law that the seizure was appropriately tailored and advanced the public interest.

Severity of interference with individual liberty. The appellate court determined that the trial court’s failure to make findings to support its conclusion that the checking station advanced the public interest left it without a basis to weigh the public’s interest against the individual’s Fourth Amendment interest.  Thus, even though the court made findings relevant to the third prong of Brown (including that a supervisor approved the checkpoint), the trial court’s failures with respect to the second Brown factor doomed its balancing.

Holding. Because the trial court’s findings did not permit the judge to meaningfully weigh the second and third prongs of Brown, the court of appeals held that the trial court erred in denying the defendant’s motion to suppress. The court deemed this plain error as the evidence obtained at the checking station was the only evidence presented by the State at trial.

The appellate court remanded the case for further findings of fact and conclusions of law regarding the reasonableness of the checkpoint stop.

I don’t get it.  Anyone who reads this blog knows I’m a bit of stickler for legal rules and Fourth Amendment tests. Yet, even with that predilection, I am not quite sure how trial courts are to apply Ashworth. I’ll start with the second Brown factor, which is aimed at evaluating whether the checkpoint is appropriately tailored to carry out the government’s interest.  In Ashworth, that interest is in detecting license and other motor vehicle violations.

This prong is important to evaluating the constitutionality of a checkpoint because, without tailoring, a checkpoint “‘purportedly established to check licenses [could] be located and conducted in such a way as to facilitate the detection of crimes unrelated to licensing.’” State v. Rose, 170 N.C. App. 284, 294-95 (2005) (quoting 5 Wayne R. LaFave, Search and Seizure § 10.8(a), at 347-48). Constitutional expert Wayne LaFave has commented that that risk can be minimized by requiring that a supervisor who considers whether license and registration checks would be effective. Among the trial court’s findings in Ashworth was that a supervisor approved the location of the checkpoint, but the court of appeals did not consider that finding to support the trial court’s conclusion that the checkpoint advanced the public interest.

For a checkpoint with a purpose as general as the one in Ashworth, what must the State establish to show that the checkpoint advances the interest in enforcing the motor vehicle laws? Some of the inquiries suggested by the North Carolina appellate courts are derived from the U.S. Supreme Court’s opinion in Illinois v. Lidster, 540 U.S. 419 (2004), in which it considered whether an information-seeking highway stop was appropriately tailored to gather information about a hit-and-run that occurred on the same highway at the same time of night about a week earlier. While it is clear that narrow tailoring of this sort is necessary to support a checkpoint aimed at gathering information for a criminal investigation, it is less obvious that a checkpoint to detect motor vehicle violations must be just as narrow. Indeed, one subsection of the state’s motor vehicle checkpoint statute, G.S. 20-16.3A(d), states that the placement of checkpoints “should be random or statistically indicated.” Id. Either is fine for purposes of the statute so long as “agencies avoid placing checkpoints repeatedly in the same location or proximity.” Id.

Ashworth indicates that the State must show something more in the “advance the public interest” category than that the checkpoint was approved by a supervisor, carried out pursuant to a written agency policy, and that it detected a motor vehicle law violation. What more must it show? That many unlicensed drivers and other traffic violators were likely to drive through the checkpoint? That officers discovered a certain number of violations during the checkpoint? That the checkpoint was set up on a well-traveled roadway in a safe area during a time at which law enforcement officers might expect a reasonable but manageable flow of traffic?

Had someone relayed the facts in Ashworth to me in advance of yesterday’s opinion, I would not have considered the fact that the checkpoint was spontaneous, that no reason was given for selecting the particular road, and that there was not a pre-determined starting and ending time to render the checkpoint unconstitutional in light of the other facts set forth in the opinion. Reaching such a conclusion would, in my mind, render the Veazey factors “lynchpins” rather than “circumstances to be considered as part of the totality of the circumstances in examining the reasonableness of the checkpoint.” 191 N.C. App. at 193. If one accepts that checking driver’s licenses is of vital public interest, I’m pressed to identify how the checkpoint in Ashworth outweighed the driver’s Fourth Amendment privacy interests.