Does State v. Ashworth Place Factors Over Substance?

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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.

7 comments on “Does State v. Ashworth Place Factors Over Substance?

  1. I might point out that this can be a somewhat troublesome area to rely on the NC General Statutes. There is too much federal 4th Amendment case law that has been much more developed than our statutory scheme realizes or takes into account. I’m not sure that checkpoints set up just to seek motor vehicle violations don’t violate the 4th Am regardless of the statutory scheme. From what I recall, without looking them up, there definitely needed to be a reason for the place chosen – too many wrecks, etc.. I think random location and no end time have specificity problems as well, seeing as they are already stops with no individualized suspicion for 4th purposes. We might all keep in mind that allowing the government to set up roadblocks to stop us all without any indicia of criminal activity is something that begins – in legal analysis – as illegal, and then only becomes legal as reasonably vigorous 4th Am tests are applied. The entire point of allowing this, we all recall, was that it is just so hard to combat the deaths and injuries on the nations highways from DWI drivers. I personally (as well as legally) never really understood how that magically expanded to checkpoints for everyday motor vehicle violations and drivers licenses. The exception-type justification that the Supreme Ct. first approved of did not seem to hint that it would one day be acceptable to have 2 Highway Patrol officers set up a roadblock to see if there were any motor vehicle violations out there. That seems very close to too far from where we started. I am happy to see an opinion criticized here! This should happen far more often; we have no shortage or poorly reasoned opinions, particularly in other constitutional areas like confrontation/Melendez-Diaz applications.

  2. Birth of a Checkpoint

    Officer 1: You on patrol tonight?
    Officer 2: Yep.
    Officer 1: You want to throw up a checkpoint?
    Officer 2: Yep.
    Officer 1: Then we don’t have to investigate, we can stop everyone for no reason!
    Officer 2: Yep.
    Officer 1: I’ll get sarge to sign the paperwork later this week – or at least before court.
    Officer 2: Yep.

  3. It amazes me that the writers of this BLOG do what ever they can do to write opinions that benefit the State. a checkpoint is a seizure. so the stop from any check point in my eyes and the framers of our constitution is illegal; and should only be allowed in very limited cases. “i dont get it” that must be your reference to you do not understand the constitution.

    It amazes me that in the middle of a trial a judge is allowed to call the members of this blog and get an opinion; you guys work for the state; that is so wrong. i have called and emailed members of this blog numerous times asking about a law to no response. Please, stop being such a zealous representative for the State of North Carolina. THE STATE HAS THE BURDEN;THE STATE HAS THE BURDEN is a bunch of bull come try a case with me or other defense lawyers in this State and watch to see who the burden is on!!!!!! Its not on the State.

  4. As an officer that has scheduled and conducted checking stations, I can assure you that they have saved lives. So, when you want to consider if the public’s interest in stopping drunk drivers, uninsured drivers, doped drivers, ect is vital, how about speaking to people whose lives have been forever changed due to a drunk or stoned driver. If a short seizure while driving is that big of a deal, don’t drive. I have never, not one time, been upset over a checking station, mainly because I don’t drink and drive and I have a valid license and I obey the law. The liberal decisions in the court will come to haunt us all, and it will cost with lives. I hope that it doesn’t cost me, or a loved one because a drunk was caught driving, and then cried foul.

    • Papers, Please.

      Darn that pesky Constitution (fyi all checkpoints are unconstitutional, but the legislature has decided to ignore this fact)

  5. Agree with most of the comments, not so much the blog post. I don’t see what is wrong with the trial court making findings of fact with respect to a constitutional issue. Maybe the COA sees the farce of this last minute “driver license” checkpoint and is telling the trial courts to develop how checking for driver licenses at a time when most drivers are not on the road advances the public interest. Want to check for unlicensed drivers run it during the day when more drivers are on the road. It is maddening watching trial courts accept testimony that these are driver license checkpoints when they are clearly aimed at DWI enforcement. I would even concede that checkpoints can be beneficial, but they have to follow the law just like the citizens who will have to pass through them and undergo a seizure lacking in any reasonable suspicion of criminal activity. SCOTUS said this unconstitutional seizure will only be allowed if reasonable. Whether officers agree with it or not it is the law. Last minute “driver license” checkpoints late at night run by two officers is not reasonable. It’s also not safe for the officers posting up in poorly lit areas and standing in the middle of the road waving cars down. The one car with its lights on looks like a traffic stop not a checkpoint where all cars have to stop.

  6. On August 22, 2016, the N.C. Supreme Court denied the State’s motion for a temporary stay of Ashworth. I think Ashworth is an important case for criminal defense lawyers to review, not because it announces any new law. Instead, the case highlights the importance of (1) where appropriate, challenging the trial judge’s findings of fact when you take a case up on appeal, (2) Don’t forget to cite the applicable State constitutional ground for suppression at trial and throughout your appellate arguments, (see footnote 2 of the opinion, (3) This Defendant won on a plain error analysis, (which is highly unusual) and in spite of the fact that trial counsel did not timely object to the stop at trial, (could be a situation where a motion to suppress was filed and the defendant lost the motion, but trial counsel forgot to renew the objection in front of the jury, (this can happen. It’s happened to me, but it shouldn’t happen to you, especially if you have ever heard Staples Hughes give a seminar. (miss you Staples (4) Checkpoints that are dreamed up by officers in the field are ripe for attack, even if a supervisor goes along with it, (5) the beginning and ending time of a checkpoint is important (6) If the details of a checkpoint are more driven by officers in the field as opposed to the supervisor, you have a shot (6) the non-exclusive factors mentioned in the opinion regarding the reasonableness of a checkpoint are important to examine with regard to every checkpoint case that comes through your door and (7) You can’t win a checkpoint case, unless you file a motion to challenge the checkpoint.

    –David

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