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?
Tag Archives: checkpoints
Drug Dogs and Checkpoints
I’ve had several questions about the role of drug dogs at motor vehicle checkpoints. The details are below, but a quick summary of the law is as follows:
(1) Officers can’t lawfully run drug dogs around every vehicle stopped at a checkpoint
(2) Officers can lawfully run drug dogs around cars that are pulled out of line for additional investigation, so long as the use of dog doesn’t substantially lengthen the stop Continue reading →
The facts. A detective with the Charlotte-Mecklenburg Police Department writes a plan for a checkpoint to be conducted later in the evening. The plan states that the checkpoint will be established at the intersection of Ashley Road and Joy Street in Charlotte, NC. The plan states that the checkpoint’s purpose is to increase police presence in the targeted area while checking for driver’s license and vehicle registration violations. The plan further states that all vehicles traveling through the checkpoint must be stopped unless the officer in charge determines that a hazard has developed or an unreasonable delay is occurring. If that situation arises, all vehicles must be allowed to pass through until the hazard or delay is cleared.
The checkpoint is conducted from 12:34 a.m. to 1:52 a.m. on the designated evening. Every vehicle that travels through the checkpoint is stopped, and the officers ask every driver for his or her driver’s license.
The question. A passenger in a car stopped at the checkpoint moves to suppress evidence obtained during the stop and subsequent search of the car, alleging that the checkpoint was unconstitutional.
If you were the court, how would you rule? Continue reading →
Public Service or Obstruction of Justice?
Impaired driving checkpoints work because they scare people—not because they ensnare people. Sure, a few people are arrested for DWI at such checkpoints. But many more are deterred from driving after they’ve had too much to drink because of the perception that they might be subject to a random and surprise stop. In fact, the National Cooperative Highway Research Program has said that checkpoints “must be widely publicized, since the primary goal, and primary benefit is to discourage individuals from driving after they have been drinking.”
But concerns have arisen that the effectiveness of DWI checkpoints easily can be undermined in this age of social media and instant communication. If drivers believe they can readily learn of checkpoints’ location and thereby avoid being stopped, the efficacy of this safety measure presumably will decrease.
Several mobile apps purport to alert drivers of checkpoint locations. A San Diego news station reported that about 10,000 people downloaded the app “Mr. Checkpoint,” before New Year’s Eve last year. The developer of that app, which provides notice of checkpoint locations in California, claims that it discourages drinking and driving, rather than working at cross-purposes with police. Closer to home, a Facebook page called Police Roadblocks in Wilmington, NC Area,” invites area drivers to share the locations of checkpoints they encounter. The page states that its purpose is not “to encourage driving under the influence,” but to help people “avoid the hassle of the currently legal but questionable tactics that police currently employ.” Wilmington news station WECT recently reported one law enforcement officer’s positive take on the site. Sergeant Jerry Brewer was quoted as saying: “We hope you see that and go, ‘I don’t need to drive’ or ‘Hey you need to drive because I’ve had too many to drink’ . . . We’re hoping it’s a positive thing and not a negative thing to go ‘Oh well, I’ll try to go around it’ because we plan for that also.” Besides, Sgt. Brewer opined that it would be hard to get in trouble for sharing the location of a checkpoint on social media because it is considered public information.
Other law enforcement agencies have proven less sanguine. An Ohio man reportedly was charged with a crime last Friday night for displaying a sign that said: “Check point ahead turn now.”
Could checkpoint canary be similarly cited in NC? Perhaps for resisting, delaying or obstructing an officer in violation of G.S. 14-223? I haven’t discovered any North Carolina appellate court cases in which a person was charged with this crime for alerting others to the presence of police, though other jurisdictions have considered similar charges. Compare People v. Case, 365 N.E.2d 872, 873 (N.Y. Ct. App. 1977) (holding that CB radio message from one driver to another as to the location of a radar speed checkpoint does not constitute the crime of obstructing governmental administration; explaining “[t]o say that there is a Smokey takin’ pictures up the road does not subject the speaker to a year’s imprisonment”) with In re Davan L., 689 N.E.2d 909, 910 (N.Y. Ct. App. 1997) (juvenile’s pedaling of his bicycle in front of storefront where police were carrying out undercover drug buy while yelling “cops, cops . . . . watch out, five-0, police are coming,” were acts that, if committed by an adult, would constitute the crime of obstructing governmental administration). Readers, if you know of such prosecutions, please share your tale via the comment feature below. The checkpoint warning debate raises the same issues as the old controversy about whether one may permissibly flash headlights to warn of police presence, so if you know of prosecutions or vehicle stops for that conduct, let us know about that too.
Regular and well-publicized checkpoints are an important component of the State’s effort to curtail impaired driving. Checkpoints provide specific as well as general deterrence. A handful of impaired drivers typically are arrested at any given checking station and subsequently prosecuted for impaired driving. Many more drivers than are stopped hear about the checkpoint. That publicity increases the perception of drivers generally that if they drive while impaired, they are likely to be caught and punished.
A recent opinion from the court of appeals makes clear that if the State wants to rely on checkpoints to accomplish either objective, law enforcement agencies must comply with the statutory requirements set forth in G.S. 20-16.3A. That provision requires, among other things, that an agency conducting a checking station to determine compliance with the state’s motor vehicle laws operate under a written policy. The policy must provide guidelines for the pattern for stopping vehicles and for requesting drivers to produce driver’s license, registration and insurance information. The appellate court in State v. White held that the trial court did not err in suppressing evidence gathered at a checkpoint carried out by officers of a sheriff’s department that had no written policy. The absence of a written policy was a substantial violation of G.S. 20-16.3A, which warranted suppression of the evidence.
Facts. Three officers with the Anson County Sheriff’s Department conducted a “license check” checkpoint on September 11, 2009, pursuant to a checkpoint plan written by one of the officers. The department had no written policy for checking stations. The plan provided that the checkpoint was to begin at 7:55 p.m. at a designated intersection, that three specified officers would be present at the checkpoint, that the officers would wear their traffic vests, and that the “chase policy” would be in full effect. No ending time for the operation was stated in the plan.
The checkpoint began at the designated time and place, and the three named officers were present wearing safety vests. The blue lights on three police cars were activated. All of the vehicles approaching the checkpoint were stopped. Minutes after the checkpoint began, a driver was arrested for impaired driving. Two of the officers left the checkpoint to take the person to the sheriff’s office. One officer remained behind, but did not stop anyone until the other officers returned an hour and a half later. The defendant in White was stopped at the checkpoint around 11 p.m., about an hour after it resumed. The checkpoint ended at 11:20 p.m. with the defendant’s arrest on charges of driving while impaired and driving while license revoked.
Procedural History. The defendant was convicted of both charges in district court. He was sentenced at Level 1 for the DWI conviction, and ordered to serve six months of imprisonment. He was sentenced to 45 days imprisonment for driving while license revoked. The defendant appealed his convictions to superior court, where he moved to suppress all evidence resulting from the traffic stop on the basis that the checkpoint did not comply with G.S. 20-16.3A. The superior court granted the motion, concluding that the stop of the defendant after the checkpoint had been abandoned for more than an hour was “spontaneous,” and coupled with the lack of a written policy for the checkpoint resulted in a substantial violation of G.S. 20-16.3A that warranted suppression of the evidence. The trial court did not rule on the constitutionality of the checkpoint, noting that the evidence was suppressed solely for the statutory violation. The State appealed.
Holding. The court of appeals affirmed. The appellate court emphasized the unchallenged finding that the Anson County Sheriff’s Department had no written policy providing guidelines for motor vehicle law checking stations as mandated by G.S. 20-16.3A. The court concluded that the agency’s failure to comply with this requirement constituted a substantial violation of G.S. 20-16.3A.
The court rejected the State’s argument that suppression was not an authorized remedy since G.S. 15A-974 permits suppression only when the exclusion of evidence is required by the Constitution or the evidence was obtained as a result of a substantial violation of Chapter 15A. To rebut the State’s contention that G.S. 15A-974 was the sole source of the suppression remedy, the court cited impaired driving cases in which it had held that the violation of a defendant’s statutory implied consent rights in G.S. 20-16.2 requires suppression of the evidence obtained.
Moreover, the court noted that G.S. 20-16.3A itself indicates that suppression is appropriate for certain types of violations. G.S. 20-16.3A(d) provides that a violation of its provisions governing the placement of checkpoints is not grounds for a motion to suppress. The legislature’s expression of this principle for but one of the statutory requirements indicates that the violation of other requirements, such as the mandate in G.S. 20-16.3A(a)(2a) that the agency have a written policy, is a proper basis for a motion to suppress.
Remaining Questions. White is a significant case as it resolves the outstanding issue of whether violations of G.S. 20-16.3A may give rise to suppression of the evidence. They may. White does not, of course, resolve all of the issues that arise from irregularities in checking stations. One such issue is whether an officer’s departure from her agency’s written policy requires suppression. A departure so significant as to arise to unfettered discretion would violate the constitution, but what about lesser violations? Suppose the policy requires officers to ask each driver for his driver’s license and registration. One officer, without authorization, departs from this policy, figuring that she can determine from the license plate whether the registration is current. Another officer at the same checking station complies with the policy. Is the first officer’s violation substantial? White doesn’t answer this question. If, however, the trial court find the violation substantial, White requires suppression of the resulting evidence.
I wrote a paper about motor vehicle checkpoints last year. It’s available here. Once in a while, I get asked about so-called ruse checkpoints, a subject that I didn’t address in the paper.
A typical ruse checkpoint might work as follows. Officers deploy large, flashing temporary signs on a divided highway that say “drug checkpoint ahead” and warn that drug dogs are in use. In fact, there isn’t a drug checkpoint ahead, since drug checkpoints are forbidden under City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (holding that checkpoints may not be used for general crime control). However, shortly after the signs, there is an exit ramp. Officers closely watch any cars that use that ramp, on the theory that a disproportionate number of those vehicles will be carrying drugs and trying to evade what they think is an upcoming narcotics checkpoint. Officers won’t stop a vehicle just for using the ramp, however, as that action alone probably doesn’t rise to the level of reasonable suspicion. Instead, they’ll look for motor vehicle violations that would justify a stop, or for drivers pitching items from their windows. Once they’ve made a stop, they may use drug-sniffing dogs or other means to determine whether drugs are present in the vehicle. See, e.g., United States v. Rodriguez-Lopez, 444 F.3d 1020 (8th Cir. 2006) (describing a “decoy checkpoint” similar to the foregoing).
Is this procedure consistent with the Fourth Amendment? Courts generally have said that it is, even though it involves police representing that they will be violating the Fourth Amendment by conducting a drug checkpoint. I’m not aware of a North Carolina case on point, so the issue isn’t completely settled here, but the following cases are a sampling of the law in this area.
United States v. Flynn, 309 F.3d 736 (10th Cir. 2002) (stating that “[t]he posting of signs to create a ruse does not constitute illegal police activity,” so when a driver abandoned a bag containing drugs at the top of an exit ramp after seeing ruse checkpoint signs, he did so voluntarily)
People v. Roth, 85 P.3d 571 (Colo. Ct. App. 2003) (following Flynn and holding that “the fictitious drug checkpoint did not constitute an impermissible drug checkpoint”).
State v. Hedgcock, 765 N.W.2d 469 (Neb. 2009) (“We determine that the use of a ruse checkpoint, without an unreasonable seizure for Fourth Amendment purposes, is not unconstitutional simply because it is a ruse.”)
United States v. Carpenter, 462 F.3d 981 (8th Cir. 2006) (holding that when a driver exits just before a ruse checkpoint, that “may be considered as one factor in the totality of circumstances [regarding reasonable suspicion], although it is not a sufficient basis standing alone to justify a seizure”)
United States v. Brugal, 209 F.3d 353 (4th Cir. 2000) (en banc) (officers created a ruse drug checkpoint, then a real license checkpoint at the bottom of the ramp of the exit immediately following the drug checkpoint signs; the court considered a driver’s decision to exit on that particular ramp as a factor in the reasonable suspicion analysis)
Motor Vehicle Checkpoints
I’ve just finished a paper about motor vehicle checkpoints. It’s available here as a free download. It’s meant as a resource for judges, lawyers, and law enforcement officers, and it includes sections on establishing, operating, and litigating checkpoints. I hope it’s useful, and I’ll be interested in your feedback about it, which you can provide by emailing me or by posting a comment.