Checkpoints are being used more frequently and are a major source of funding for North Carolina police departments. Agencies are able to report large amounts of arrests in short amounts of time. Regardless as to whether checkpoints are effective, they are a seizure of citizens without reasonable suspicion and un-American. The Founding Fathers surely did not envision a future where officers were able to systematically stop citizens for no reason other than the hope that they are committing a criminal offense.
To determine the constitutionality of a traffic checking station, a Court must apply § 20-16.3A and the relevant U.S. Supreme Court and North Carolina appellate cases.
§ 2016.3A. Checking stations and roadblocks.
(a) A law enforcement agency may conduct checking stations to determine compliance with the provisions of this Chapter. If the agency is conducting a checking station for the purposes of determining compliance with this Chapter, it must:
(1) Repealed by Session Laws 2006253, s. 4, effective December 1, 2006, and applicable to offenses committed on or after that date.
(2) Designate in advance the pattern both for stopping vehicles and for requesting drivers that are stopped to produce drivers license, registration, or insurance information.
(2a) Operate under a written policy that provides guidelines for the pattern, which need not be in writing. The policy may be either the agency’s own policy, or if the agency does not have a written policy, it may be the policy of another law enforcement agency, and may include contingency provisions for altering either pattern if actual traffic conditions are different from those anticipated, but no individual officer may be given discretion as to which vehicle is stopped or, of the vehicles stopped, which driver is requested to produce drivers license, registration, or insurance information. If officers of a law enforcement agency are operating under another agency’s policy, it must be stated in writing.
(3) Advise the public that an authorized checking station is being operated by having, at a minimum, one law enforcement vehicle with its blue light in operation during the conducting of the checking station.
(b) An officer who determines there is a reasonable suspicion that an occupant has violated a provision of this Chapter, or any other provision of law, may detain the driver to further investigate in accordance with law. The operator of any vehicle stopped at a checking station established under this subsection may be requested to submit to an alcohol screening test under G.S. 2016.3 if during the course of the stop the officer determines the driver had previously consumed alcohol or has an open container of alcoholic beverage in the vehicle. The officer so requesting shall consider the results of any alcohol screening test or the driver’s refusal in determining if there is reasonable suspicion to investigate further.
(c) Law enforcement agencies may conduct any type of checking station or roadblock as long as it is established and operated in accordance with the provisions of the United States Constitution and the Constitution of North Carolina.
(d) The placement of checkpoints should be random or statistically indicated, and agencies shall avoid placing checkpoints repeatedly in the same location or proximity. This subsection shall not be grounds for a motion to suppress or a defense to any offense arising out of the operation of a checking station.
Each italicized phrase is a required element in establishing statutory compliance.
(2) Designate in advance the pattern both for stopping vehicles and for requesting drivers that are stopped to produce drivers license, registration, or insurance information.
“Designate in advance” can refer to a number of scenarios. In essence, a supervisor could tell his officers what pattern to follow minutes before setting up the checking station. This is not ideal in that it delegitimizes the programmatic purpose of that station. In most instances, a pre-checkpoint meeting is held by the supervisor and is attended by all officers involved. At this meeting, the supervisor should discuss:
the primary programmatic purpose of the checking station;
the location and time frame of the checking station;
the pattern for stopping vehicles;
what information/identification/documents will be asked of each driver;
where a suspect’s vehicle is to be moved if an officer has reasonable suspicion of criminal activity;
where field sobriety tests are to be administered if necessary.
(2a) Operate under a written policy that provides guidelines for the pattern, which need not be in writing.
All North Carolina police agencies operate their checking stations under a written policy. It is filed in their respective offices and is not necessary in court. As far as what “need not be in writing”, the statute is referring to information which is generally found on a Checking Station Authorization Form. This information includes:
the primary purpose of the checking station;
the location of the checking station;
time frame and date(s) of the checking station;
what information/identification/documents will be asked of each driver;
The supervisor can testify to this information on direct examination if a Checking Station Authorization Form was not utilized by him/her for that respective checkpoint. Usually, this form is utilized and, if so, should be entered into evidence by the prosecutor. Because the form is filled out and signed by the testifying witness, authentication is usually not an issue. In either instance, if the supervisor testifies to the information or the form is tendered into evidence, the requirements of subsections 2 and 2a need to be complied with.
No individual officer may be given discretion as to which vehicle is stopped or, of the vehicles stopped, which driver is requested to produce drivers license, registration, or insurance information.
This section of the statute is one which is most ripe for attack. Discretion is not defined, and almost all facets of an officer’s encounter with a driver involve subjective decisions from that officer. How specific the pre-checkpoint meeting instructions were are important in determining the level of discretion given to line officers.
Having, at a minimum, one law enforcement vehicle with its blue light in operation during the conducting of the checking station.
Although this is the minimum required for notifying the public of an approaching checking station, many agencies utilize more elaborate means of notice. Posted signs are often erected for DWI checkpoints. Were all involved officers in uniform? Although not a major component to the statute’s advisement requirement, the topographical location of the checking station can play a large role in whether proper notice was given. It is important for the state’s case that the checking station was visible from a fair distance in each direction.
The last italicized section of the statute is where the Court must subjectively determine the constitutionality of a checking station through the lens of U.S. Supreme Court and North Carolina appellate case law.
(c) Law enforcement agencies may conduct any type of checking station or roadblock as long as it is established and operated in accordance with the provisions of the United States Constitution and the Constitution of North Carolina.
A Discussion of the United States Supreme Court’s Relevant Checking Station Cases
The 4th Amendment of the U.S. Constitution states that there shall be no unlawful searches and seizures as it relates to traffic stops. In Delaware v. Prouse, 440 U.S. 648 (1979), the U.S. Supreme Court held that vehicle stops by law enforcement officers that are not based on reasonable and articulable suspicion are in violation of the 4th Amendment. In dicta, the Court stated that its holding did not cast doubt on the permissibility of checking stations.
Prouse outlines the beginning of an important trend in how the U.S. Supreme Court rules on checkpoint cases. The Court has from the outset held that checking stations are an exception to the 4th Amendment.
In Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990), the U.S. Supreme Court spoke specifically about impaired driving checking stations and upheld their validity generally. The Court outlined a three prong test balancing the state’s interest for conducting checkpoints against the individual liberties of those stopped:
Does the state have a grave and legitimate interest in curbing drunk driving?;
Was the checking station generally effective?;
Was the subjective intrusion on individual liberties substantial?
The Court found that a seizure occurred when a vehicle is stopped at a sobriety checkpoint. However, the Court went on to say that:
“such stops were reasonable considering the increasing number of alcohol-related deaths and mutilation on the nation’s roads. The State program was consistent with the Fourth Amendment and the balance of the State’s interest in preventing drunk driving and the degree of intrusion upon individual motorists who were briefly stopped weighed in favor of the State program”.
The first prong of the Sitz test is rarely a point of contention for our courts. No one can deny the state’s interest in deterring dangerous activity on public roads and highways. Courts have found on many occasions that the State has a vital interest in enforcing impaired driving laws. Additionally, the Courts have consistently held that checking stations whose purpose is to check for driver’s license and registration is a lawful programmatic purpose.
The second and third prongs deal subjectively with the testifying supervisor’s checking station on the date in question. To satisfy the second prong, supervisors will generally testify to testify to the numbers of charges that arose from that checkpoint. If the number of DWI arrests was relatively high, subjectively the checking station was effective. If the number is very low but the number of arrests for other Chapter 20 and 14 offenses is high, an argument can be made that the purpose of the checkpoint is too broad to meet the statutory requirements.
The third prong is generally a question about how long a particular driver was stopped at the checkpoint if there are no issues with their license or other documents. The busier the checking station, the more of an issue this becomes. Regardless of the other prongs, restricting a person’s ability to go where they please with no reasonable suspicion, even for a short amount of time, should be an issue as it is un-American.
Deviations are generally allowed by supervisors when traffic becomes congested at a checkpoint. If a deviation was not ordered, the supervisor felt that drivers were not unnecessarily burdened by the checkpoint.
The Sitz three prong test is in essence the same three prong test outlined by the U.S. Supreme Court in Brown v. Texas, 443 U.S. 47 (1979) to determine the constitutionality of checking stations. Brown is cited and followed by recent North Carolina appellate decisions and will be discussed below.
In City of Indianapolis v. Edmond, 531 U.S. 32 (2000), the Supreme Court held that a checkpoint’s primary purpose that is indistinguishable from a general interest in crime control is in violation of the 4th Amendment. In that case, officers conducted a mid-afternoon drug checkpoint that included a sweep of the outside of a vehicle by a K-9 unit. Not all vehicles were stopped, and each encounter would last between two and three minutes.
It is imperative to ask the checking station supervisor about all personnel who were present on the date in question. Determining that there were drug dogs or specific drug impact officers at the checkpoint is important to distinguish it as a general crime control operation. If there were K-9 units or drug impact officers present, inquire as to their duties on that date. If for any reason they were acting in their capacity as K-9 or drug officers, the rule in Edmond will be violated
A Discussion of North Carolina’s Checking Station Appellate Cases
North Carolina is one of thirty-eight states who follow U.S. Supreme Court jurisprudence and allow checking stations. The more important appellate decisions have followed the Supreme Court closely and refer heavily on the cases mentioned earlier.
In State v. Veazey, 191 N.C. App 181 (2008), the North Carolina Court of Appeals stated the two prong inquiry necessary to determine whether a checkpoint meets federal and state constitutional requirements. First, a Court must determine the primary programmatic purpose of the checkpoint. Second, a Court must determine the reasonableness of the stop based on individual circumstances.
As for the first prong, it is congruent with subsection 2 and 2a of §20-16.3A. This has been thoroughly discussed above.
In discussing the second prong, the Court states, “in 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”. Under Brown, the trial court must consider:
the gravity of the public concerns served by the seizure;
the degree to which the seizure advances the public interest; and
the severity of the interference with individual liberty.
As mentioned earlier, the three prong test in Sitz and in Brown are ostensibly the same. The assessment of whether a checkpoint meets the criteria for the test in one case should be the same for the test in the other. Refer to the discussion of the three prong test in Sitz above.
Mutual Aid Agreements and Checking Stations
§ 160A288. Cooperation between lawenforcement agencies.
(a) In accordance with rules, policies, or guidelines officially adopted by the governing body of the city or county by which he is employed, and subject to any conditions or restrictions included therein, the head of any lawenforcement agency may temporarily provide assistance to another agency in enforcing the laws of North Carolina if so requested in writing by the head of the requesting agency. The assistance may comprise allowing officers of the agency to work temporarily with officers of the requesting agency (including in an undercover capacity) and lending equipment and supplies. While working with the requesting agency under the authority of this section, an officer shall have the same jurisdiction, powers, rights, privileges and immunities (including those relating to the defense of civil actions and payment of judgments) as the officers of the requesting agency in addition to those he normally possesses. While on duty with the requesting agency, he shall be subject to the lawful operational commands of his superior officers in the requesting agency, but he shall for personnel and administrative purposes, remain under the control of his own agency, including for purposes of pay. He shall furthermore be entitled to workers’ compensation and the same benefits when acting pursuant to this section to the same extent as though he were functioning within the normal scope of his duties.
(b) As used in this section:
(1) “Head” means any director or chief officer of a law enforcement agency including the chief of police of a local department, chief of police of county police department, and the sheriff of a county, or an officer of one of the above named agencies to whom the head of that agency has delegated authority to make or grant requests under this section, but only one officer in the agency shall have this delegated authority at any time.
(2) “Law enforcement agency” means only a municipal police department, a county police department, or a sheriff’s department. All other State and local agencies are exempted from the provisions of this section.
(c) This section in no way reduces the jurisdiction or authority of State law enforcement officers.
(d) For purposes of this section, the following shall be considered the equivalent of a municipal police department:
(1) Campus law enforcement agencies established pursuant to G.S. 115D21.1(a) or G.S. 11640.5(a).
(2) Colleges or universities which are licensed, or exempted from licensure, by G.S. 11615 and which employ company police officers commissioned by the Attorney General pursuant to Chapter 74E or Chapter 74G of the General Statutes.
(3) Law enforcement agencies operated or eligible to be operated by a municipality pursuant to G.S. 6353(2).
(4) Butner Public Safety.
(5) A Company Police agency of the Department of Agriculture and Consumer Services commissioned by the Attorney General pursuant to Chapter 74E of the General Statutes.
Each italicized phrase is a required element in establishing statutory compliance, and direct examination of the checking station supervisor should be tailored to them.
In accordance with rules, policies, or guidelines officially adopted by the governing body of the city or county by which he is employed.
In each agency’s written policy for checking stations, mutual aid agreements are discussed. It is the practice of Wake County law enforcement agencies to have on file a mutual aid agreement that coincides with all other county agencies. For example, the Sheriff’s Office has a mutual aid agreement with Garner; Garner has a mutual aid agreement with Cary; Cary has a mutual aid agreement with Zebulon, etc. For motions involving mutually aided checkpoints, the written agreement between the two relevant agencies should be present in court.
The head of any law enforcement agency may temporarily provide assistance to another agency in enforcing the laws of North Carolina if so requested in writing by the head of the requesting agency.
The written request from the head of the requesting agency is a necessary document for a mutually aided checking station motion. The “head” of an agency is a broad definition that includes the language of (b)(1):
Or an officer of one of the above named agencies to whom the head of that agency has delegated authority to make or grant requests under this section, but only one officer in the agency shall have this delegated authority at any time.
The written request for aid usually comes from an officer or staff member who has been given delegated authority to do so from the commanding officer of that agency. This person can range from the supervisor for that specific checkpoint to the agency’s legal counsel. Regardless of who this person is, the written request will always refer to the commanding officer’s delegation. (i.e. “by request of Sheriff D. Harrison…)