Attacking a DWI Checkpoint

North Carolina allows law enforcement to use checkpoints to stop a vehicle even if there is no suspicious or illegal behavior observed by officers.

However, the checkpoint must pass both Constitutional and statutory muster in order for the stop to be legal.

This article will focus on the potential attacks to challenging a DWI checkpoint.

Fourth Amendment on Checkpoints

Begin any argument attacking the validity of a Checkpoint with the highest law in the land: The Constitution. The Fourth Amendment protects individuals “against unreasonable searches and seizures.” U.S. Const. amend. IV. “A traffic stop is a seizure even though the purpose of the stop is limited and the resulting detention quite brief.” State v. Barnard, 362 N.C. 244, 246 (2008).

The United States Supreme Court has held, “[t]he principal protection of Fourth Amendment rights at checkpoints lies in appropriate limitations on the scope of the stop.” United States v. Martinez-Fuerte, 428 U.S. 543, 566-67 (1976).

Argue to the judge that both Federal and state courts have long held that a checkpoint stop, a stop without individualized suspicion of wrongdoing, is presumed to be unreasonable. City of Indianapolis v. Edmond, 531 U.S. 32 (2000); State v. Rose, 170 N.C. App. 284 (2005).

To be Constitutionally valid the checkpoint must (1) have a legitimate primary programmatic purpose, and (2) be reasonable.

Primary Programmatic Purpose

The Supreme Court has held that where the “primary purpose of the . . . checkpoint . . . is ultimately indistinguishable from the general interest in crime control, the checkpoint[] violate[s] the Fourth Amendment.” City of Indianapolis v. Edmond, 531 U.S. at 48.

To determine the primary programmatic purpose a judge must consider all the available evidence. Ferguson v. City of Charleston, 532 U.S. 67, 81 (2001). The primary purpose might be identified in a written checkpoint plan. The officer supervising the checkpoint might also be able to testify about the programmatic purpose of the checkpoint.

However, the State’s asserted purpose for the checkpoint is not enough to establish a legitimate purpose. Id. (a trial court may not “simply accept the State’s invocation” of a proper purpose, but rather “carr[y] out a close review of the scheme at issue.”).

Avoiding a finding of general crime control is not achieved simply by asserting one legitimate purpose of the checkpoint. City of Indianapolis v. Edmond, 531 U.S. at 46. (“If this were the case . . ., law enforcement authorities would be able to establish checkpoints for virtually any purpose so long as they also included a license or sobriety check.”)

Surely an illegal multi-purpose checkpoint cannot be made legal by the simple device of assigning `the primary purpose’ to one objective instead of the other, especially since that change is unlikely to be reflected in any significant change in the magnitude of the intrusion suffered by the checkpoint detainee.
Wayne R. LaFave, Search and Seizure § 9.7(b), at 709 (4th ed. 2004).

State v. Rose, provides a great roadmap for the requirement for the State to present evidence of a proper primary programmatic purpose.

Reasonableness of the Checkpoint

If the primary programmatic purpose of the checkpoint is valid, the Court must determine if the checkpoint [i.e. seizure] is reasonable. The Supreme Court has developed a three-part balancing test to weigh the public’s interest in the checkpoint against the individual’s Fourth Amendment privacy interest:

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.

Source: Brown v. Texas, 443 U.S. 47, 51 (1979).

Gravity of the Public Concerns Served by the Seizure

If the primary programmatic purpose of the checkpoint is legitimate, this prong of the reasonableness test may be difficult to attack. The Supreme Court and North Carolina Courts have found that “license and registration checkpoints advance an important purpose.” See Rose, 170 N.C. App. at 294.

Degree to Which the Seizure advances the Public Interest

The second prong of the three-part reasonableness test assesses how the police checkpoint has been appropriately tailored to fit its primary purpose. Illinois v. Lidster, 540 U.S. 419, 427 (2004). To assess this prong, the Rose Court identified several non-exclusive factors to consider:

• 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 the police offered any reason why that particular time span was selected.

Effective cross-examination of law enforcement will draw out whether police have addressed these factors in planning a checkpoint.

Severity of the Interference with Individual Liberty

The final prong of Brown’s three-part reasonableness test focuses on the individual discretion of police officers conducting the checkpoint. The courts need “to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. . . . [T]he seizure must be carried out pursuant to a plan embodying explicit neutral limitations on the conduct of individual officers.” Id. at 51. Like the second prong, the courts have identified a number of non-exclusive factors to utilize in assessing the severity of the interference with individual liberty:

• The checkpoint’s 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’ authority;
• Whether police operated the checkpoint pursuant to any oral or written guidelines;
• Whether officers were subject to any form of supervision; and
• Whether the officers received permission from their supervising officer to conduct the checkpoint.
  Source: State v. Veazey, 191 N.C. App. 181 (2008).

These and other factors are not “lynchpin[s], but instead [are] circumstance[s] to be considered as part of the totality of the circumstances in examining the reasonableness of a checkpoint.” Rose, 170 N.C. App at 298. Effective cross-examination of the stopping officer involved with a vehicle at a checkpoint will uncover the amount individual discretion the officer had at a checkpoint.

Statutory Attacks to a Checkpoint

If a checkpoint is Constitutionally valid, it must still meet North Carolina’s statutory requirements for a checkpoint. Under N.C.G.S. 20-16.3A(a), law enforcement conducting a checkpoint must:

• Designate in advance of the patter for stopping vehicles and what type of information and documentation will be requested from drivers;
• Operate the checkpoint under a written checkpoint policy; and
• Have at least one law enforcement vehicle with blue lights on during the checkpoint.

In addition to the cases cited in this article, the North Carolina Court of Appeals has issued recent opinions that offer quality analysis on checkpoints and the legal framework involved in checkpoint cases:

1. State v. Ashworth, 790 S.E.2d 173 (2016)
2. State v. Nolan, 712 S.E.2d 279 (2011)

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