Checkpoints…are they LEGAL?

A couple of years ago while I was a special prosecutor assigned to impaired driving offenses (DWI cases) at the Wake County District Attorney’s Office I had an opportunity to handle dozens of pre-trial motions to suppress evidence as it relates to an unconstitutional checking station (also known as a DWI checkpoint).  In particular, I reviewed several DWI charges that arose from a checking station plan established in April of 2011 in response to the North Carolina Highway Patrol (NCSHP) providing aid in prevention of DWI violations following the 2011 Triangle Beach Music Festival in Garner, NC.  According to the North Carolina Department of Transportation, more than 10,000 people were in attendance at this event and this checking station resulted in 40 DWI violations.

As a result of my review of these violations I prepared a letter in March of 2012 to my then boss, Wake County District Attorney Colon Willoughby, and pointed out several issues that concerned me regarding this and other checking stations that were being set up in Raleigh and around Wake County.  Specifically regarding the checking station for the 2011 Triangle Beach Music Festival, the plan was established as all plans must be in accordance with N.C.G.S. §20-16.3A.  The plan called for stopping every vehicle and encompassed three separate checking station located on different roads that surrounded this event.  The plan established by the NCSHP called for stopping every vehicle that approaching the checking station from the concerts exit starting at 3:30 pm and end at 7:30 pm that same day.

On its face this appeared to be a satisfactory plan.  N.C.G.S. §20-16.3A provides that a law-enforcement agency may conduct checking stations to determine compliance with motor vehicle laws.  Among other requirements, the statute also necessitates that the law enforcement agency (1) designate a patter both for stopping vehicles and for requesting drivers that are stopped to produce a driver’s license, registration or insurance information, (2) operate under a written policy providing guidelines for the pattern, (3) advise the public that an authorize checking station is being operated, (4) establish a pattern for stopping vehicles and most importantly (5) establish and operate the checking station in accordance with the provisions of the United States Constitution and the Constitution of North Carolina.

Upon further review of this plan, I noticed several issues and pointed them out.

  1. Mutual Aid:

For this checking station (and many others) the NCSHP requested the assistance of other officers and law enforcement agencies to participate in this checking station.  N.C.G.S. §160A-288, gives authority for city and county law enforcement agencies to enter into mutual aid agreements and requires that the agency lending assistance must obtain authority to enter into a mutual assistance agreement from the governing body of its city, town or county.  Once this authority is obtained, a person delegated authority by the agency head, may temporarily provide assistance to another agency if the assistance is requested in writing by the head of the other agency.  Also, the statue requires that once the mutual aid agreement is in existence, any request for assistance must be in writing.

Based upon my review of this checking station, several other law enforcement agencies assisted the NCSHP at this checking station and issued criminal citations.  I also discovered that the NCSHP did not (and often times does not) operate pursuant to a written mutual aid agreement and was in violation of N.C.G.S. §160A-288.  In my opinion, this statutory violation was a flagrant violation of our statutes and would likely result in a Court finding that the appropriate remedy for such an act would be suppression of all evidence obtained from all other law enforcement agencies that were assisting the NCSHP at this checking station.

  1. Constitutionality:

When considering a challenge to a checkpoint, the reviewing court must undertake a two-part inquiry to determine whether a checkpoint meets constitutional requirements.  N.C.G.S. §20-16.3A allows for checkpoints to be used to detect violations of any motor vehicle law.  The first part of the inquiry is whether the checkpoint had a proper primary purpose, which was not at issue here.  Courts have held that there is very little dispute about the magnitude of, and the States’ interest in eradicating, the drunken driving problem (this part of the inquiry calls for a whole separate article that I will write at a later date).  In this specific case, the second part of the inquiry was most at issue and focuses on whether the reasonableness of checkpoint and whether it was conducted in a constitutional manner on the basis of individual circumstances.

To determine whether a seizure at a checkpoint is reasonable requires a balancing of the public’s interest and an individual’s privacy interest.  Brown v. Texas, 443 U.S. 47 (1979).  Part of this balancing looks at the severity of the interference with individual liberty.  For this particular checkpoint, the most relevant factors the court must consider when looking into the reasonableness of this particular seizure, is the severity of the interference with legitimate traffic and the measure of the intrusion on motorists.

A Fourth Amendment seizure occurs when a vehicle is stopped at a checkpoint and where there is governmental termination of freedom of movement.  Since this checking station stopped every vehicle exiting the concert at three different location, every direction of travel leaving the Triangle Beach Music Festival was subject to these suspicion less seizures.  These locations were established in a residential neighborhood where many houses and streets were contained within the checking station grid, subjecting these residents to the seizure as well.  In addition, based upon facts and information provided to me at the time it was known that a motorist that encountered these checkpoints were waiting in traffic for upwards of one hour or more as a result of the three checking stations surrounding the event.

Again, in my opinion this unreasonable interference with legitimate traffic and lengthy termination of one’s freedom of movement may result in a court determining this checking station plan fails the reasonableness inquiry, thus rendering the checking station unconstitutional.

  1. Other Issues:

There certainty were other issues both statutory and constitutional that existed with this and many other checking stations.  In particular to this one, there was a dispute as to whether or not the promoters of the Triangle Beach Music Festival contacted the NCSHP and expressed a need for law enforcement to conduct DWI checkpoints in that area or whether or not the NCSHP were requested to assist solely with the regulation of traffic coming and going from this event.  While this was not a critical issue that may affect the constitutionality of the checking station plan, it was in my opinion potentially exculpatory evidence that may have an additional negative impact on how the Court was to view this plan.

In the end, many of the estimated 40 DWI arrest were correctly dismissed by the State as a result of this review of the checking station plan and others were appropriately dismissed as a result of a pre-trial hearing where the Court also determined both the statutory and constitutional violations existed.

There are many dynamics that a criminal defense attorney and DWI lawyer in Raleigh with knowledge and experience handling checkpoints can review in order to uncover if a constitutional or statutory violation exist.  Consult an aggressive and knowledgeable attorney with courtroom experience in Wake County and Raleigh DWI and checkpoint cases.  I will work hard to ensure that you are protected against government infringement of your rights.  If you have been charged with a crime or DWI as a result of a checkpoint stop, please contact my Raleigh office today to obtain a free in-person consultation to discuss your criminal defense.