State v. Macke

• Court: Court of Appeals of North Carolina
• Decided: March 16, 2021
• Docket: 20-293
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-70

No. COA20-293

Filed 16 March 2021

Macon County, No. 18 CRS 000220

STATE OF NORTH CAROLINA

v.

MICHAEL MAYO MACKE

Appeal by defendant from judgment entered 3 December 2019 by Judge

William A. Wood II in Macon County Superior Court. Heard in the Court of Appeals

24 February 2021.

Attorney General Joshua H. Stein, by Assistant Attorney General Jessica Macari, for the State.

Grace, Tisdale & Clifton, P.A., by Michael A. Grace, for defendant-appellant.

TYSON, Judge.

¶1 Michael Mayo Macke (“Defendant”) appeals from a judgment entered upon his

guilty plea. We affirm.

I. Background

¶2 Troopers from the North Carolina State Highway Patrol (“NCSHP”) conducted

a checkpoint on “Depot Street” in Macon County, on the evening of 26 August 2016, STATE V. MACKE

Opinion of the Court

as a part of a statewide initiative of high-profile traffic monitoring. Officers selected

this location on “Depot Street” because of good visibility and sufficient room for

vehicles to safely pull off the road.

¶3 The troopers stopped every vehicle that approached to request a driver’s

license and to observe for signs of impairment. The troopers conducted the checkpoint

from 11:10 p.m. to 1:30 a.m. Troopers followed the procedures set forth on the

NCSHP Checking Station Authorization Form.

¶4 Around 11:42 p.m., a black Cadillac SUV driven by Defendant approached the

checkpoint. Trooper Jonathan Gibbs approached the vehicle to ask Defendant for his

driver’s license. As Defendant was looking for his driver’s license another car pulled

behind Defendant’s car. Trooper Gibbs asked Defendant to pull over to the side of

the road to continue looking.

¶5 After pulling over, Defendant provided his driver’s license. Trooper Gibbs

noticed “an odor of alcohol coming from [Defendant]’s breath and could see that he

had red glassy eyes.” Trooper Gibbs asked Defendant if he had any alcohol to drink

and Defendant responded, “he had a few about five hours ago.” Trooper Gibbs then

asked Defendant to step out of his vehicle and go to the front right passenger’s side

of the vehicle.

¶6 When Defendant exited the vehicle, he was unsteady on his feet and used the

vehicle to support himself as he was walking around the vehicle. While performing STATE V. MACKE

the Walking and Turn test, he missed placing his heel-to-toe four times and used his

arms to balance one time on the way out; he performed the turn inconsistent with

instructions; and, upon the return, he missed placing his heel-to-toe three times,

stepped off the line one time, and took ten steps instead of the nine steps as

instructed.

¶7 While performing the One Leg Stand Test, Defendant was unable “to keep his

foot up longer than three seconds, swayed left and right while balancing, used both

arms for balance, and was hopping.” Defendant was unable to touch the tip of his

nose with the tip of his finger in the Finger to Nose test. Finally, while performing

the Romberg Balance Test, Defendant swayed back and forth two or more inches and

estimated 49 seconds instead of 30 seconds as instructed.

¶8 Trooper Gibbs reported while Defendant was in the patrol car being

transported to jail, Defendant stated he had about $2,000 in cash on him and offered

it to Trooper Gibbs if the officer would let him go. Defendant submitted to the Intox

EC/IR II intoximeter, which registered a blood alcohol reading of .10.

¶9 Defendant was indicted for offering a bribe and driving while impaired on 14

May 2018. Defendant filed a motion to suppress evidence from the checkpoint,

arguing the checkpoint violated his Fourth Amendment rights and NCSHP

departmental guidelines. Defendant also argued N.C. Gen. Stat. § 20-16 (2019) was

facially invalid and violated the “fundamental right to travel”; violated “Defendant’s STATE V. MACKE

Constitutional right to equal protection of the laws pursuant to the Privileges or

Immunities Clause and the Equal Protection Clause, which are guaranteed by the

Fourteenth Amendment to the United States Constitution” on 28 October 2019.

¶ 10 Defendant also filed a motion to dismiss based upon vindictive prosecution on

18 November 2019. The trial court denied both motions. The trial court noted

Defendant’s objections to the motion to suppress. Defendant pleaded guilty to driving

while impaired. The charge of offering a bribe was dismissed. Defendant was

sentenced to a term of 120 days in custody, which was suspended. He was placed on

18 months of unsupervised probation. Defendant’s driver’s license was revoked and

he was ordered to pay costs, fees, and fines totaling $1,085.00. Defendant appeals

the preserved denial of his motion to suppress.

II. Jurisdiction

¶ 11 This Court possesses jurisdiction pursuant to N.C. Gen. Stat. § 15A-979(b)

(2019).

III. Issues

¶ 12 Defendant argues: (1) the creation and operation of the checkpoint was not a

valid exercise of the State’s police power; (2) N.C. Gen. Stat. § 20-16.3A violates the

fundamental right to travel pursuant to the Privileges or Immunities Clause; (3) N.C.

Gen. Stat. § 20-16.3A violates the Equal Protection Clause; and, (4) in light of the

unconstitutionality of N.C. Gen. Stat. § 20-16.3A the trial court erred in denying his STATE V. MACKE

motion to suppress.

IV. Standard of Review

¶ 13 Our Supreme Court has held:

The standard of review in evaluating the denial of a motion to suppress is whether competent evidence supports the trial court’s findings of fact and whether the findings of fact support the conclusions of law. However, when . . . the trial court’s findings of fact are not challenged on appeal, they are deemed to be supported by competent evidence and are binding on appeal. Conclusions of law are reviewed de novo and are subject to full review. Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal.

State v. Biber, 365 N.C. 162, 167-68 712 S.E.2d 874, 878 (2011) (citations and

quotation marks omitted).

V. Programmatic Purpose

¶ 14 Defendant contends the checkpoint did not serve a valid programmatic

purpose, was an invalid exercise of the State’s police power, and constituted an

unreasonable search in violation of Defendant’s rights under the Fourth and

Fourteenth Amendments. U.S. Const. amend. IV & XIV.

¶ 15 The Supreme Court of the United States, the North Carolina Supreme Court,

and this Court have held the Fourth Amendment’s reasonableness standard for a

search or seizure is to be based upon either consent or individualized suspicion. See

Terry v Ohio, 392 U.S. 1, 20-21, 20 L. Ed. 2d 889, 905-06 (1968); State v. Williams, STATE V. MACKE

366 N.C. 110, 116, 726 S.E.2d 161, 167 (2012); State v. Veazey, 191 N.C. App. 181,

184, 662 S.E.2d 683, 686 (2008). The Supreme Court of the United States has

recognized an exception to this requirement for roadside checkpoints without consent

or an individualized suspicion, provided the purpose of the checkpoint is legitimate

and the procedures surrounding the checkpoint are reasonable. United States v.

Martinez-Fuerte, 428 U.S. 543, 561-62, 49 L. Ed. 2d 1116, 1130-31 (1976).

¶ 16 Our Court has held: “a checkpoint with an invalid primary purpose, such as

checking for illegal narcotics, cannot be saved by adding a lawful secondary purpose

to the checkpoint, such as checking for intoxicated drivers.” Veazey, 191 N.C. App. at

185, 662 S.E.2d at 686. To evaluate the legitimacy of a checkpoint, a two-part inquiry

is required.

¶ 17 “First, the court must determine the primary programmatic purpose of the

checkpoint.” Id. The checkpoint must be aimed at addressing a “specific highway

safety threat” and not for general crime control. “[C]heckpoints primarily aimed at

addressing immediate highway safety threats can justify the intrusions on drivers’

Fourth Amendment privacy interests occasioned by suspicionless stops.” Id. If the

police have a general crime control aim, an individualized suspicion must exist. Id.

(citing City of Indianapolis v. Edmond, 531 U.S. 32, 41-42, 148 L. Ed. 2d 333, 343-44

(2000) (checkpoint with a primary purpose of finding illegal narcotics held

unconstitutional)). The Supreme Court of the United States stated valid “specific STATE V. MACKE

highway safety threats” to support legitimate checkpoints include finding intoxicated

drivers, checking for valid driver’s licenses, and verifying vehicle registrations.

Michigan State Police v. Sitz, 496 U.S. 444, 455, 110 L. Ed. 2d 412, 423 (1990);

Delaware v. Prouse, 440 U.S. 648, 663, 59 L. Ed. 2d 660, 673-74 (1979).

¶ 18 “Second, if a court finds that police had a legitimate primary programmatic

purpose for conducting a checkpoint, that does not mean the stop is automatically, or

even presumptively, constitutional. It simply means that the court must judge its

reasonableness, hence, its constitutionality, on the basis of the individual

circumstances.” Veazey, 191 N.C. App. at 185-86, 662 S.E.2d at 686-87 (citation

omitted). A court must weigh “[(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.” Id. at 186, 662 S.E.2d at 687

(citing Illinois v. Lidster, 540 U.S. 419, 427-28, 157 L. Ed. 843, 852-53 (2004)).

¶ 19 The State presented testimony of Troopers Jonathan Gibbs and David

Williams at the hearing on the motion to suppress. They testified they and several

other officers conducted a traffic checkpoint with the prior approval of their superior

officer on the day of the offense. Trooper Williams testified to how the checkpoint

was set up, the procedures and duration of the checkpoint, how the stops would be

conducted, and why they had changed locations. During the checkpoint, a patrol car

had its blue lights active at all times. STATE V. MACKE

¶ 20 Trooper Williams further testified how the checkpoint location changed

approximately every thirty minutes to avoid identification of the checkpoint on the

mobile direction application Waze. Through Troper Williams’ testimony, the State

showed the troopers’ compliance with the NCSHP policy on traffic checkpoints, and

the prior authorization for the checking station. This testimony was admitted into

evidence without Defendant’s objection.

¶ 21 Based on this and other evidence presented at the hearing, the trial court

denied Defendant’s motion to suppress. The trial court found the purpose of the

checkpoint was “to check each driver for a valid driver’s license and evidence of

impairment.” The trial court concluded: (1) this was a valid and constitutional

programmatic purpose; (2) the checkpoint was subject to a detailed plan and not

spontaneous; (3) the location and time span were reasonable; (4) the interference with

the public was minimal; and, (5) Defendant’s rights were not violated by the manner

in which the checkpoint was conducted.

¶ 22 Defendant asserts the troopers changing the location of the checkpoint

throughout the evening is not a programmatic purpose. However, this change was

planned prior to and was contained in the authorization of the plan by Trooper

Williams’ supervisors. Unlike the facts in State v. Rose, 170 N.C. App. 284, 291-97,

612 S.E.2d 336, 341-44 (2005), cited by Defendant, wherein officers admitted there

was not an established plan before the checkpoint was set up and narcotics detectives STATE V. MACKE

were involved in the operation of the checkpoint, here, the troopers stopped every

vehicle that entered the checkpoint, as the plan outlined. No narcotics officers or

drug dogs were present on the scene, and no drug test kits were implemented on the

scene. Troopers moved to another location based upon a plan after a set duration.

¶ 23 Based upon the troopers’ testimony, the trial court properly determined the

programmatic purpose of the checkpoint was to check for a valid driver’s license and

for evidence of impairment. The court further found these purposes were valid

programmatic purposes, which were reasonable under the circumstances. The trial

court correctly made all requisite findings necessary to support its ultimate

conclusion. The trial court did not err in denying Defendant’s motion to suppress on

the basis of the checkpoint’s programmatic purpose. Defendant’s argument is

overruled.

VI. Right to Travel

¶ 24 Defendant argues N.C. Gen. Stat. § 20-16.3A violates the right to travel

pursuant to the Privileges or Immunities Clause. U.S. Const. amend. XIV, § 1. Our

Supreme Court held: “The police power of the State is broad enough to sustain the

promulgation and fair enforcement of laws designed to restore the right of safe travel

by temporarily restricting all travel, other than necessary movement reasonably

excepted from the prohibition.” State v. Dobbins, 277 N.C. 484, 499, 178 S.E.2d 449,

458 (1971) (city declaring a state of emergency and imposing a city-wide curfew with STATE V. MACKE

specified exceptions for emergencies and necessary travel is a valid exercise of the

police power).

¶ 25 The checkpoint at issue was established with the express purpose of finding

and deterring traffic violations and impaired drivers, both of which are valid public

safety concerns. This authority was established by our General Assembly in N.C.

Gen. Stat. § 20-16.3A, which authorizes the creation of traffic checkpoints for such

purposes. A traffic checkpoint, with a purpose to discover and deter traffic violations,

which does not stop travel altogether and only delays travel for a few moments, does

not violate the right to free travel. N.C. Gen. Stat. § 20-16.3A is presumed to be

constitutional, and Defendant has failed to show a violation of his constitutional

rights. Id.

¶ 26 The trial court did not err in holding the checkpoint did not violate Defendant’s

constitutional right to freely travel and properly denied Defendant’s motion to

suppress on this basis.

VII. Equal Protection

¶ 27 Defendant argues N.C. Gen. Stat. § 20-16.3A is drafted to make it difficult to

establish the discriminatory intent required to show a violation of the Equal

Protection Clause. U.S. Const. amend. XIV, § 1.

¶ 28 Defendant cites N.C. Gen. Stat. § 20-16.3A(d), which provides: “The placement

of checkpoints should be random or statistically indicated, and agencies shall avoid STATE V. MACKE

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.” N.C. Gen. Stat. § 20-16.3A(d). Defendant

asserts N.C. Gen. Stat. § 20-16.3A(d) disallows any and all challenges to equal

protection in violation of the Equal Protection Clause. U.S. Const. amend. XIV, § 1.

¶ 29 The previous subsection of the same statute, N.C. Gen. Stat. § 20-16.3A(c),

provides: “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.” Contrary

to Defendant’s assertions, N.C. Gen. Stat. § 20-16.3A(d) allows a defendant to

challenge a checkpoint under both the Constitution of the United States and the

North Carolina Constitution.

¶ 30 The trial court did not err in holding the checkpoint did not violate Defendant’s

constitutional right to equal protection of the laws and by denying Defendant’s motion

to suppress. Defendant’s arguments are overruled.

VIII. Constitutionality

¶ 31 Here, as before the trial court, Defendant asserts N.C. Gen. Stat. § 20-16.3A is

unconstitutional, the checkpoint was unlawful, and the trial court erred in denying

his motions to suppress and dismiss. As we have held the checkpoint had a valid

programmatic purpose, the statute did not violate Defendant’s right to free travel. STATE V. MACKE

The statute did not violate Defendant’s rights under the Privileges or Immunities and

the Equal Protection Clauses of the Fourteenth Amendment. U.S. Const. amend.

XIV, Defendant’s argument is dismissed.

IX. Conclusion

¶ 32 The trial court property concluded the checkpoint had a valid programmatic

purpose. N.C. Gen. Stat. § 20-16.3A does not violate Defendant’s right to free travel

nor the Equal Protection Clause. The trial court properly denied Defendant’s motion

to suppress. The judgment entered upon Defendant’s guilty plea is affirmed. It is so

ordered.

AFFIRMED.

Judges COLLINS and WOOD concur.