An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1369 NORTH CAROLINA COURT OF APPEALS
Filed: 31 December 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County No. 10 CRS 242533 VICTORIA GUTIERREZ TSILIMOS, Defendant.
Appeal by defendant from judgment entered 31 May 2013 by
Judge Richard L. Doughton in Mecklenburg County Superior Court.
Heard in the Court of Appeals 23 April 2014.
Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State.
Arnold & Smith, PLLC, by Laura M. Cobb, for defendant- appellant.
GEER, Judge.
Defendant Victoria Gutierrez Tsilimos appeals from her
conviction of driving while impaired. On appeal, defendant
contends that the trial court erred in denying her motion to
suppress evidence obtained during a checkpoint stop. She
challenges the trial court's finding that the primary
programmatic purpose of the stop was DWI detection and argues -2- that the checkpoint was not tailored to address the stated
purpose and was, therefore, unreasonable. In support of this
contention, defendant argues that the supervising Sergeant's
testimony that the location and timing of the checkpoint was
chosen due to a high rate of DWI arrests and accidents was not
corroborated by documented statistics. This argument addresses
only the credibility of and the weight that should be given to
the Sergeant's testimony -- questions that are solely within the
domain of the trial court. Because the trial court's findings
are supported by competent evidence and those findings support
the court's conclusion that the primary programmatic purpose of
the checkpoint was proper and the checkpoint was reasonable, we
hold that the trial court did not err in denying defendant's
motion to suppress. We find defendant's remaining arguments
also unpersuasive and, therefore, hold that defendant received a
trial free from prejudicial error.
Facts
The State's evidence tended to show the following facts.
Beginning at 11:00 p.m. on 2 September 2010, the Charlotte-
Mecklenburg Police Department ("CMPD") conducted a checkpoint at
the intersection of 5th Street and Caldwell Street and the
intersection of 7th Street and Caldwell Street near downtown
Charlotte, North Carolina. Marked patrol cars and orange -3- reflective signs were posted in both directions of travel at
each checkpoint location to warn approaching motorists of the
upcoming checkpoint. All officers wore police uniforms and
reflective traffic vests.
The purpose of the checkpoint was DWI detection. Sergeant
David Sloan of the CMPD was the supervisor of the checkpoint and
had selected the location in advance. Sergeant Sloan chose the
location because there are close to 100 bars and drinking
establishments in the area and because several impaired driving
related crashes and numerous DWI arrests had occurred in that
area on Thursday, Friday, and Saturday nights. Additionally,
the CMPD had conducted four other checkpoints in the same
location during the previous three to four years, which had
resulted in double digit DWI arrests.
Pursuant to the checkpoint plan, officers were directed to
stop each vehicle, engage the driver in conversation, ask for a
driver's license, and look for signs of impairment. In the
event of an emergency or when traffic became severely congested,
only Sergeant Sloan was authorized to deviate from the directive
to stop every vehicle. Before the checkpoint began, Sergeant
Sloan briefed the 37 participating officers on the plan for the
checkpoint and provided each of them with a written copy of the
plan. -4- At around 2:30 a.m., Officer Charles G. Jamieson of the
CMPD stopped defendant's vehicle. He smelled a very strong odor
of alcohol coming from defendant and observed that her eyes were
red and watery. When asked, defendant admitted that she had
been drinking before operating the vehicle. Officer Jamieson
asked defendant to step out of her vehicle, and he performed a
series of field sobriety tests. Based upon her performance on
the tests, as well as the results of a portable breath test,
Officer Jamieson believed that she had consumed a sufficient
quantity of alcohol to be impaired.
Officer Jamieson arrested defendant and took her to a
portable processing unit called the "BAT mobile," which was a
bus containing an EC/IR II intoxilyzer. At 2:53 a.m., Officer
Jamieson read defendant her chemical analysis rights and
provided her with a written copy of her rights. Defendant did
not exercise her right to contact an attorney or a witness to
view the testing procedure. At 3:08 a.m., defendant submitted
to a breath test and registered a .08 alcohol concentration.
On 8 February 2011, the district court found defendant
guilty of impaired driving. Defendant appealed to superior
court where she filed a motion to suppress. On 29 May 2013,
after a hearing, the trial court entered an order denying the
motion. Defendant's case was tried before a jury on 30 and 31 -5- May 2013. On 31 May 2013, the jury returned a verdict of guilty
of driving while impaired, and the defendant was sentenced to a
presumptive-range term of six months imprisonment. The trial
court suspended defendant's sentence and placed her on
supervised probation for 24 months. Defendant timely appealed
to this Court.
I
Defendant first argues that the trial court erred in
denying her motion to suppress because the checkpoint
constituted an unconstitutional seizure. Our review of a trial
court's denial of a motion to suppress is limited to "whether
the trial court's findings of fact are supported by competent
evidence, and whether these findings of fact support the court's
conclusions of law." State v. Pulliam, 139 N.C. App. 437, 439-
40, 533 S.E.2d 280, 282 (2000). "The trial court's conclusions
of law . . . are fully reviewable on appeal." State v. Hughes,
353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).
It is well established that
"[w]hen considering a challenge to a checkpoint, the reviewing court must undertake a two-part inquiry to determine whether the checkpoint meets constitutional requirements. First, the court must determine the primary programmatic purpose of the checkpoint. . . . Second, if a court finds that police had a legitimate primary programmatic purpose for conducting a checkpoint . . . [the court] must judge its -6- reasonableness, hence, its constitutionality, on the basis of the individual circumstances."
State v. Jarrett, 203 N.C. App. 675, 677, 692 S.E.2d 420, 423
(2010) (quoting State v. Veazey, 191 N.C. App. 181, 185-86, 662
S.E.2d 683, 686-87 (2008)).
Defendant argues that the trial court erred in concluding
that the primary programmatic purpose of the checkpoint was the
detection of impaired driving. In support of this conclusion,
the trial court found, in pertinent part, that:
3. Sgt. David B. Sloan testified that he was the supervising officer on scene and he developed the written checkpoint plan (State's Exhibit #1) for the evening. This location was chosen several weeks before the checkpoint was conducted[.]
4. Sgt. Sloan testified that the purpose of the checkpoint was DWI detection.
. . . .
7. Sgt. Sloan testified that the location was chosen due to the high vehicle crash rate, and high number of DWI arrests in that immediate area. There are also over 100 restaurants and bars in that area.
8. Sgt. Sloan testified that this area had previously been used for checkpoints approximately four times with double digit DWI arrests per checkpoint.
Defendant argues that findings 7 and 8 are not supported by
competent evidence because Sergeant Sloan's testimony was based -7- only on his personal knowledge and is not corroborated by
documentary statistical evidence. Defendant points to CMPD
crime statistics reports submitted into evidence during Sergeant
Sloan's cross-examination that listed only three DWIs in the
vicinity of the checkpoint in the year prior to the checkpoint.
Defendant cites no authority, and we have found none,
requiring an officer to corroborate his testimony with
documentary statistical evidence. This Court has, in fact, held
that comparable testimony based on personal knowledge and
experience as a police officer constitutes competent evidence of
a checkpoint's programmatic purpose. See State v. Dippel, ___
N.C. App ___, ___ S.E.2d. ___, 2014 N.C. App. LEXIS 1260, *10,
2014 WL 6907567, *4 (2014) (unpublished) (holding Sergeant's
testimony that he chose DWI checkpoint location based on his
personal knowledge of prior DWI arrests and crashes in area
constituted competent evidence in support of trial court's
finding that primary programmatic purpose of checkpoint was DWI
detection).
Further, Sergeant Sloan explained that the CMPD reports
included only incidents reported by 911 dispatch and by calls
for service -- the reports did not include officer-generated
arrests. Therefore, Sergeant Sloan explained, the reports were
not an accurate representation of the total number of DWI -8- arrests. To the extent that the documentary statistical
evidence conflicted with Sergeant Sloan's testimony regarding
the frequency of DWI arrests and vehicle crashes in the
checkpoint area, it is well settled that "[i]f there is a
conflict between the state's evidence and defendant's evidence
on material facts, it is the duty of the trial court to resolve
the conflict and such resolution will not be disturbed on
appeal." State v. Chamberlain, 307 N.C. 130, 143, 297 S.E.2d
540, 548 (1982). Here, Sergeant Sloan's failure to produce
supporting statistical documents presented a question of the
weight and credibility to be given his testimony, which was
solely for the trial court to determine.
Next, defendant argues that this case is materially
indistinguishable from State v. Rose, 170 N.C. App. 284, 612
S.E.2d 336 (2005). In Rose, this Court held that the trial
court erred in accepting at face value the officers' stated
purpose of a checkpoint stop without conducting a closer review
of all the evidence presented. Id. at 289, 612 S.E.2d at 340.
Defendant asserts that "[t]he only thing that distinguishes this
case from Rose is the identity of the officer who testified
regarding the primary purpose -- a supervisor as opposed to
'individual officers acting at the scene.'" (Quoting id. at
290, 612 S.E.2d at 340.) We disagree. -9- Defendant misconstrues the holding in Rose. In Rose,
although the officers at the checkpoint testified that the
purpose of the stop was to check licenses and registrations, the
officers also testified that the checkpoint was spontaneous, and
no plan had been created ahead of time. Id. at 291, 612 S.E.2d
at 341. In addition, there was no evidence presented as to why
the specific location for the checkpoint was chosen or if that
area had a problem with unlicensed or unregistered drivers. Id.
at 294, 612 S.E.2d at 342-43. Additionally, four of the five
officers involved in the checkpoint were narcotics detectives,
and the defendant had been arrested for possession of drugs and
a weapon and not for a faulty license or registration. Id. at
285, 290, 612 S.E.2d at 338, 340. In conducting the checkpoint,
one officer would check the drivers' licenses and registrations
while a second officer would "scan the inside of the vehicle and
walk around it." Id. at 292, 612 S.E.2d at 341. This Court
noted that this evidence suggested that "the function of the
second officer may have been to scan for possible criminal
activity." Id.
As explained by this Court in State v. Burroughs, 185 N.C.
App. 496, 501, 648 S.E.2d 561, 565 (2007), "our holding in Rose
was that where contradictory evidence exists as to the actual
primary purpose of a checkpoint program, the trial court must -10- examine the available evidence to determine the actual purpose,
because bare assertions of a constitutional purpose cannot be
allowed to mask actual purposes that are unconstitutional." As
this Court further explained in Burroughs, in Rose,
this Court was forced to closely examine the facts surrounding the checkpoint's purpose because its alleged purpose -- to check licenses and registrations, which the Supreme Court has held to be constitutional -- was belied by substantial evidence to the contrary showing the checkpoint's actual purpose was almost certainly to check for narcotics, which the Supreme Court has expressly held to be unconstitutional. This, then, is why this Court held in Rose that the trial court was required to make findings of fact as to the checkpoint's purpose: Not because every trial court in every case must make such findings of fact, but because in this specific case, bare statements that the checkpoint had a constitutional purpose were unreliable.
Id. at 502, 648 S.E.2d at 565.
In this case, unlike in Rose, there was no evidence
presented that suggests that the checkpoint was for any purpose
other than to detect DWIs. Thus, we conclude that the trial
court did not err in concluding that the primary programmatic
purpose for the checkpoint was DWI detection. See Burroughs,
185 N.C. App. at 503, 648 S.E.2d at 565-66 (holding that
evidence was sufficient to establish constitutional purpose when
no evidence suggested that stated purpose of checkpoint -- -11- checking for sobriety -- was a mask for another,
unconstitutional purpose).
"After finding a legitimate programmatic purpose, the trial
court must determine whether the roadblock was reasonable and,
thus, constitutional." State v. Townsend, ___ N.C. App. ___,
___, 762 S.E.2d 898, 907 (2014). In analyzing the
reasonableness of a checkpoint, this Court balances the public's
interest and the individual's privacy interest by applying the
three-prong test set out in Brown v. Texas, 443 U.S. 47, 50-51,
61 L. Ed. 2d 357, 362, 99 S. Ct. 2637, 2640 (1979). "Under
Brown, the trial court must consider '[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.'" Jarrett, 203
N.C. App. at 679, 692 S.E.2d at 425 (quoting Rose, 170 N.C. App.
at 293-94, 612 S.E.2d at 342).
"The first Brown factor -- the gravity of the public
concerns served by the seizure -- analyzes the importance of the
purpose of the checkpoint. This factor is addressed by first
identifying the primary programmatic purpose . . . and then
assessing the importance of the particular stop to the public."
Rose, 170 N.C. App. at 294, 612 S.E.2d at 342 (internal citation
omitted). This Court has held that the first Brown factor is -12- satisfied where the purpose of the stop is DWI detection. See
Townsend, ___ N.C. App. at ___, 762 S.E.2d at 908. Accordingly,
we hold that the first Brown factor is met in this case.
The second Brown factor "requires the trial court to
determine whether '[t]he police appropriately tailored their
checkpoint stops to fit their primary purpose.'" Id. at ___,
762 S.E.2d at 908 (quoting Veazey, 191 N.C. App. at 191, 662
S.E.2d at 690).
"Our Court has previously identified a number of non-exclusive factors that courts should consider when determining whether a checkpoint is appropriately tailored, including: 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 police offered any reason why that particular time span was selected."
Id. at ___, 762 S.E.2d at 908 (quoting Veazey, 191 N.C. App. at
191, 662 S.E.2d at 690).
Here, the trial court found that the checkpoint was
scheduled to run from 11:00 p.m. until 3:30 a.m.; that the
location was chosen in advance; the location was selected due to
a high vehicle crash rate and high number of DWI arrests in the
area, and because there are over 100 restaurants and bars in the
area; and that the area had previously been used for checkpoints -13- approximately four times with double digit DWI arrests per
checkpoint. As we have already concluded, these findings are
supported by competent evidence in the record.
Defendant, however, points to evidence that the timing and
placement of the checkpoints -- two per year in each of 13
divisions throughout the city -- is linked to the availability
of the BAT mobile and the timing of the "Booze it or Lose it"
campaign. We fail to see how those circumstances conflict with
the above findings or otherwise further defendant's argument
that the checkpoint was not appropriately tailored to detect
impaired driving. Indeed, the BAT mobile allows the officers to
conduct the checkpoint more efficiently.
We hold that the trial court's findings "indicate that the
trial court considered appropriate factors to determine whether
the checkpoint was sufficiently tailored to fit its primary
purpose, satisfying the second Brown prong." Jarrett, 203 N.C.
App. at 680-81, 692 S.E.2d at 425. See also Townsend, ___ N.C.
App. at ___, 762 S.E.2d at 908 (second Brown prong satisfied
where trial court found that DWI checkpoint had fixed starting
and ending times, checkpoint was located near shopping area
where alcohol was served, location was selected based on
impaired driving statistics, and checkpoint was conducted
according to written plan). -14- Defendant concedes that the third Brown factor -- the
severity of the interference with individual liberty -- is met.
Consequently, we conclude that the trial court's order contained
adequate findings of fact, supported by competent evidence, to
identify the primary programmatic purpose of the checkpoint and
to satisfy the three factors of the Brown reasonableness test.
These findings in turn support the trial court's conclusion that
the checkpoint was constitutional. Accordingly, we affirm the
suppression order.1
II
Defendant next argues that the trial court erred by failing
to declare a mistrial after the arresting officer testified that
he performed a portable breath test on defendant. We review a
trial court's decision whether to declare a mistrial for abuse
of discretion. State v. McCarver, 341 N.C. 364, 383, 462 S.E.2d
25, 36 (1995).
This issue is controlled by State v. Fuller, 176 N.C. App.
104, 626 S.E.2d 655 (2006). In Fuller, the arresting officer
was asked during the defendant's DWI trial what he relied upon 1 Defendant additionally argued that various other findings of fact were not supported by sufficient evidence, but, even accepting without deciding the validity of defendant's arguments, she has failed to show that any of these other findings of fact are material to the trial court's determination of the primary programmatic purpose of the stop and that the roadblock was reasonable. We, therefore, need not address those arguments. -15- to determine that the defendant was impaired prior to arresting
her. He testified that he relied upon "'[a] strong odor of
alcohol . . . red glassy eyes, her speech, and then also with
the backings of an Alco-Sensor test that was performed.'" Id.
at 109, 626 S.E.2d at 658. The trial court sustained the
defendant's objection to the officer's reference to the Alco-
Sensor test and instructed the jury to disregard the statement,
but denied defendant's motion for a mistrial. Id. at 106, 626
S.E.2d at 657.
On appeal, this Court held that the admissibility of
portable alcohol screening tests is governed by N.C. Gen. Stat.
§ 20-16.3(d) (2003). Fuller, 176 N.C. App. at 109, 626 S.E.2d
at 658. Pursuant to N.C. Gen. Stat. § 20-16.3(d) (2003),
[t]he results of an alcohol screening test or a driver's refusal to submit may be used by a law-enforcement officer, a court, or an administrative agency in determining if there are reasonable grounds for believing that the driver has committed an implied- consent offense under G.S. 20-16.2. Negative or low results on the alcohol screening test may be used in factually appropriate cases by the officer, a court, or an administrative agency in determining whether a person's alleged impairment is caused by an impairing substance other than alcohol. Except as provided in this subsection, the results of an alcohol screening test may not be admitted in evidence in any court or administrative proceeding. -16- The Court in Fuller reasoned that the officer's testimony
did not violate N.C. Gen. Stat. § 20-16.3(d) because he "did not
testify regarding the results of the Alco-Sensor test, only that
one was administered." 176 N.C. App. at 109, 626 S.E.2d at 658.
Because "[t]he results of an alcohol screening test may be used
by an officer to determine if there are reasonable grounds to
believe that a 'driver has committed an implied-consent offense
under G.S. 16.2[,]'" the officer's "testimony that he relied on
the alcohol screening in making the determination that he had
reasonable grounds to arrest defendant for DWI was properly
admissible." Id. (quoting N.C. Gen. Stat. § 20-16.3(d) (2003)).
Subsequent to Fuller, our General Assembly amended N.C.
Gen. Stat. § 20-16.3(d). See 2006 N.C. Sess. Law 253 § 7. N.C.
Gen. Stat. § 20-16.3(d) (2013) provides, in relevant part, that:
The fact that a driver showed a positive or negative result on an alcohol screening test, but not the actual alcohol concentration result . . . is admissible in a court . . . in determining if there are reasonable grounds for believing:
(1) That the driver has committed an implied-consent offense under G.S. 20-16.2; and
(2) That the driver had consumed alcohol and that the driver had in his or her body previously consumed alcohol, but not to prove a particular alcohol concentration. -17- The amended statute is consistent with Fuller's holding
that the fact that an Alco-Sensor test was administered is
admissible to show that the arresting officer had reasonable
grounds to believe that the defendant had committed an implied-
consent offense.
Here, Officer Jamieson testified that he believed that
defendant was impaired "based on the [field sobriety] tests, the
odor, and a portable breath test." Defendant argues that
Officer Jamieson's testimony is distinguishable from the
testimony in Fuller because "[u]nlike in Fuller, where the
testimony regarding the Alco-Sensor was made in the probable-
cause context, Officer Jamieson's testimony occurred at the
close of the State's case, at a point at which the Prosecutor's
questions appeared to lead Officer Jamieson to communicate to
the jury that, inter alia, Defendant was guilty." The testimony
in both cases, however, was made in the presence of the jury and
in response to a question regarding what the officer relied upon
in determining that the defendant was impaired prior to arrest.
See Fuller, 176 N.C. App. at 109, 626 S.E.2d at 658. Officer
Jamieson's testimony, therefore, like the testimony in Fuller,
addressed the question of probable cause and was admissible
under N.C. Gen. Stat. § 20-16.3(d). -18- Even assuming that Officer Jamieson's testimony was
inadmissible, defendant has failed to show that she was
prejudiced. Immediately after Officer Jamieson's testimony, the
trial court instructed the jury to dismiss the statement and not
consider it in its deliberations. Additionally, there was
substantial evidence of defendant's guilt. Officer Jamieson
testified that defendant had a very strong odor of alcohol
coming from her person; that she had red, watery eyes; that she
admitted to drinking prior to driving; and that she performed
poorly on all three field sobriety tests. Significantly, the
Intoximeter breath test indicated that defendant had an alcohol
concentration of .08.
The Intoximeter breath test alone constituted sufficient
evidence to convict defendant of DWI. See N.C. Gen. Stat. § 20-
138.1(a)(2) (2013) (providing that person is guilty of DWI if
she drives a vehicle "[a]fter having consumed sufficient alcohol
that [s]he has, at any relevant time after the driving, an
alcohol concentration of 0.08 or more" and that "[t]he results
of a chemical analysis shall be deemed sufficient evidence to
prove a person's alcohol concentration"). In light of this
evidence, defendant has failed to show that there is a
reasonable possibility that had the portable breath test not
been mentioned, a different result would have been reached at -19- trial. See N.C. Gen. Stat. § 15A-1443 (2013). We hold that the
trial court did not abuse its discretion by failing to declare a
mistrial.
Affirmed.
Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).