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,
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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
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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
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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
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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,
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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
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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.
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Opinion of the Court ¶ 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
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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
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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
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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.
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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.