STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
DISTRICT COURT DIVISION
COUNTY OF _______ FILE NO.
STATE OF NORTH CAROLINA,
vs. PRELIMINARY INDICATION
ON DEFENDANT’S
_________________, MOTION TO SUPRESSS
Defendant.
THIS CAUSE, coming on to be heard by the Honorable _________. during the December 10, 2009 session of __________ County Criminal District Court, for hearing the Defendant’s motion to suppress, with the State being represented by ______________ of the District Attorney’s Office, and the Defendant being present and represented by ___________ of the ________ County Bar. After giving due consideration to the evidence of the parties, argument of counsel, and documents of record, the Court enters the following preliminary findings of fact, based on the greater weight of the evidence:
PRELIMINARY FINDINGS OF FACT
1. On June 6, 2009 the Defendant was charged with driving while impaired after being detained at a license checkpoint conducted by members of the _________ County Sheriff’s Department.
2. Defense counsel duly filed and served the State with a written notice of his intent to argue a motion to suppress evidence obtained by the police, based on alleged violations of his right to be free from unlawful searches and seizures.
3. This matter came for hearing on December 10, 2009, specifically to address the Defendant’s suppression arguments.
4. Testifying for the State was Sgt. ____________ of the _______ County’s Sheriff’s Department. Sgt. __________ indicated that he was the shift supervisor on duty June 6, 2009, and that at some point after he came on duty at 6:00 p.m. that evening he decided to conduct a license checkpoint. He was not able to recall when he decided to conduct the checkpoint, only that the decision was made after his shift started.
5. Sgt. __________ contacted other deputies that were on duty to obtain their assistance during the checkpoint. Sgt. ________ did not recall if he spoke with the other deputies in person or over the radio, or when he made contact with them, or the exact content of their conversation.
6. The license checkpoint took place near ________, North Carolina at the intersection of ______ Road and ________ Avenue. Sgt. ________ testified that this location was picked by him at “random,” and without any consideration as to prior traffic violations or accidents occurring in the area.
7. There was not a preplanned start or end time for the checkpoint, nor were written guidelines prepared for the checkpoint prior to it taking place.
8. After the checkpoint was completed, a written summary was prepared by the police, indicated it started at 8:15 p.m. and ended at 11:05 p.m. According to the summary, only one person (the defendant) was charged with impaired driving, one person was charged with driving while license revoked, and four other motorists were cited for driving without an operator’s license.
9. No evidence was presented by the State to show the strength of the public interest in conducting this particular checkpoint at this specific location during the evening hours of June 6, 2009. Rather, it appears the decision to have the checkpoint was largely spontaneous and without giving consideration of the factors discussed in Brown v. Texas, 443 U.S. 47 (1979) and State v. Veazey, 191 N.C. App. 181 (2008).
10. The Defendant was driving a vehicle when he came upon the checkpoint. He stopped at the checkpoint, leading to his questioning, detention, and ultimate arrest for impaired driving.
11. The State did not carry their burden of proof to establish the legality of the license checkpoint and the Defendant’s seizure, such that the Court’s preliminary indication is to grant the motion to suppress.
Based on the foregoing Preliminary Findings of Fact, the Court enters the following Preliminary Conclusions of Law:
1. That it has jurisdiction over the parties hereto and subject matter contained herein.
2. That this matter is properly before the Court.
3. That the Court is of the opinion that the State has failed to demonstrate the validity of the license checkpoint, based on the holdings of Brown and Veasey and the cases cited therein, such that the Defendant’s motion to suppress should be allowed.
4. The entry of this preliminary ruling is without prejudice to the State’s right of appeal as set out in N.C.G.S. 20-38.7.
Wherefore, it is ordered, adjudged, and decreed as follows:
1. That the preliminary ruling of the Court is that the Defendant’s motion to dismiss should be allowed, subject to the appeal provisions of N.C.G.S. 20-38.7.
2. This matter is continued to January 6, 2010, upon which time the Court’s preliminary ruling shall be entered as a formal order of the Court, unless the State enters notice of appear prior to that date.
Rendered in open court on __________ , 20_____, and executed on _______________________, 20____.
_______________________________
The Honorable ____________.
District Court Judge Presiding
________ County, North Carolina
Rich Costanza/Attorney for Defendant