Heard in the Court of Appeals December 3, 2014.
This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]
Roy Cooper, Attorney General, by Joseph L. Hyde, Assistant Attorney General, for the State.
Staples Hughes, Appellate Defender, by Jon H. Hunt, Assistant Appellate Defender, for defendant-appellant.
DAVIS, Judge. Judges CALABRIA and ELMORE concur.
Appeal by defendant by writ of certiorari from order
entered 14 July 2011 by Judge Hugh B. Lewis in Mecklenburg County Superior Court
Nos. 10 CRS 211197-99.
Derrick Lee McDonald (" Defendant" ) appeals by writ of certiorari from his convictions of possession with intent to sell or deliver cocaine and possession of marijuana. On appeal, he contends that the trial court erred by denying his motion to suppress. After careful review, we vacate the trial court's order and remand for further proceedings consistent with this opinion.
On 11 March 2010, Detective Brett Riggs (" Detective Riggs" ) with the Charlotte-Mecklenburg Police Department (" CMPD" ) prepared a written operational plan for a checkpoint (" the Checkpoint" ) at the intersection of Ashley Road and Joy Street in Charlotte, North Carolina. The Checkpoint was conducted that night from 12:34 a.m. to 1:52 a.m. Every vehicle driving through the Checkpoint was stopped, and the officers asked the driver of each vehicle for his or her driver's license.
During the course of the Checkpoint's implementation, a vehicle in which Defendant was riding in the front passenger seat was stopped. The only other occupant of the vehicle was the driver. When several of the officers approached the vehicle, they detected a strong odor of marijuana emanating therefrom. Defendant opened the front passenger door and exited the vehicle. As he did so, a bag containing 41.4 grams of marijuana, two baggies containing 2.7 grams of powder cocaine, a digital scale, cell phones, and a set of keys all fell out of the vehicle. Defendant was placed under arrest.
On 6 July 2010, Defendant was indicted for (1) possession of a Schedule VI controlled substance; (2) possession with intent to sell or deliver a controlled substance; and (3) possession of drug paraphernalia. On 26 October 2010, Defendant filed in Mecklenburg County Superior Court a motion to suppress all evidence obtained as a result of the traffic stop based on his assertion that the Checkpoint was unconstitutional.
A hearing on Defendant's motion to suppress was heard on 13 July 2011 by Judge Hugh B. Lewis. At the hearing, Detective Riggs testified, in pertinent part, as follows:
Q. What was the purpose of the license checkpoint?
A. As a driver safety checkpoint, checking for valid driver's license, registration, proper registration on the vehicles coming through the checkpoint.
Q. And was there a proper plan for this checkpoint?
A. Yes, sir. I typed up an operational plan essentially stating that every car that approached the checkpoint would be stopped, the driver would be asked to produce their driver's license.
I had a provision in the ops plan that stated that if a hazard -- or if it became a hazard to conduct the check due to weather, circumstances, that it would be cancelled. Additionally if traffic became backed up we would allow all cars to move through until the traffic lightened and then we'd begin checking every car.
During the hearing, the State introduced into evidence the written plan for the Checkpoint prepared by Detective Riggs. The written plan stated that the purpose of the Checkpoint was " [t]o increase police presence in the targeted area while checking for Operators License and Vehicle Registration violations." The plan also detailed the pattern to which the officers would adhere in conducting the Checkpoint:
Predetermined Pattern: All vehicles coming through the check point shall be stopped unless the Officer in charge determines that a hazard has developed or that an unreasonable delay to motorist [sic] is occurring. At that point all vehicles will be allowed to pass through until the hazard or delay is cleared.
On 14 July 2011, the trial court entered a written order denying Defendant's motion to suppress. Defendant subsequently entered a plea of guilty. The trial transcript did not reflect that Defendant intended to appeal the denial of his motion prior to entering his guilty plea, and no notice of his intention to appeal the motion was contained in the transcript of plea. Defendant was sentenced to 6-8 months imprisonment. The sentence was suspended, and Defendant was placed on 24 months supervised probation.
Defendant then attempted to appeal the order denying his motion to suppress. The State filed a motion to dismiss the appeal on the ground that Defendant had failed to properly preserve his right to appeal the order. In an unpublished opinion filed on 17 July 2012, we dismissed Defendant's appeal without prejudice to his right to seek an evidentiary hearing in superior court for a determination of whether his guilty plea did, in fact, reserve his right to appeal the denial of his motion to suppress. State v. McDonald, 221 N.C.App. 670, 729 S.E.2d 128 (2012) (unpublished).
Defendant subsequently filed a motion for appropriate relief, which was heard by the trial court on 1 February 2013. On that same date, the trial court ordered that Defendant's plea transcript be amended to reflect Defendant's intent to appeal the denial of his motion to suppress. Defendant filed a petition for writ of certiorari on 23 December 2013, which this Court granted by order entered 7 January 2014.
Defendant's sole argument on appeal is that the trial court erred in denying his motion to suppress. Specifically, Defendant asserts that the trial court failed to determine (1) the Checkpoint's primary ...