NO. COA13-494

NORTH CAROLINA COURT OF APPEALS

Filed: 4 February 2014

STATE OF NORTH CAROLINA

v. Anson County

No. 09 CRS 1939

GARRY WHITE

Appeal by the State from order entered 16 January 2013 by 

Judge Tanya T. Wallace in Anson County Superior Court. Heard in 

the Court of Appeals 23 October 2013.

Attorney General Roy Cooper, by Assistant Attorney General 

Carrie D. Randa, for the State-appellant.

Appellate Defender Staples S. Hughes, by Assistant Appellate 

Defender Andrew DeSimone, for defendant-appellee.

McCULLOUGH, Judge.

The State appeals from an order granting defendant’s motion 

to suppress evidence obtained during a checkpoint stop. For the 

reasons set forth below, we affirm.

I. Background

On 11 September 2009, defendant Garry Anthony White was 

arrested and charged with one count of driving while impaired in 
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violation of N.C. Gen. Stat. § 20-138.1 and one count of driving 

while license revoked in violation of N.C. Gen. Stat. § 20-28.

On 17 October 2011, defendant was convicted in Anson County 

District Court of driving while impaired and given a six (6) month 

active sentence. Defendant was also convicted of driving while 

license revoked and given an active sentence of forty-five (45) 

days. Defendant appealed the judgments to Anson County Superior 

Court.

On 12 April 2010, defendant filed a motion to suppress 

evidence alleging the following:

1. That on or about September 11, 2009, a blue 

GMC Sonoma was stopped at a checkpoint on 

High Street in Polkton, North Carolina, by 

officers with the Anson County Sheriff’s 

Department.

2. There was no reasonable articulable 

suspicion to stop the afore-mentioned 

vehicle. The stop of the afore-mentioned 

vehicle was made without probable cause and 

was an unreasonable seizure in violation of 

the Constitution of the United States of 

America and the North Carolina 

Constitution.

3. The stop was in contravention of the 

statutory policy on checking stations and 

roadblocks set out in G.S. 20-16.3(A).

A hearing on defendant’s motion to suppress was held on 10 

September 2012. J.R. Horne (“Horne”) testified that on 11 

September 2009, he was serving as a traffic supervisor for the 
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Anson County Sheriff’s Office and was asked to operate a checking 

station in Polkton, North Carolina. Horne testified that at that 

time, the Anson County Sheriff’s Department did not have a written 

policy regarding checking stations, but instead, had an oral 

policy.1

The checking station was designated to be a license checking 

station located at High Street and College Street in Polkton. 

Sometime before the checkpoint commenced, Horne wrote a “Traffic 

Operational Plan” that provided the following: the checkpoint was 

to begin at 7:55 p.m. on 11 September 2009; Deputy Jenkins and 

Detective Erdmanczyk would assist Horne in the license checkpoint;

all cars coming through the target area would be checked; officers 

would wear their traffic vests when out of their cars; and that 

the “Chase Policy” would be in full effect. Horne testified that

although he was under the assumption that the checkpoint would 

conclude around midnight since the stores in Polkton closed around 

11:00 p.m., there was no end time indicated in the “Traffic 

Operational Plan.”

Following a briefing held at 7:30 p.m. on 11 September 2009, 

the checkpoint began at 7:55 p.m. All three officers – Horne, 

Jenkins, and Erdmanczyk – were present with safety vests on. The 

 

1The Anson County Sheriff’s Department did not have a written 

policy concerning checking stations until 17 February 2012.
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officers were checking both northbound and southbound traffic 

coming to the checkpoint on High Street, as well as westbound 

traffic coming from College Street. During the license checkpoint, 

all three of the officers’ vehicles had their blue lights 

activated. All vehicles coming through the checking station were 

stopped.

Horne testified that at 8:01 p.m., an individual was arrested 

and charged with driving while impaired. At 8:24 p.m., Horne left 

the checking station, accompanied by Officer Jenkins, and 

transported the arrested individual to the Sheriff’s Office. 

Officer Erdmanczyk stayed at the checking station but did not check 

any vehicles until Horne and Jenkins returned at 9:57 p.m. From

approximately 8:24 p.m. until 9:57 p.m., no vehicles were checked

at the checkpoint. At 9:57 p.m., the checkpoint resumed. At 10:56 

p.m., defendant was stopped and arrested and the checkpoint 

concluded around 11:20 p.m.

On 16 January 2013, the trial court entered an order finding 

the following in pertinent part:

1. The day before the actual driver’s license 

check point, Corporal Horne was contacted 

by Captain Dunn of the Sheriff’s 

Department who requested him to operate as 

a supervisory officer over a checkpoint.

. . .
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3. On September 11, 2009, the Anson County 

Sheriff’s Department had no written policy 

providing guidelines for motor vehicle law 

checking stations as mandated by G.S. 20-

16.3A.

. . .

5. Corporal Horne did complete a written 

checking station plan prior to conducting 

the checkpoint on September 11, 2009. The 

plan provided for a license check after a 

briefing at the Polkton Fire Department to 

commence at 7:55 p.m. at the intersection 

of High Street and College Street which 

called for the officers to wear traffic 

vests, to stop all vehicles coming through 

the checkpoint, to have at least one 

vehicle with its blue lights activated, 

and to operate said checkpoint pursuant to 

an oral policy that was in force at that 

time.

6. Corporal Horne testified that the reason 

for the checkpoint was because there had 

been complaints by the store owners of 

speeding and reckless operation of motor 

vehicles in this area and that this check 

point was to start at 7:55 p.m. with an 

anticipated conclusion time of 12:00 a.m., 

since the stores in the area close at 

approximately 11:00 p.m.

7. Three (3) officers were assigned to this 

checkpoint including the traffic unit 

supervisor Corporal Horne . . . and 

Corporal Horne testified that all officers 

were to wear traffic vests, the blue 

lights on each vehicle were to be 

activated, that all vehicles were to be 

stopped coming through this intersection 

and that the chase policy was to be in 

force at this checkpoint.

. . .
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9. The Defendant was stopped at approximately 

10:56 p.m.

10. Prior to the Defendant being stopped,

after the checkpoint was established, at 

8:24 p.m., a vehicle was stopped which 

resulted in the arrest of a driver by the 

name of Ab Griffin for DWI and Corporal 

Horne testified that between 8:24 p.m. and 

9:57 p.m. he and Deputy Jenkins left the 

checkpoint to process the arrest but left 

Detective Erdmanczyk at the scene until 

they returned, however, Detective 

Erdmanczyk did not continue with the 

checkpoint or stop any vehicles.

11. At approximately 9:57 p.m. officers Horne 

and Jenkins returned to the scene of the 

checkpoint and the checkpoint continued 

and the officers followed the same 

procedures in operating the checkpoint as 

were used prior to the suspension at 8:24 

p.m.

. . .

13. The Court is unsure of whether or not there 

was a suspension of the original 

checkpoint for a period of almost an hour 

and a half or whether this is a new stop 

at 10:56 a.m. with no guidelines or plan 

in place.

The trial court concluded that 

the nature of the stop of the Defendant which 

occurred after the checkpoint had been 

abandoned for a period of approximately an 

hour and a half was in the nature of a 

spontaneous stop. Coupled with the lack of a 

written policy in full force and effect and 

taking into consideration whether a plan was 

reinstituted, or a new plan instituted, upon 

the return of the officers to the checkpoint 
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at 9:27 p.m. mandates a conclusion that there 

was a substantial violation of G.S. 20-16.3A 

and the Court hereby orders that all evidence 

obtained as a result of the stop of the 

Defendant’s vehicle is suppressed.

From this order, the State appeals.

II. Standard of Review

“Generally, an appellate court’s review of a trial court’s 

order on a motion to suppress is strictly limited to a 

determination of whether its findings are supported by competent 

evidence, and in turn, whether the findings support the trial 

court’s ultimate conclusion.” State v. Roberson, 163 N.C. App. 

129, 132, 592 S.E.2d 733, 735 (2004) (citation and quotation marks 

omitted). “Where no exception is taken to a finding of fact by 

the trial court, the finding is presumed to be supported by 

competent evidence and is binding on appeal.” State v. Taylor, 

178 N.C. App. 395, 401, 632 S.E.2d 218, 223 (2006) (citation 

omitted).

“While the trial court’s factual findings are binding if 

sustained by the evidence, the court’s conclusions based thereon 

are reviewable de novo on appeal.” State v. Parker, 137 N.C. App. 

590, 594, 530 S.E.2d 297, 300 (2000) (citation omitted).

III. Discussion

The State argues that the trial court erred in granting 

defendant’s motion to suppress where: (A) finding of fact 13 is 
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not supported by the evidence; (B) there was no substantial 

violation of N.C. Gen. Stat. § 20-16.3A; and (C) no constitutional 

violation or violation of Chapter 15A of the North Carolina General 

Statutes was found. Because arguments (A) and (B) are closely 

related, we will address them together.

A. Finding of Fact Number 13 

and

B. N.C. Gen. Stat. § 20-16.3A

First, the State argues that finding of fact number 13 is not 

supported by the evidence and thus, does not support the trial 

court’s conclusion of law number 5.

The trial court noted in finding of fact number 13 that:

13. The Court is unsure of whether or not there 

was a suspension of the original 

checkpoint for a period of almost an hour 

and a half or whether this is a new stop 

at 10:56 a.m. with no guidelines or plan 

in place.

It also concluded in conclusion of law number 5 that:

5. That the nature of the stop of the 

Defendant which occurred after the 

checkpoint had been abandoned for a period 

of approximately an hour and a half was in 

the nature of a spontaneous stop. Coupled 

with the lack of a written policy in full 

force and effect and taking into 

consideration whether a plan was 

reinstituted, or a new plan instituted, 

upon the return of the officers to the 

checkpoint at 9:27 p.m. mandates a 

conclusion that there was a substantial 

violation of G.S. 20-16.3A and the Court 
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hereby orders that all evidence obtained 

as a result of the stop of the Defendant’s 

vehicle is suppressed.

We note that during defendant’s motion to suppress hearing, 

there was ample testimony concerning the suspension of the 

checkpoint for an hour and half, from 8:24 p.m. until 9:57 p.m.

Horne testified that at 8:01 p.m., an individual was arrested and 

charged with driving while impaired. Horne and Jenkins left the 

checkpoint from 8:24 p.m. until 9:57 p.m. in order to transport 

this individual to the Sheriff’s Office. Horne made a decision 

that during the time period that he and Jenkins were absent from 

the checkpoint, “the checkpoint would stop[.]” Erdmanczyk 

remained at the checkpoint, but did not check any vehicles or 

licenses during this time at the direction of Horne. The following 

exchange occurred at defendant’s hearing:

[Defense Counsel:] We have a checking station 

that was basically – not due to your fault but 

the fault of, I guess, the driver who 

allegedly offended the law – that was 

abandoned by you for almost an hour and a half, 

where vehicles were free to come and go 

without being checked; is that correct?

[Horne:] Yes, sir.

In addition, evidence established that defendant was stopped at 

the checkpoint at 10:56 p.m. Based on the foregoing, we hold that 

there was sufficient competent evidence to support the trial 

court’s finding of fact 13 and overrule the State’s argument.
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Even assuming arguendo that finding of fact 13 was not 

supported by the evidence, the State’s argument that the trial 

court erred by making conclusion of law number 5 is without merit. 

The remaining unchallenged findings of fact, which are binding on 

appeal, support the trial court’s ultimate conclusion that there 

was a substantial violation of section 20-16.3A of the North 

Carolina General Statutes.

We call attention to unchallenged finding of fact 3, which 

provides the following:

On September 11, 2009, the Anson County 

Sheriff’s Department had no written policy 

providing guidelines for motor vehicle law 

checking stations as mandated by G.S. 20-

16.3A.

“When findings that are unchallenged, or are supported by 

competent evidence, are sufficient to support the judgment, the 

judgment will not be disturbed because another finding, which does 

not affect the conclusion, is not supported by evidence.” Dawson 

Industries, Inc. v. Godley Constr. Co., 29 N.C. App. 270, 275, 224 

S.E.2d 266, 269 (1976) (citation omitted).

Section 20-16.3A of the North Carolina General Statutes, 

which sets forth the requirements for checking stations and 

roadblocks, provides that:

(a) A law-enforcement agency may conduct 

checking stations to determine 

compliance with the provisions of this 
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Chapter. If the agency is conducting a 

checking station for the purposes of 

determining compliance with this 

Chapter, it must:

. . . 

(2a) Operate under a written policy that 

provides guidelines for the 

pattern, which need not be in 

writing. The policy may be either 

the agency’s own policy, or if the 

agency does not have a written 

policy, it may be the policy of 

another law enforcement agency, and 

may include contingency provisions 

for altering either pattern if 

actual traffic conditions are 

different from those anticipated, 

but no individual officer may be 

given discretion as to which vehicle 

is stopped or, of the vehicles 

stopped, which driver is requested 

to produce drivers license, 

registration, or insurance 

information. If officers of a law 

enforcement agency are operating 

under another agency’s policy, it 

must be stated in writing.

N.C.G.S. § 20-16.3A(a)(2a) (2013) (emphasis added).

It is well established that 

[t]he paramount objective of statutory 

interpretation is to give effect to the intent 

of the legislature. The primary indicator of 

legislative intent is statutory language; the 

judiciary must give clear and unambiguous 

language its plain and definite meaning. 

Where the language of a statute is clear and 

unambiguous there is no room for judicial 

construction and the courts must give it its 

plain and definite meaning[.]
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State v. Largent, 197 N.C. App. 614, 617, 677 S.E.2d 514, 517 

(2009) (citations and quotation marks omitted).

We observe that the language used in N.C.G.S. § 20-

16.3A(a)(2a) is mandatory – “If the agency is conducting a checking 

station . . ., it must [o]perate under a written policy[.]”

(emphasis added). See State v. Inman, 174 N.C. App. 567, 570, 621 

S.E.2d 306, 309 (2005) (noting that the word “must” in a statute 

is ordinarily “deemed to indicate a legislative intent to make the 

provision of the statute mandatory, and a failure to observe it 

fatal to the validity of the purported action”).

In light of the mandatory language contained within N.C.G.S. 

§ 20-16.3A, we conclude that the trial court did not err by 

concluding that a lack of a written policy in full force and effect 

at the time of defendant’s stop at the checkpoint constituted a 

substantial violation of section 20-16.3A. 

C. Constitutional Violation or Violation of Chapter 15A

Next, the State argues that “evidence must only be suppressed 

if there is a Constitutional violation or a substantial violation 

of the provisions of Chapter 15A. . . . Provisions outside of 

chapter 15A do not require suppression.” The State asserts that 

even assuming arguendo that a violation of N.C. Gen. Stat. § 20-
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16.3A occurred2, the trial court should not have suppressed the 

evidence obtained at defendant’s stop, and doing so amounted to 

error. We disagree.

The State relies on section 15A-974 of the North Carolina 

General Statutes, titled “Exclusion or suppression of unlawfully 

obtained evidence,” for its contention. N.C. Gen. Stat. § 15A974 states that evidence must be suppressed if “(1) Its exclusion 

is required by the Constitution of the United States or the 

Constitution of the State of North Carolina; or (2) It is obtained 

as a result of a substantial violation of the provisions of 

[Chapter 15A (Criminal Procedure Act).]” N.C.G.S. § 15A-974(a)(1) 

– (2) (2013).

In response to the State’s arguments, defendant directs our 

attention to subsection (d) of N.C.G.S. § 20-16.3A. In subsection 

(d), the General Assembly provided that “[t]he placement of 

checkpoints should be random or statistically indicated, and 

agencies shall avoid placing checkpoints repeatedly in the same 

location or proximity.” N.C.G.S. § 20-16.3A(d) (2013). Notably, 

the General Assembly further provided that “[t]his subsection 

 

2Here, the trial court did not reach the question of the 

constitutionality of the checkpoint and instead, rested its 

analysis on the State’s violation of section 20-16.3A of the North 

Carolina General Statues as previously discussed.
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shall not be grounds for a motion to suppress or a defense to any 

offense arising out of the operation of a checking station.” Id.

(emphasis added).

A “well-known canon of statutory construction [is] expressio 

unius est exclusio alterius: the expression of one thing is the 

exclusion of another.” State v. Dewalt, 209 N.C. App. 187, 191-

92, 703 S.E.2d 872, 875 (2011) (citation omitted). Applying this 

principle to the case at hand, we hold that because the General 

Assembly specifically included language in subsection (d) that it 

shall not be a basis for a motion to suppress, meanwhile excluding 

the same language in subsection (a)(2a), subsection (a)(2a) is a 

proper basis for a motion to suppress.

Furthermore, our Court has held that a violation of another 

section of Chapter 20 is an appropriate basis for a motion to 

suppress, despite the lack of express statutory language 

authorizing suppression. For example, in State v. Buckheit, __ 

N.C. App. __, __, 735 S.E.2d 345, 347 (2012), our Court reversed 

a trial court’s denial of the defendant’s motion to suppress 

evidence obtained in the violation of section 20-16.2(a) of the 

North Carolina General Statutes. See also State v. Hatley, 190 

N.C. App. 639, 661 S.E.2d 43 (2008) (holding that because the State 

violated N.C. Gen. Stat. § 20-16.2(a), the trial court should have 
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granted the defendant’s motion to suppress evidence obtained from 

that violation).

Based on the foregoing analysis, we hold that the trial court 

did not err by granting defendant’s motion to suppress and affirm 

the order of the trial court.

Affirmed.

Judges DAVIS and ELMORE concur.