### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE April 19, 2000 Session

STATE OF TENNESSEE v. JOE W. STE WARD

Appeal from the Circuit Court for Lewis County No. 6004 Cornelia A. Clark, Judge

No. M2001-2431-CCA-RM-CD - F iled January 18, 2002

The defendant, Joe W. Steward, was convictedof driving under the influence, second of fense, and possession of a

weapon with intent to go armed. The tria l court de nied his challeng e to the pr opriety of a roadblock. This court affirmed. See Sta te v . Jo e Stewa rd , No. M1999 -01284-C CA-R3-CD (Tenn. Crim. App. , at Nash ville, Aug . 18, 2000) ; see also Tenn. R. App. P. 11. Our supreme court granted an application for permission to appeal and, after filing its opinion in State v. Hicks , 55 S.W.3d 5 15 (Tenn. 2001), remanded the case to this court for r econsideration. By

the guidelines establishedin Hicks , it is appa rent tha t the rec ord is insufficient to e stablish a compelling state interest to justify the road block. Th

e judgme nts of the trial court are, therefore, re versed and the indictments are dismissed.

Tenn. R. App. P. 3; Judgments of the Trial Court Reversed; Cause Dismissed

G ARY R. W ADE , P.J., delivered the opinion of the court, in which J ERRY L. S MITH and J OHN E VERE TT W IL LI AMS , JJ., joined.

Gary M. How ell, Columbia, Tennessee, for the appellant, Joe W. Steward.

Paul G. Summers, Attorney Gene ral & Reporter; Marvin E. Clements, Jr., Assistant Attorne y Genera l; and Jeffrey L . Long, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

On the even

ing of A ugust 18 , 1998, Ser

geant B ill Ray an d Trooper Michael McAllister conducted

a traff ic enfor cement r oadblock on U. S. 412

East in Lew is County . At appr

oximately 8:00 P.M., Trooper McAllister attempted to stop the

defenda nt, who was driving his vehicle in the direction of the ro adblock. Accord ing to Tr ooper Mc Allister, the defe ndant initially slow ed his vehicle, but then accelerated past the troop er before fi na ll y st op pi ng in th e c en te r o f t he ro ad wa y. The trooper detected the odor of alcoh ol emana tin g from the defendant. Upon questioning, the defendant acknowledged that he had consumed f ive beers. He had

a cooler which contained nine-2-

more beers in

the back seat of the vehicle. Trooper McAllister also found a .357 caliber pistol in the front seat. After administering field sobriety tests, Trooper

McAllister placed the defendant under

arre st. Because the troopers did not have DUI testing equipment at the scene, the defenda nt wa s transportedto an ambulatory ca re center wh ere blood was drawn for chemical testing . After the defend ant's arrest, the troopers terminated the roadblock. The estimated duration of the roadblock was from 7:44 P.M. to 8:00 P.M., a total of 16 minutes.

Sergeant Ray established the loca

tion, the timing, a n d the procedures of the roadblock. There

was no written plan. He confirmed that he had no port ab le DUI equipment at the sce ne. The troopers intended to stop every vehicle that was driven through the roadblock, if possible; however, several cars were able to pa ss through without being stopped during times that both troopers were occupied with motorists that had stopped their vehicles.

Trooper McAllister testified that the purpose of the r oadblock was traffic enforce ment, which includedchecking for dr

iver'slicense s, vehic le reg istr ations, and child restraint violations. The troopers were not checking for equipmen

t violation s on agr

icultura l or comme

rcial ve hicles because they did not have the means to do so. Trooper McAllister claimed authority for the roadblock under General Order 410 of theDepartment of Safety , which requires the presence of a t least two officers in marked patrol cars. The order also re quires the approval of a lieutenant or a serg ea nt and the activation of the equipment on the patrol cars. I t was Trooper

McAllister's testimony that the or der required no pre-approved plan for a traff ic enforcement roadblock. He st ated that after the completion of such a roadblock, an activity form must be completed by the super visor and signed by the district captain. Trooper McAllister testified that he had followed the establishedprocedure andthat Sergeant Ray , Lieutenant Dempsey Holder
, and Captain W.C. Thompson had executed the requisite follow-up documentation.

Trooper McAllister acknowledged that a differ ent procedure was manda ted for a sobriety roadblock. He testified that this process, governed by General Order 410-1, must be pre-approved bya colonel five day s prior to the roadblock. A minimum of six officers must be invo lved. Th e
news media must be notified in advance as to the location and length of the roadblock. According to Trooper

McAlliste

r, the pr ocedure require s "no les s than thr ee day s' prior

noti ce for a sobrie

ty checkpoint."

The defenda

nt m oved to suppress the evidence collected as a r esult of his stop at the roadblock, arguing that the roadblock fa iled to comply with the requireme nts of e ithe r State v. Downey
, 945 S.W.2d 102 (Ten n. 1997), or THP Ge

neral Or der 410- 1 rega

rding so briety checkp oints. The trial court found that although the r oadblock failed to comply with Downey
, Downey "was not applicable because the roadblock was a traffic enforc ement roadblock rather than

a sobriety roadblock ." The trial court denied themotion to suppress because the roadblock complied withthe provisions of THP General Order 410, noting that in Downey , our high court had observed that it was "not address[ing] the specific provisions of General Order 410 . . . [or] consider[ing] any provision of la

w tha t may auth orize

Tenne ssee Highway

Patrol Officers to make stops for the purpose of ch ecking drivers ' licenses." Downey , 945 S.W.2d at 105 n.3.-3-

Relying on State v. David Arthur McCarter , No. 03C01-9406-CR-00240 (Tenn. Crim. App., at Knoxville, Mar. 13, 1995), and Stat e v. Dav id Lynn Hagy , No . 03C01-950 5-CR-00152 (Tenn. Crim. App. , at K noxville, Dec. 5, 1995), this court approved the trial court's finding that the roadblock complied with General Order 410 and affir med the convictions. Steward , No. M1999- 01284-CCA-R3-CD, slip op. at 4-5. Some months after our decision, our high court dete

rmined in Statev. Hicks that the requ irements of State v. Downey are applicable in all cases involving challenges to roadblocks under the Tenne ssee Constitution. Hicks , 55 S.W.3d at 524.

Both the state and federal constitutions protect individuals from unreasonable searches a nd seizures. U.S . C ons t. ame nd. IV; T enn . C ons t. art . I, § 7. Any police activity which involves a stop of an automobile qualifies as a seizure under both the state and federal constitutions. Delaware v. Prowse
, 440 U.S. 64 8 (1979); State v. Westbrooks , 594 S.W.2d 741 (Tenn. 1979). An investigatory stop, therefore, must be based upon an articulable a nd reasonable suspicion of criminal act ivit y. See Terry v. Ohio , 392 U.S. 1 (1968).

In Downey , our supr eme cou rt addressed the constitutionality of a sobriety roadblock a

t which officers stopped

motorists whose prior conduct was suspicionless. In doing so, the high court adoptedthe balancing test used by the United States Supreme Court to analy ze the con stitutiona

lity of a highway

sobriety chec

kpoint in Michiga

n v. Sitz : "[T]he re asonable ness of a seizure . . . less intrusive than a tr

aditiona l arrest dependson a bala

ncing o f 'the g

ravity of the pub lic concerns served by the seizure, the degree

to which the seizure advances the public interest, and the sever ity of the interference

withindividu al liberty.'" Downey , 945 S.W.2d at 107 (quot ing Michiga n v. Sitz , 496 U.S. 444 (1990)).

In Hicks , the defendant moved to suppress five pounds of marijuana that had been discovered by office rs conducting a dr

iver'slicense

roadbloc k on the g

rounds tha

t t h e stop wa s unreas onable under Article I, Se ction 7 of

the Tennesse e Constitution . The tria l court g ranted t he motion to suppressand th e stat e appea led th e ruli ng to t his co urt. T his co urt, h oldi ng t hat driver 's lice nse roadblocks are ge

nerally permissible under the Tennessee Constitution, reversed the trial court. A majority of our supreme court, however, concluded that the trial court ha d proper ly suppressed the evidence because the state had f ailed to es ta bl is h a su ff

ic ie nt ly c om pe ll in g i nt er es t t o j us ti fy a drive r's license roadblock and bec ause the

roadbloc k had failed to comply with Downey

. Hicks , 55 S.W.3d at 531 . In appl ying Downey , the majo rity "concl ude[d] that t

he prese nce of a sufficie ntly comp elling intere st is necessary unde r Article I, [S]ection 7 before an examination of the other aspectsof a roadblock may

proceed." Id. at 526 . Our h igh cou rt rul ed tha t in ca ses in volv ing dri ver's li ce ns e r oa db lo ck s, th e fol lo wi ng st an da rd s a pp ly:

[T ] he [s]tate must s how that d rivers n ot possess ing a lic ense ar e unable to safely operate mo tor ve hicles on the roads and highway s of this state; that an unlicensed driver invariably pre sents an imminent danger of de ath or se rious bodi ly in

jury to other dr iv er s t ha t i s n ot typ ic al ly pre sent with licensed drivers ; and that

the safe ty threat from unlic ensed dr

ivers is of such a magnitude that the problem, coupled with its risk o f harm , comm ands h eighte ned at tenti on. On ly when th is sh owing is mad e-4-

may courts find that the [s]tate has a suffi ciently compelling interest to justify maintaining drive

rs' lic ense roa

dblocks.

Id. at 527. Justic e Bark

er, writ ing for the major

ity, wrote asfollows:

In demonstr

ating th is suffic iently

compelling state

interest in . . . futu re case s, however, we emphasize that the [s]tate may not merely rely upon its g eneral

interest in maintainin g high way saf ety to justify

suspicionless seizures of its citizens, no matter how "minimal" one

ma y be abl e to characterize the intrusion. To the extent that the [s]tate' s ju stif

ication f or mainta ining a r oadblock does not r

eflect a real, compelling interest in curbing a substantial and imminent threat to the safety of motorists on public roads, one may be unable to

distingu ish this suppos ed inter

est in safety f rom a more g eneral interest in ordinary crime control. However, as the United States Supreme Court has made clear, and as we agree has long been the law in Tennessee, in no case may the [s]tate establish a roadblock merely " to detect evidence of ordinary

criminal wrongdoing."

. . . Instead, "[w]hen law enfor cement authorities pursue pr

imarily general crime control purposes a t checkpoints . . ., stops

can only be justified by

some quantum of individualized suspicion." . . . Therefore, unlike many

of our sis ter st ates, this [c]ourt will not presume the existence of a compelling interest until the [s]tate i ntroduces some proof of the need to curb a substantial and immine

nt threa t to the safe

ty of motoris ts on public

roads dis tinctly resulting from the c onduct of

unlicens ed drive

rs.

Moreover, we al so em ph as iz e t ha t t he [s ]t at e m ay n ot me re ly r el y u pon it s general interest in maintaining the integrity of its drivers' licensing scheme to justify future roadblocks. We see no indication from the record that the [s]ta

te's int erest in enforcing a driver s' lice

nse law isany

great er than its intere st inenforcing any other law, a nd indeed, the [s]tate's interest in enforcing other cr iminal laws is at lea st a s great as it is in enforcing laws regulating drivers' licenses. I

f the [s]tate may

n ot legitima tely establish roadblocks to detec t other vio lations, it follows th at the [s]tat

e may not do so merely to enfor ce drivers' license laws. Ther efore, to justify suspicion less stops in this context, the [s]tate must necessarily rely upon the need to curb a substantial and i mminent th reat to the safety

of motorists on public roads distinctly resulting from the c onduct of

unlicens ed drive

rs.

Id. at 529-30 (citations omitted).

In our view, our supreme court's decision in State v. Hicks require s t hat the e vidence challenged

by the defe

ndant in this case be suppressed. The trial court correctly found that the roadbl ockat issue did not comply with State v. Downey . Understandably , the state made no real effort to prove a sufficiently

compelling interest to justify the roadbloc k. While the

state now argues that it has a "vital interest in ensuring that only those qualified to d o so are pe rmitted to operate motor vehicle s [and] that t

h ese vehicles are fit for safe opera tion," it failed to provide evidence at-5-

the suppression hearing that unlicensed drivers ar e unsafe, that they

present an increased danger of imminentdeath or

serious bodily injury , or

that they pose a thre at that requires heightened attention. The record is also devoid of any evidence regarding

the dangers posed by

unregistered vehicles and improper ly restrained children, the remaining two justifications offered for the r oadblock by Troope

r McAllister. Although child safe ty thro ugh proper restraint is a legitimate state inter est, this court may not assume that it is sufficiently co mpellin g to justify the roa dblock. As our supreme court cautionedin Hicks , "beca use the [s]ta

te has the burden o f est ablis hing t he reasonableness of the seizure, one may not merely presume that [an] interest[] [is] sufficiently compelling to justify abrogating constitutional guara ntees. Only when the

[s]tate makes the required showing, as it has previous ly

done with

sobriety checkpoints, may c ourts accept the presenc e of the c ompelling interest and proceed to further analy ze the roadblock under this decision and Downey ." Id. at 527-28.

Ac co rd in gl y, the judgments of the trial court are reversed and the indictments are dismissed.

___________________________________ GARY R. WADE, PRESIDING JUDGE