IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

April 19, 2000 Session

STATE OF TENNESSEE v. JOE W. STEWARD

Appeal from the Circuit Court for Lewis County

No. 6004 Cornelia A. Clark, Judge

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

The defendant, Joe W. Steward, was convicted of driving under the influence, second offense, and

possession of a weapon with intent to go armed. The trial court denied his challenge to the propriety

of a roadblock. This court affirmed. See State v. Joe Steward, No. M1999-01284-CCA-R3-CD

(Tenn. Crim. App., at Nashville, 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 515 (Tenn. 2001), remanded the case to this court for reconsideration. By the guidelines

established in Hicks, it is apparent that the record is insufficient to establish a compelling state

interest to justify the roadblock. The judgments of the trial court are, therefore, reversed and the

indictments are dismissed.

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

GARY R. WADE, P.J., delivered the opinion of the court, in which JERRY L. SMITH and JOHN

EVERETT WILLIAMS, JJ., joined.

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

Paul G. Summers, Attorney General & Reporter; Marvin E. Clements, Jr., Assistant Attorney

General; and Jeffrey L. Long, Assistant District Attorney General, for the appellee, State of

Tennessee.

OPINION

On the evening of August 18, 1998, Sergeant Bill Ray and Trooper Michael McAllister

conducted a traffic enforcement roadblock on U. S. 412 East in Lewis County. At approximately

8:00 P.M., Trooper McAllister attempted to stop the defendant, who was driving his vehicle in the

direction of the roadblock. According to Trooper McAllister, the defendant initially slowed his

vehicle, but then accelerated past the trooper before finally stopping in the center of the roadway.

The trooper detected the odor of alcohol emanating from the defendant. Upon questioning, the

defendant acknowledged that he had consumed five beers. He had a cooler which contained nine
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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

arrest. Because the troopers did not have DUI testing equipment at the scene, the defendant was

transported to an ambulatory care center where blood was drawn for chemical testing. After the

defendant'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 location, the timing, and the procedures of the roadblock. There

was no written plan. He confirmed that he had no portable DUI equipment at the scene. The

troopers intended to stop every vehicle that was driven through the roadblock, if possible; however,

several cars were able to pass through without being stopped during times that both troopers were

occupied with motorists that had stopped their vehicles. 

Trooper McAllister testified that the purposeofthe roadblock was traffic enforcement, which

included checking for driver's licenses, vehicle registrations, and child restraint violations. The

troopers were not checking for equipment violations on agricultural or commercial vehicles because

they did not have the means to do so. Trooper McAllister claimed authority for the roadblock under

General Order 410 of the Department of Safety, which requires the presence of at least two officers

in marked patrol cars. The order also requires the approval of a lieutenant or a sergeant and the

activation of the equipment on the patrol cars. It was Trooper McAllister's testimony that the order

required no pre-approved plan for a traffic enforcement roadblock. He stated that after the

completion of such a roadblock, an activity form must be completed by the supervisor and signed

by the district captain. Trooper McAllister testified that he had followed the established procedure

and that Sergeant Ray, Lieutenant Dempsey Holder, and Captain W.C. Thompson had executed the

requisite follow-up documentation. 

Trooper McAllister acknowledged that a different procedure was mandated for a sobriety

roadblock. He testified that this process, governed by General Order 410-1, must be pre-approved

by a colonel five days prior to the roadblock. A minimum of six officers must be involved. The

news media must be notified in advance as to the location and length of the roadblock. According

to Trooper McAllister, the procedure requires "no less than three days' prior notice for a sobriety

checkpoint."

The defendant moved to suppress the evidence collected as a result of his stop at the

roadblock, arguing that the roadblock failed to comply with the requirements of either State v.

Downey, 945 S.W.2d 102 (Tenn. 1997), or THP General Order 410-1 regarding sobriety

checkpoints. The trial court found that although the roadblock failed to comply with Downey,

Downey "was not applicable because the roadblock was a traffic enforcement roadblock rather than

a sobriety roadblock." The trial court denied the motion to suppress because the roadblock complied

with the 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 law that may authorize Tennessee Highway Patrol Officers to make stops for the

purpose of checking drivers' licenses." Downey, 945 S.W.2d at 105 n.3.
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Relying on State v. David Arthur McCarter, No. 03C01-9406-CR-00240 (Tenn. Crim. App.,

at Knoxville, Mar. 13, 1995), and State v. David Lynn Hagy, No. 03C01-9505-CR-00152 (Tenn.

Crim. App., at Knoxville, Dec. 5, 1995), this court approved the trial court's finding that the

roadblock complied with General Order 410 and affirmed the convictions. Steward, No. M1999-

01284-CCA-R3-CD, slip op. at 4-5. Some months after our decision, our high court determined in

State v. Hicks that the requirements of State v. Downey are applicable in all cases involving

challenges to roadblocks under the Tennessee Constitution. Hicks, 55 S.W.3d at 524.

Both the state and federal constitutions protect individuals from unreasonable searches and

seizures. U.S. Const. amend. IV; Tenn. Const. 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. 648 (1979); State v. Westbrooks, 594 S.W.2d 741 (Tenn. 1979). An investigatory

stop, therefore, must be based upon an articulable and reasonable suspicion of criminal activity.

See Terry v. Ohio, 392 U.S. 1 (1968). 

In Downey, our supreme court addressed the constitutionality of a sobriety roadblock at

which officers stopped motorists whose prior conduct was suspicionless. In doing so, the high court

adopted the balancing test used by the United States Supreme Court to analyze the constitutionality

of a highway sobriety checkpoint in Michigan v. Sitz: "[T]he reasonableness of a seizure . . . less

intrusive than a traditional arrest depends on a balancing of 'the gravity of the public concerns served

by the seizure, the degree to which the seizure advances the public interest, and the severity of the

interference with individual liberty.'" Downey, 945 S.W.2d at 107 (quoting Michigan v. Sitz, 496

U.S. 444 (1990)).

In Hicks, the defendant moved to suppress five pounds of marijuana that had been discovered

by officers conducting a driver's license roadblock on the grounds that the stop was unreasonable

under Article I, Section 7 of the Tennessee Constitution. The trial court granted the motion to

suppress and the state appealed the ruling to this court. This court, holding that driver's license

roadblocks are generally permissible under the Tennessee Constitution, reversed the trial court. A

majority of our supreme court, however, concluded that the trial court had properly suppressed the

evidence because the state had failed to establish a sufficiently compelling interest to justify a

driver's license roadblock and because the roadblock had failed to comply with Downey. Hicks, 55

S.W.3d at 531. In applying Downey, the majority "conclude[d] that the presence of a sufficiently

compelling interest is necessary under Article I, [S]ection 7 before an examination of the other

aspects of a roadblock may proceed." Id. at 526. Our high court ruled that in cases involving driver's

license roadblocks, the following standards apply:

[T]he [s]tate must show that drivers not possessing a license are unable to safely

operate motor vehicles on the roads and highways of this state; that an unlicensed

driver invariably presents an imminent danger of death or serious bodily injury to

other drivers that is not typically present with licensed drivers; and that the safety

threat from unlicensed drivers is of such a magnitude that the problem, coupled with

its risk of harm, commands heightened attention. Only when this showing is made
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may courts find that the [s]tate has a sufficiently compelling interest to justify

maintaining drivers' license roadblocks.

Id. at 527. Justice Barker, writing for the majority, wrote as follows:

In demonstrating this sufficiently compelling state interest in . . . future cases,

however, we emphasize that the [s]tate may not merely rely upon its general interest

in maintaining highway safety to justify suspicionless seizures of its citizens, no

matter how "minimal" one may be able to characterize the intrusion. To the extent

that the [s]tate's justification for maintaining a roadblock does not reflect a real,

compelling interest in curbing a substantial and imminent threat to the safety of

motorists on public roads, one may be unable to distinguish this supposed interest in

safety from a more general 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 enforcement

authorities pursue primarily general crime control purposes at checkpoints . . ., stops

can only be justified by some quantum of individualized suspicion." . . . Therefore,

unlike many of our sister states, this [c]ourt will not presume the existence of a

compelling interest until the [s]tate introduces some proof of the need to curb a

substantial and imminent threat to the safety of motorists on public roads distinctly

resulting from the conduct of unlicensed drivers.

Moreover, we also emphasize that the [s]tate may not merely rely upon its

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]tate's interest in

enforcing a drivers' license law is any greater than its interest in enforcing any other

law, and indeed, the [s]tate's interest in enforcing other criminal laws is at least as

great as it is in enforcing laws regulating drivers' licenses. If the [s]tate may not

legitimately establish roadblocks to detect other violations, it follows that the [s]tate

may not do so merely to enforce drivers' license laws. Therefore, to justify

suspicionless stops in this context, the [s]tate must necessarily rely upon the need to

curb a substantial and imminent threat to the safety of motorists on public roads

distinctly resulting from the conduct of unlicensed drivers.

Id. at 529-30 (citations omitted).

In our view, our supreme court's decision in State v. Hicks requires that the evidence

challenged by the defendant in this case be suppressed. The trial court correctly found that the

roadblock at issue did not comply with State v. Downey. Understandably, the state made no real

effort to prove a sufficiently compelling interest to justify the roadblock. While the state now argues

that it has a "vital interest in ensuring that only those qualified to do so are permitted to operate

motor vehicles [and] that these vehicles are fit for safe operation," it failed to provide evidence at
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the suppression hearing that unlicensed drivers are unsafe, that they present an increased danger of

imminent death or serious bodily injury, or that they pose a threat that requires heightened attention.

The record is also devoid of any evidence regarding the dangers posed by unregistered vehicles and

improperly restrained children, the remaining two justifications offered for the roadblock by Trooper

McAllister. Although child safety through proper restraint is a legitimate state interest, this court

may not assume that it is sufficiently compelling to justify the roadblock. As our supreme court

cautioned in Hicks, "because the [s]tate has the burden of establishing the reasonableness of the

seizure, one may not merely presume that [an] interest[] [is] sufficiently compelling to justify

abrogating constitutional guarantees. Only when the [s]tate makes the required showing, as it has

previously done with sobriety checkpoints, may courts accept the presence of the compelling interest

and proceed to further analyze the roadblock under this decision and Downey." Id. at 527-28.

Accordingly, the judgments of the trial court are reversed and the indictments are dismissed.

___________________________________ 

GARY R. WADE, PRESIDING JUDGE