IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs September 15, 2015

STATE OF TENNESSEE v. KENNETH DWAYNE MITCHELL

Appeal from the Criminal Court for Sullivan County

No. S61084 R. Jerry Beck, Judge

No. E2014-02542-CCA-R3-CD – Filed December 3, 2015

Following his arrest at a sobriety checkpoint on October 7, 2011, the Defendant, Kenneth 

Dwayne Mitchell, was indicted for driving under the influence (“DUI”), possession of 

drug paraphernalia, and driving with a blood alcohol content (“BAC”) of .08% or greater 

(“DUI per se”). See Tenn. Code Ann. §§ 39-17-425 & 39-17-425. Following a jury trial, 

the Defendant was convicted of DUI per se and acquitted of the remaining charges. In 

this appeal as of right, the Defendant contends that the trial court erred in denying his 

motion to suppress, arguing that his seizure at the sobriety checkpoint was unreasonable 

because adequate notice of the roadblock was not provided. Discerning no error, we 

affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE 

OGLE and ALAN E. GLENN, JJ., joined.

Stephen M. Wallace, District Public Defender; and Terry L. Jordan, Assistant District 

Public Defender, for the appellant, Kenneth Dwayne Mitchell.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; 

Barry Staubus, District Attorney General; and Benjamin Rowe, Assistant District 

Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

The Defendant‟s arrest followed his stop at a sobriety checkpoint conducted by the 

Tennessee Highway Patrol (“THP”) in Sullivan County. Prior to trial, the Defendant 

filed a motion to suppress evidence obtained as a result of his seizure at the checkpoint, 

arguing that his seizure failed to pass constitutional muster. In particular, the Defendant 
-2-

asserted that advance publicity of the roadblock was provided on October 2, 2011, five 

days prior to the roadblock, which took place on October 7, 2011. According to the 

Defendant, this violated the THP‟s General Order 410-1, which provides guidelines for 

the establishment and administration of sobriety checkpoints and requires that the THP 

notify the news media no less than two weeks prior to the roadblock.

At the hearing on the motion to suppress, Major Danny Talley of the THP testified 

that he was a district captain on October 7, 2011, and that one of his duties in that role 

was to approve requests for checkpoint locations. According to Major Talley, the process 

for site selection is dictated by Order 410-1, which directs that troop lieutenants utilize 

“data-driven analysis” to select the best sites for checkpoints. He said that relevant data 

points are “high crash areas, previous DUIs in that particular area, . . . and hazardous 

moving violations.” 

In this case, THP Lieutenant Derrick Watson submitted the request for the sobriety 

checkpoint. Major Talley testified that Lt. Watson visited the site—U.S. 11E at Allison 

Road—and filled out a form called a “site selection/removal checklist,” which lists 

qualifying criteria for checkpoints, and Major Talley approved the checkpoint request. 

Major Talley did not actively participate in, and was not physically present at, the 

roadblock.

THP Sergeant Jeff Anderson testified that he was responsible for the THP‟s 

administrative and logistical work within a thirteen-county district. Sgt. Anderson 

identified an e-mail sent on September 21, 2011, from THP Lieutenant Stephen Street to 

the Kingsport Times-News (“Times-News”) notifying the newspaper of the sobriety 

checkpoint. Sgt. Anderson also identified another email providing notice of the 

checkpoint which had been sent to the Bristol Herald Courier (“Herald Courier”) on the 

same date. In particular, the press release stated that “[t]he Tennessee Highway Patrol 

will be conducting sobriety roadside safety checkpoints during the week of October 2, 

2011, on U.S. 11E at Allison Road in Sullivan County.” Sgt. Anderson produced a copy 

of an article from the Times-News, published on Sunday October 2, 2011, which 

announced the upcoming roadblock. In particular, the paper printed that the THP would 

“conduct roadside safety checkpoints on U.S. Highway 11-E at Allison Road in Sullivan 

County through Oct[ober] 8.” There was no proof introduced that the Herald Courier ran 

a notice of the checkpoint.

Sgt. Anderson testified that it was departmental policy to send out a notice to the 

news media at least two weeks prior to the date of the roadblock. However, Sgt. 

Anderson said that the THP had no control over whether the media outlets would actually 
-3-

publish notice of a particular roadblock. In this particular case, the newspapers were 

notified seventeen days prior to the date of the sobriety checkpoint.

THP Sergeant Paul Mooneyham, Jr., testified that he was the “site supervisor” for 

the roadblock and that one of his responsibilities in that role was to provide notification 

of the sobriety checkpoints to the media. Sgt. Mooneyham testified that the protocol for 

notifying the media included his sending a media notification form to the THP‟s 

administrative personnel, who then forwarded the notice to “the immediate outlets.” The 

form must be submitted to headquarters no later than thirty days prior to the roadblock. 

He testified that this protocol was followed in the instant case. Sgt. Mooneyham testified 

that if the sobriety checkpoint had not been properly publicized pursuant to Order 410-1, 

it would not have been conducted.

Prior to the roadblock, Sgt. Mooneyham “briefed” the participating officers 

regarding particular policies pertinent to a sobriety checkpoint. Sgt. Mooneyham 

testified that he was in charge of “safety” at the sobriety checkpoint and that he was 

present at the time of the roadblock, although his job was supervisory only, and he did 

not “actively participate in the stoppage of cars.” Sgt. Mooneyham explained that large, 

orange signs reading “sobriety checkpoint ahead” were placed about one-hundred feet 

from the checkpoint site and that traffic cones were set out to control the flow of traffic. 

Sgt. Mooneyham testified that, at the time that a request for a roadblock is submitted, a 

request can be made to stop all vehicles, every fifth vehicle, or some other pattern. In this 

case, Sgt. Mooneyham requested and received approval to stop every vehicle.

Sgt. Mooneyham described the checkpoint location as a four-lane highway—two 

lanes going north and two lanes going south—with a separate, continuous turn lane in the 

middle. Additionally, there were shoulders on each side of the road, which were 

approximately the width of a driving lane. He agreed that the roadway was “safe and 

visible.” Sgt. Mooneyham testified that around thirty-eight officers were present at the 

sobriety checkpoint. In addition to the activation of blue lights on patrol cars, Sgt. 

Mooneyham utilized spotlights and “takedown” lights in order to ensure visibility at the 

site.

Sgt. Mooneyham testified that he filled out the media notification form, which he 

then delivered to administrative Sgt. Jeff Anderson, who in turn submitted it to the media 

outlets—in this case, the Times-News and Herald Courier. The Times-News printed a 

notification announcing the sobriety checkpoint on Sunday, October 2, 2011. 

In total, 600 cars passed through the checkpoint; twenty-seven citations were 

issued; and three misdemeanor arrests were made—including one DUI.
-4-

The trial court subsequently denied the Defendant‟s motion to suppress. The court 

said that it was “satisfied beyond any doubt” that the THP sent notification to the TimesNews and the Herald Courier, although the Herald Courier chose not to print it. The 

court noted that these two newspapers were the “only two major circulation newspapers 

in Sullivan County” and that they were “highly competitive.” The court discussed the 

location of the roadblock relative to the location of the nearest cities, Bristol and 

Kingsport. However, the court noted that there was no evidence introduced regarding the 

circulation of either paper or “which areas they would serve the most.” Nevertheless, the 

court ultimately concluded that the THP “did what they could do in regards to 

notification,” having sent notification to each “general circulation newspaper[] in 

Sullivan County.”

Subsequently, the case proceeded to trial, where THP Trooper Julian Robinson 

testified that he participated in the sobriety checkpoint located at U.S. 11E and Allison 

Road on October 7, 2011. Trooper Robinson testified that at around 11:30 p.m., a white 

Jeep came through the roadblock. Trooper Robinson spoke with the driver, whom he 

identified as the Defendant, and he smelled the “odor of an intoxicant [sic] substance 

coming from his person.” The Defendant was instructed to pull his vehicle over to the 

side of the road so that the trooper could further investigate “the possible impairment.” 

After performing poorly on several field sobriety tests, Trooper Robinson placed the 

Defendant under arrest and “invoked the Tennessee implied consent law.” The 

Defendant agreed to submit to a blood test to determine the level of alcohol in his system, 

and he was taken to the hospital for a blood draw.

Following his arrest, the Defendant‟s vehicle was subjected to an inventory search, 

which revealed a metal pipe located in the center console. According to Trooper 

Robinson, the pipe had an odor of marijuana. However, the pipe was never tested for the 

presence of marijuana or other drugs.

Melanie Carlisle testified that she was a “Special Agent-Forensic Scientist in [the] 

Alcohol and Toxicology Unit” with the Tennessee Bureau of Investigation. In this 

position, Agent Carlisle‟s duties included analyzing blood samples for the presence of 

alcohol “or any other volatile.” Agent Carlisle testified that she conducted an alcohol 

analysis on the Defendant‟s blood and that his BAC was .10%.

The Defendant testified that prior to his arrest in October 2011, he had been 

treated for brain cancer and that surgical excision of his tumor had resulted in losses of 

his balance and coordination and led him to have seizure-like symptoms1in stressful 

 

1 According to the Defendant, he suffered from “faux seizures” that caused him to exhibit “phantom symptoms” 

similar to those suffered by an individual having an actual seizure.
-5-

situations, making it “hard to function.” He recalled that on October 7, 2011, he had 

attended a barbeque hosted by some of his friends to celebrate the completion of his 

chemotherapy treatments. The Defendant admitted that he drank two beers at the party 

and that he had not consumed any food that day. He attributed his poor performance on 

the field sobriety tests to his medical limitations and claimed that the flashing lights at the 

checkpoint caused him to experience seizure-like symptoms. The Defendant admitted 

that, at the time of his arrest, he knew that consuming alcohol was likely to exacerbate his 

preexisting difficulties with coordination and cognitive function.

Upon this evidence, the jury convicted the Defendant of DUI per se and acquitted 

him of the charges of DUI and possession of drug paraphernalia. This timely appeal 

followed.

ANALYSIS

The Defendant claims that notice of the sobriety checkpoint was defective in three

respects: (1) the notice was not provided far enough in advance of the roadblock; (2) the 

notice was only provided to part of the county because one of the county‟s two general 

circulation newspapers chose not to print the notice; and (3) the notice did not provide an 

exact date for the roadblock. The Defendant also briefly asserts that the roadblock was 

unreasonable because the State failed to prove that the checkpoint was an effective tool 

for protecting against a public danger. However, this issue was raised for the first time 

on appeal and is, accordingly, waived. See Tenn. R. App. P. 36(a). The State responds 

that the notice provided was adequate in all respects.

I. Standard of Review

A trial court‟s findings of fact on a motion to suppress are conclusive on appeal 

unless the evidence preponderates against them. State v. Binette, 33 S.W.3d 215, 217 

(Tenn. 2000). Likewise, questions of credibility, the weight and value of the evidence, 

and the resolution of conflicting evidence are matters entrusted to the trial court, and this 

court will not reverse the trial court‟s factual findings unless the evidence preponderates 

against them. Id. (citing State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). Both proof 

presented at the suppression hearing and proof presented at trial may be considered by an 

appellate court in deciding the propriety of the trial court‟s ruling on a motion to 

suppress. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998). The evidence is to be 

viewed in the light most favorable to the prevailing party on a motion to suppress with all 

reasonable and legitimate inferences that may be drawn by the evidence. State v. Carter, 

16 S.W.3d 762, 765 (Tenn. 2000). However, our review of the application of the law to 

the facts is de novo. State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998).
-6-

II. Constitutionality of Sobriety Checkpoint

Both the Fourth Amendment to the United States Constitution and article I, section 

7 of the Tennessee Constitution protect individuals against unreasonable searches and 

seizures. “These constitutional provisions are designed to „safeguard the privacy and 

security of individuals against arbitrary invasions of government officials.‟” Keith, 978 

S.W.2d at 865 (quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967)). A police 

officer‟s stop of an automobile constitutes a seizure under both the federal and state 

constitutions. Delaware v. Prouse, 440 U.S. 648, 653 (1979); State v. Westbrooks, 594 

S.W.2d 741, 743 (Tenn. Crim. App. 1979). 

In accordance with these principles, the general rule is that any warrantless search 

or seizure is presumed to be unreasonable and requires the State to prove by a 

preponderance of the evidence that the search or seizure was conducted pursuant to an 

exception to the warrant requirement. State v. Simpson, 968 S.W.2d 776, 780 (Tenn. 

1998). Our supreme court has “depart[ed] from these fundamental constitutional 

principles” in the case of a roadblock seizure made for the purpose of identifying 

intoxicated drivers. State v. Downey, 945 S.W.2d 102, 104 (Tenn. 1997). In Downey, 

our supreme court held that at a sobriety checkpoint, officers may “stop and question 

persons whose conduct is ordinary, innocent, and free from suspicion.” Id. 

However, a seizure at a sobriety checkpoint is reasonable in accordance with the 

Tennessee Constitution only if “it is established and operated in accordance with 

predetermined operational guidelines and supervisory authority that minimize the risk of 

arbitrary intrusion on individuals and limit the discretion of law enforcement officers at 

the scene.” 945 S.W.2d at 104; see also Brown v. Texas, 443 U.S. 47, 50-51 (1979) 

(discussing, generally, the reasonableness of seizures that are less intrusive than an arrest 

and stating that such seizures “must be carried out pursuant to a plan embodying explicit, 

neutral limitations on the conduct of individual officers”). To this end, there are two 

absolute prerequisites that the State must establish before a roadblock will be found 

constitutional: (1) the decision to set up the roadblock in the first instance must not have 

been made by the officer or officers actually establishing the roadblock; and (2) the 

officers on the scene must not have discretion to select the procedures to be used in 

operating the roadblock. State v. Hayes, 188 S.W.3d 505, 516 (Tenn. 2006) (citing State 

v. Hicks, 55 S.W.3d 515, 533 (Tenn. 2011)); see also State v. Charles H. Vires, Jr., No. 

M2010-01004-CCA-R3-CD, 2011 WL 4447014, at *3 (Tenn. Crim. App. Sept. 26, 2011) 

(noting that “[t]he absence of either of these mandatory factors renders a roadblock 

unconstitutional per se”).
-7-

Furthermore, four additional factors minimize the risk of arbitrary intrusion during 

the administration of a roadblock:

(1) stopping all cars traveling in both directions, unless congested 

traffic requires permitting motorists to pass through;

(2) taking adequate safety precautions, such as warning approaching 

motorists of the roadblock and stopping cars only in a safe and visible area;

(3) conducting the roadblock with uniformed officers and marked 

patrol cars with flashing emergency lights; and

(4) providing advanced publicity of the roadblock to the public at 

large, separate from, and in addition to, any notice warnings given to 

approaching motorists.

Vires, 2011 WL 4447014, at *3 (citing Hicks, 55 S.W.3d at 533); see also Downey, 945 

S.W.2d at 110-12. “[T]he absence of any one of these factors does not necessarily 

invalidate a roadblock”; however, “they each weigh heavily in determining the overall 

reasonableness of the checkpoint.” Id. Furthermore, “the overriding question is whether 

the roadblock was established and operated in a constitutionally reasonable manner that 

minimized the intrusion on individuals and limited the discretion afforded to officers at 

the scene.” Downey, 945 S.W.2d at 110.

In this appeal, the Defendant challenges only the sufficiency of the notice

provided prior to the roadblock. In reviewing this issue, we note that “[a]lthough 

compliance with the requirements of Downey and Hicks, not General Order 410-1, 

governs the constitutionality of the roadblock, the failure of the notice to comply with 

General Order 410-1 is evidence of a lack of administrative or supervisory decision 

making.” Vires, 2011 WL 4447014, at *4 (citing Downey, 945 S.W.2d at 111, n.8; 

Hicks, 55 S.W.3d at 535, n.11).

We agree with the trial court that notice of the sobriety checkpoint was in 

compliance with Order 410-1. To the extent that the Defendant complains that notice 

was not provided at least two weeks prior to the checkpoint, he misreads the notice 

requirement contained in Order 410-1. The Order does not require that notice of the 

roadblock is actually provided to the public no later than two weeks prior to the date of 

the roadblock. Rather, the THP is merely required to provide that information to the 

news media in accordance with that timeframe. Sgt. Anderson testified that notice was 

provided to local news outlets seventeen days prior to the date of the roadblock, in full 
-8-

compliance with Order 410-1. Adherence to Order 410-in this respect bolsters the 

reasonableness of the roadblock.

Additionally, the Defendant has cited to no authority in support of his argument 

that “[n]otice[,] to be effective[,] must be available to all or most of the citizens of the 

area where the checkpoint is to be held.” The trial court observed that the Times-News

and Herald Courier were the only two general circulation papers in the county and that 

they were “highly competitive.” However, the Defendant failed to introduce any 

evidence regarding the circulation pattern of either the Times-News or the Herald Courier

within Sullivan County. Therefore, like the trial court, we are unable to determine the

import, if any, of the Herald Courier‟s failure to publish notice. 

Furthermore, the Defendant‟s argument that the THP‟s failure to provide a specific 

date for the roadblock undermines the deterrent effect of the notice is unpersuasive. 

Although one goal of the advanced publicity requirement is to deter those who might 

otherwise drive intoxicated, a panel of this court has previously found that where the 

notice provided listed a date range during which the sobriety checkpoint would be 

conducted rather than a specific date, the deterrent value might actually increase. See

State v. Rick L. Muncie, No. M2008-02097-CCA-R3-CD, 2009 WL 3031269, at *9 

(Tenn. Crim. App. Sept. 23, 2009). Again, the Defendant has pointed to no authority 

requiring that notice of the roadblock include a specific date, and this issue is without 

merit.

Finally, even had we concluded that the notification was deficient in this case, that 

would not per se lead to a determination that the sobriety checkpoint was 

unconstitutional. See Downey, 945 S.W.2d at 110; see also State v. Sherman Boddie, 

No. W2007-00685-CCA-R3-CD, 2007 WL 4322159, at *4 (Tenn. Crim. App. Dec. 11, 

2007) (holding that roadblock was constitutionally reasonable where the State proved 

compliance with the mandatory Downey and Hicks factors as well as three of the four 

remaining factors). The Defendant does not allege that the roadblock was deficient in 

any other respect, and our review leads us to conclude that the State met its burden of 

proving that the roadblock complied with Downey and its progeny. Most importantly, 

the proof introduced at the suppression hearing supports a determination that the sobriety 

checkpoint in this case was conducted with appropriate supervisory authority and that 

individual officer discretion in the field was extremely limited. Therefore, we conclude 

that the sobriety checkpoint was constitutional, and we affirm the trial court‟s denial of 

the Defendant‟s motion to suppress.
-9-

CONCLUSION

Based on the foregoing and the record as a whole, the judgment of the trial court is

affirmed.

_________________________________ 

D. KELLY THOMAS, JR., JUDGE