State of Tennessee v. Sherman Boddie

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

October 2, 2007 Session

STATE OF TENNESSEE v. SHERMAN BODDIE

Direct Appeal from the Circuit Court for Tipton County

No. 5427 Joseph H. Walker, III, Judge

No. W2007-00685-CCA-R3-CD - Filed December 11, 2007

The defendant, Sherman Boddie, was convicted in the Tipton County Circuit Court of driving under

the influence (DUI) and DUI per se. The trial court merged the convictions and sentenced the

defendant to eleven months and twenty-nine days, to be served on unsupervised probation after forty-

eight hours incarceration. On appeal, the defendant argues that the trial court erred in denying his

motion to suppress evidence of his intoxication, because the sobriety roadblock where he was

stopped violated the Tennessee Constitution. We hold that the roadblock was constitutional and

affirm the trial court’s denial of the motion to suppress.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JERRY L. SMITH and NORMA MCGEE

OGLE, JJ., joined.

J. Thomas Caldwell, Ripley, Tennessee, for the appellant, Sherman Boddie.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;

D. Michael Dunavant, District Attorney General; and James Walter Freeland, Jr., Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS

Sergeant Kevin Williams of the Tennessee Highway Patrol (THP), the sole witness at the

suppression hearing, testified that he was the supervisor at a THP sobriety checkpoint on Highway

14 in Tipton County on April 14, 2006. Before operating the checkpoint Sergeant Williams

discussed THP General Order 410-1, which establishes policies and procedures for roadblocks, with

the other officers who would be assisting him. He testified that the location and time for the

roadblock were selected in advance by his immediate supervisor. Sergeant Williams testified that

“to the best of his knowledge” the media were informed in advance of the sobriety checkpoint. He

remembered that safety cones, marked units with activated emergency lights, traffic vests, warning

signs, and flashlight batons were used at the roadblock. The area was illuminated and there was a

place for drivers who did not wish to pass through the checkpoint to turn around. Each vehicle that

approached the checkpoint was stopped.

The trial court held that the roadblock was conducted in a reasonable manner, finding that

adequate safety precautions were taken, fair notice of the stop was given, all cars in both directions

were stopped, and the discretion of the officers at the scene was properly limited. The court did not

affirmatively find that the roadblock was publicized in advance but held that the absence of this

factor did not invalidate the stop. Accordingly, the court denied the defendant’s motion to suppress.

A bench trial was then conducted, at which Trooper Marvin Norfolk testified that he stopped

the defendant at the sobriety checkpoint at around 10:20 p.m. on April 14, 2006. He noticed that the

defendant was unsteady on his feet, his speech was slurred, his eyes were “red watery,” and he had

“a very strong odor of an alcoholic beverage” on his breath. The defendant admitted that he had

been drinking “something.” Trooper Norfolk administered several field sobriety tasks to the

defendant, who “performed poorly.” In Trooper Norfolk’s opinion, the defendant was intoxicated.

The fifty-eight-year-old defendant testified that he lived in Bartlett, Tennessee, and had been

employed as a truck driver for thirteen years. Asked on cross-examination if he told the officer the

night of his arrest that he had consumed “three ten-ounce Coors . . . over a period of some hours

before [the] stop,” the defendant replied, “I think so.” The defendant acknowledged that he had been

drinking that day while working in his garden in the country and said he was on his way home to

Bartlett when he was stopped. He said that he consumed his last beer around 7:00 p.m. and could

not explain why his blood-alcohol content was .13%. After considering the proof and the arguments

of counsel, the trial court found the defendant guilty of DUI and DUI per se and merged the two

convictions.

ANALYSIS

The defendant argues that the trial court erred in denying his motion to suppress because his

seizure at the roadblock violated Article I, sections 7-8 of the Tennessee Constitution. We review

the trial court's denial of the defendant's motion to suppress by the following well-established

standard:

Questions of credibility of the witnesses, the weight and value of the

evidence, and resolution of conflicts in the evidence are matters entrusted to the trial

judge as the trier of fact. The party prevailing in the trial court is entitled to the

strongest legitimate view of the evidence adduced at the suppression hearing as well

as all reasonable and legitimate inferences that may be drawn from that evidence. So

long as the greater weight of the evidence supports the trial court's findings, those

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findings shall be upheld. In other words, a trial court's findings of fact in a

suppression hearing will be upheld unless the evidence preponderates otherwise.

State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). However, the trial court’s application of law to the

facts is reviewed de novo, with no presumption of correctness. State v. Daniel, 12 S.W.3d 420, 423

(Tenn. 2000). This court may consider the proof at trial, as well as at the suppression hearing, when

considering the appropriateness of the trial court's ruling on a pretrial motion to suppress. See State

v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998) (holding that because the rules of appellate procedure

“contemplate that allegations of error should be evaluated in light of the entire record[,]” an appellate

court “may consider the proof adduced both at the suppression hearing and at trial”).

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. See U.S.

Const. Amend. IV; Tenn. Const. art. I, § 7. “These constitutional provisions are designed to

‘safeguard the privacy and security of individuals against arbitrary invasions of government

officials.’” State v. Keith, 978 S.W.2d 861, 865 (Tenn. 1998) (quoting Camara v. Municipal Court,

387 U.S. 523, 528, 87 S. Ct. 1727, 1730 (1967)). A search or seizure conducted without a warrant

is presumed unreasonable, and evidence obtained as a result will be suppressed “unless the

prosecution demonstrates by a preponderance of the evidence that the search or seizure was

conducted pursuant to an exception to the warrant requirement.” Id. at 865 (citations omitted). The

stop of an automobile, even for the short duration involved in a driver's checkpoint, constitutes a

seizure of persons under both the United States and Tennessee Constitutions. See Whren v. United

States, 517 U.S. 806, 809-10, 116 S. Ct. 1769, 1772 (1996); State v. Downey, 945 S.W.2d 102, 107

(Tenn. 1997). Thus, to be considered reasonable, the warrantless stop of an automobile must fall

under one of the exceptions to the warrant requirement. These exceptions include roadblocks that

are conducted “pursuant to a plan embodying explicit, neutral limitations on the conduct of

individual officers.” Brown v. Texas, 443 U.S. 47, 51, 99 S. Ct. 2637, 2640 (1979). The United

States Supreme Court, balancing the public interest in preventing drunk driving against the Fourth

Amendment interest of the individual, has held that a roadblock designed to check for intoxicated

drivers is not violative of the Fourth Amendment to the United States Constitution. Michigan v.

Sitz, 496 U.S. 444, 453, 110 S. Ct. 2481, 2485 (1990).

In Downey, 945 S.W.2d at 110, our supreme court adopted the balancing analysis used in Sitz

to determine whether sobriety checkpoints violate Article I, section 7 of the Tennessee Constitution.

Under this analysis, which weighs “‘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,’” id. at 107 (quoting Brown, 443 U.S. at 50-51, 99 S. Ct. at 2640), the court

concluded that a sobriety checkpoint, because of the compelling public interest in preventing drunk

driving, can be a reasonable seizure under the Tennessee Constitution “provided 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.” Id. at 104.

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In State v. Hicks, 55 S.W.3d 515, 533 (Tenn. 2001), our supreme court discussed Downey’s

holding, explaining that the most important aspect of a reasonable roadblock is “the presence of

genuine limitations upon the discretion of the officers in the field.” To establish this factor, the State

must show both that the initial decision to establish the roadblock was not made by field officers and

that the officers adhered to neutral procedures previously fixed by administrative decision or

regulation. The absence of either limitation on field officers’ discretion renders a roadblock

unconstitutional per se. Id. The court also listed four characteristics of a roadblock that minimize

the risk of arbitrary intrusion with liberty, including: (1) stopping all cars traveling in both directions

unless traffic is heavily congested; (2) taking adequate safety precautions; (3) employing uniformed

officers, marked patrol cars, and flashing emergency lights; and (4) providing advance publicity of

the roadblock. Each of these four factors weighs heavily in determining the overall reasonableness

of a stop, but the absence of one of them will not necessarily invalidate a roadblock. Id.

Applying these principles to the facts of this case, we uphold the finding of the trial court that

the State followed proper procedures in conducting the roadblock. Beginning with the most

important of the Downey/Hicks factors, there was sufficient evidence for the trial court to find that

the discretion of the officers in the field was properly limited. Sergeant Williams’ uncontroverted

testimony at the suppression hearing was that the time and location of the roadblock were selected

in advance by his superior officer and that the officers followed the procedures outlined in THP

General Order 410-1. With regard to three of the four remaining factors, Sergeant Williams testified

that all cars were stopped in both directions, adequate safety precautions were taken, officers were

in uniform, and marked patrol cars with activated emergency lights were present.

As we understand it, the defendant’s argument is that the roadblock was unconstitutional per

se because the State failed to prove that it was publicized in advance. This is an incorrect

interpretation of our law. Hicks unequivocally holds that the absence of advance publicity will not

necessarily invalidate a roadblock; a court must evaluate the overall reasonableness of the checkpoint

by considering all of the factors. 55 S.W.3d at 533; see also State v. Freddie Ray Guye, No. 01C01-

9803-CC-00141, 1999 WL 54805, at *2 (Tenn. Crim. App. Feb. 8, 1999), perm. to appeal denied

(Tenn. July 19, 1999). A roadblock is unconstitutional per se only when the field officers’ discretion

is not properly limited.

The record supports the trial court’s holding that the checkpoint was operated in a

constitutionally reasonable manner. Because the State proved the existence of both mandatory

Downey/Hicks factors and three of the four remaining factors beyond a reasonable doubt, the lack

of proof of advance publicity does not invalidate the roadblock.

CONCLUSION

Based upon the foregoing authorities and reasoning, the judgment of the trial court is

affirmed.

___________________________________

ALAN E. GLENN, JUDGE

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