State of Tennessee v. Jerry W. Hayes, Jr.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

August 17, 2004 Session

STATE OF TENNESSEE v. JERRY W. HAYES

Appeal from the Criminal Court for Hamilton County

No. 244043 Rebecca Stern, Judge

No. E2003-02338-CCA-R9-CD - Filed November 9, 2004

The State appeals from an order of the Hamilton County Criminal Court suppressing evidence from

a motorist stop on public housing authority property. Following the stop at the street entrance into

the public housing development, the officer observed two quart containers of beer in the vehicle

driven by Defendant, Jerry W. Hayes. A check of Hayes’ driver’s license revealed that the license

had been suspended. Hayes was indicted for driving on a suspended license and being a minor in

possession of alcohol. The stated purpose of the housing authority’s checkpoint was to ensure the

safety of its residents by excluding trespassers and others without legitimate purposes seeking entry

into the housing development. The trial court found the stop constituted an unreasonable seizure and

was thus unconstitutional. Pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure, the

State seeks review of this ruling. After review, we conclude that the stop was reasonable; therefore,

no Fourth Amendment violation resulted. Accordingly, we reverse the trial court’s suppression of

the evidence and remand for further proceedings.

Tenn. R. App. P. 9; Judgment of the Criminal Court Reversed and Remanded

DAVID G. HAYES, J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR. and

ALAN E. GLENN , JJ., joined.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; John H.

Bledsoe, Assistant Attorney General; William H. Cox III, District Attorney General; and David

Denny, Assistant District Attorney General, for the Appellant, State of Tennessee.

Ardena J. Garth, District Public Defender; Steven D. Brown (at trial) and Donna Robinson Miller

(on appeal), Assistant District Public Defenders, Chattanooga, Tennessee, for the Appellee, Jerry W.

Hayes.

OPINION

Factual Background

The Chattanooga Housing Authority (CHA), a governmental entity, operates Poss Homes,

which provides housing for low-income families. On August 13, 2002, Officer Ralph Brown, an

investigator with CHA, was conducting an identification checkpoint at the entrance to the Poss

Homes development.1 The checkpoint is located on Washington Street which is inside the public

housing development. The City of Chattanooga had "ceded" this portion of Washington Street to

CHA. At approximately 6:30 p.m., the Defendant approached the public housing area on 25th street

and turned left into the Washington Street entrance. Twenty-fifth street ends at the Washington

Street entrance.2 Once on Washington Street, Officer Brown stopped the Defendant, who was alone

in his vehicle. According to Brown, the following events then transpired:

I told the [Defendant] what we were doing and he was asking questions about why

are you stopping me. I said, basically, we are doing an ID check and we are checking

to see if people live here. He showed me his driving license. I looked in the vehicle

and there was beer in the front passenger’s side of the vehicle and he looked under

twenty-one years of age. I looked at his driving license. We ran his driving license

through the computer and it came back suspended for nonpayment of fines.

...

. . . [T]he beer was still in the cans, it wasn’t open. I made him pull over to

the side of the road, ran him through the computer. I wrote him a citation.

...

. . . I told him to park his vehicle over there and call somebody. He says he

was visiting some friends there, he wasn’t specific about what friends he said. He

said his uncle bought the beer and he told me that.

The Defendant was indicted for driving on a suspended license and being a minor in possession of

alcohol. The Appellant moved to suppress the evidence, arguing that the vehicle checkpoint was

unconstitutional.

At the suppression hearing, Officer Brown testified that the CHA conducted vehicle

checkpoints at Poss Homes two or three times per week “usually late afternoon.” He stopped every

1

Both Chattanooga city police and CHA officers had jurisdiction in Poss Homes. However, all officers on the

property worked under the authority of Officer Brown and in fulfillment of the CHA charter.

2

Exhibit 6 depicts the entrance into the housing authority development at the intersection of East 25 th Street and

W ashington Street.

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vehicle which attempted to enter the development and, sometimes, pedestrians. Brown stated that

drivers do not use Washington Street as a “thoroughfare” and, thus, the vehicle checkpoint did not

affect drivers or pedestrians other than visitors to the development. However, the Washington Street

entrance was not the only entrance into the development.

Brown’s testimony established that it would “have been readily apparent to any motorist that

they were entering into a federally subsidized housing area[.]” According to Brown, an individual

approaching the development was free to leave the area and avoid the checkpoint, a situation which

had occurred on one prior occasion. Nonetheless, no signs announced or explained the presence of

the checkpoint.

Brown testified that, on the day in question, the Defendant was “like the third car we had

stopped that day.” According to Brown, the Defendant was free to leave until he noticed the beer

inside the vehicle.

Officer Brown stated that the purpose of the checkpoint was “to make sure that people lived

there that were coming in there and not people that were coming in there that were causing problems

with selling drugs, drunkenness and various types of crimes. People were allowed to come in there

to visit relatives[.]” Officer Brown testified that residents of Poss Homes pay a reduced rental rate.

As a condition of being permitted to live in the development, residents are not allowed to “have

individuals in there with alcohol or drugs or anyone causing problems[.]” Moreover, residents sign

a contract that they will not permit individuals into the housing development who have been

convicted of certain crimes. Brown also stated that special identification badges had been made for

the residents of the development.3

He testified that the checkpoints were established by Jeff Hazelwood, the CHA police chief.

He also testified as to the “Position Description” for his job, which was, “Under the general

supervision of the Protective Services Manager, performs development and planning programs to

conduct security programs. The assigned manager will promote projects, programs, and processes

that enhance the safety and security of all Chattanooga Housing Authority residents, staff, and

properties.” The State admitted into evidence a memorandum from Hazelwood to all investigators.

The memorandum provided, “When making your daily assignment rosters, please remember that we

can only do ID checkpoints in developments where we own the streets. At this time that is only Poss

Homes and College Hill Courts. You have no legal standing to do a check point on a public

roadway.” Brown asserted that the CHA had a neutral and explicit plan for executing these

checkpoint stops. Regarding the established procedure for conducting the checkpoint, Brown

testified:

3

Contrary to the testimony of Officer Brown, the Defendant’s grandmother and former member of the CHA

Board, Erma Joyce, testified that, in August of 2002, the identification badges had not yet been issued to Poss Homes

residents.

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What I do, I’d wait till they got on the housing property. The first thing I do

is what I call a greeting, “How are you doing. Good afternoon.” Then after that I’d

say, “I’m Ralph Brown, criminal investigator for Chattanooga Housing Authority.”

Then I would tell them the reason why I stopped them, I’m checking IDs, see if you

live here in this residence - - I mean this housing development.

After that I’d ask for some form of identification, a driving license, and after

that point sometimes I’d ask for registration and insurance, and after that I would

make a final decision on what I was going to do.

The trial court found that the checkpoint violated the Fourth Amendment and suppressed the

evidence, concluding that:

[a]ssuming arguendo that the exclusion of trespassers was a sufficiently compelling

state interest to justify suspicionless seizures, there is no evidence of the degree to

which the random entry checkpoint at Poss Homes, which . . . was at or near only one

of more than one entrance to the development, advanced the interest. If the

checkpoint was not efficacious, however, then the public interest in it did not

outweigh even minimal interference with individual liberty.

Additionally, the trial court continued, “the checkpoint plan would violate Article I, § 7 for another

reason, viz: the lack of limitations on the discretion of officers in the field.” It is from this ruling that

the State now appeals.

ANALYSIS

In reviewing a denial of a motion to suppress, this court looks to the facts adduced at the

suppression hearing which are most favorable to the prevailing party. State v. Daniel, 12 S.W.3d

420, 423 (Tenn. 2000) (citing State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). In considering the

evidence presented at the hearing, this court extends great deference to the fact-finding of the

suppression hearing judge with respect to weighing credibility, determining facts, and resolving

conflicts in the evidence. Id.; see also State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). Indeed,

these findings will be upheld unless the evidence preponderates otherwise. Daniel, 12 S.W.3d at

423. Although deference is given to the trial court’s findings of fact, this court conducts its own

appraisal of the constitutional questions presented by reviewing the law and applying it to the

specific facts of the particular case. State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998) (citing State

v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997)).

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. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396 (1979); State v. Westbrooks, 594 S.W.2d 741,

743 (Tenn. 1979). The ultimate question is whether the stop was reasonable. In judging the

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reasonableness of the stop, thus its constitutionality, we are required to examine: a) the gravity of

the public concerns served by the seizure; b) the degree to which the seizure advances the public

interest; and c) the severity of the interference with individual liberty. State v. Downey, 945 S.W.2d

102, 107 (Tenn. 1997) (quoting Brown v. Texas, 443 U.S. 47, 50-51, 99 S. Ct. 2637, 2640 (1979)).

In State v. Hicks, our supreme court addressed the constitutionality of drivers’ license

roadblocks under Article I, Section 7 of the Tennessee Constitution. State v. Hicks, 55 S.W.3d 515,

519 (Tenn. 2001). The court explained that the balancing test used in Downey is to be applied not

just to sobriety checkpoints, but in “all cases involving constitutional challenges to roadblocks or

checkpoints under the Tennessee Constitution.” Id. at 524.

This case presents an issue of first impression in the State of Tennessee. Moreover, we

would observe that the United States Supreme Court has not ruled directly upon area entry

checkpoints, which is the subject of this appeal. We find the rationale of Maxwell v. City of New

York, 102 F.3d 664 (2nd Cir. 1996), cert. denied sub nom. Maxwell v. Bratton, 552 U.S. 813 (1997),

persuasive. In Maxwell, the Second Circuit upheld the operation of a checkpoint established for cars

entering a high-crime area of the Bronx following a series of drive-by shootings. Like the court in

Maxwell, we conclude that the checkpoint at issue here satisfies the three-prong test of Brown. See

also In re Hayden Jerome Jackson v. State, No. 1021472 (Ala. Feb. 20, 2004).

First, the checkpoints in question served an important public concern. In City of Indianapolis

v. Edmond, the Supreme Court concluded that a checkpoint is unlawful if its “primary purpose”

cannot be distinguished from the “general interest in crime control.” City of Indianapolis v. Edmond,

531 U.S. 32, 48, 121 S. Ct. 447, 458 (2000). The conceded purpose of the Indianapolis roadblock

was the interdiction of narcotics. In this case, the primary purpose of the checkpoint was that of

ensuring the security of the residents in the housing development. Notwithstanding the decision in

Edmond, the Court made clear:

Our holding . . . does not affect the validity of border searches or searches at places

like airports and government buildings, where the need for such measures to ensure

public safety can be particularly acute. Nor does our opinion speak to other

intrusions aimed primarily at purposes beyond the general interest in crime control.

Id. at 47-48, 457. Moreover, in the recent decision of Illinois v. Lister, the United States Supreme

Court held that a law enforcement checkpoint on a public highway for purposes of gathering

information in a criminal investigation was not unconstitutional. Illinois v. Lidster, 540 U.S. 419,

__, 124 S. Ct. 885, 891 (2004). “Like certain other forms of police activity, say crowd control or

public safety, an information-seeking stop is not the kind of event that involves suspicion, or lack

of suspicion, of the relevant individual.” Id. at __, 889.

The property in question is government-owned and dedicated for residential use by eligible

low income families. The housing authority’s mission is to provide safe housing for its residents.

As part of its statutory mandate, CHA is required to provide its tenants with decent, safe, and

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sanitary places to live. See Tenn. Code Ann. § 13-20-102 (1999). A condition of being permitted

to live in the development requires residents to sign a contract that they will not have individuals

convicted of certain crimes in the housing area.

Second, the purpose of these entry checkpoints is to provide a measure of security for those

who live within the development. The identification checkpoint is an efficient means of determining

that persons entering the housing development are residents or visitors with a legitimate business or

social reason for being there. Thus, the checkpoints contributed “in a meaningful way to achieving

the sufficiently compelling state interest.” Hicks, 55 S.W.3d at 531.

Third, the intended level of intrusion to motorists or pedestrians is minimal. Regarding the

severity of the interference with personal liberty and privacy, our supreme court has held “a

roadblock cannot be deemed constitutionally reasonable unless ‘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 533 (quoting Downey, 945 S.W.2d at 104.) The decision in Downey enumerated

several characteristics of a roadblock that minimize the risk of arbitrary intrusion under Article I,

section 7, including: (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. Id.

No vehicle was to be stopped or its operation questioned unless entry into the housing area

was desired. If the motorist or pedestrian did not wish to pass through the checkpoint, then that

person was free to turn around and leave. For those seeking entry, the stop was meant to be brief and

was aimed solely at ascertaining the person’s connection to the neighborhood. Officer Brown, a

uniformed CHA officer, requested the Defendant “pull over to the side of the road” and “told him

to park his vehicle” out of the way of oncoming traffic.

In Downey, our supreme court observed “that roadblocks furthered the state’s interest not

only by detecting drunk drivers but also by deterring such behavior, particularly when the road block

is accompanied by advanced publicity.” Downey, 945 S.W.2d at 109. Thus in large part, the public

purpose for publicity in a sobriety roadblock is to deter criminal activity. As evidenced by the

individual’s choice not to pass through the checkpoint, the purpose of the subject identification

checkpoint is unrelated to detecting or deterring criminal behavior. Accordingly, the efficacy of

public notice would serve no purpose nor advance the public interest in protecting residents of the

housing area.

In United States v. Martinez-Fuerte, the Supreme Court held that a checkpoint aimed at

interdicting the flow of illegal aliens which involved “only a brief detention of travelers during which

all that [was] required of the vehicle’s occupants [was] a response to a brief question or two and

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possibly the production of a document evidencing a right to be in the United States” was not

sufficiently intrusive so as to violate the Fourth Amendment. United States v. Martinez-Fuerte, 428

U.S. 543, 558, 96 S. Ct. 3074, 3083 (1976) (quotation omitted). Here, as in Martinez-Fuerte, the

request for evidence of a legitimate reason to enter the housing area was not significantly intrusive.

Moreover, because the plan here was to stop all motorists seeking entry, there was little concern that

the stop would generate “fear and surprise.” Michigan Dep’t of State Police v. Sitz, 496 U.S. 444,

452-53, 110 S. Ct. 2481, 2486 (1990); Martinez-Fuerte, 428 U.S. at 558, 96 S. Ct. at 3083 (where

motorist can see that other vehicles are being stopped and can see visible signs of the officers’

authority, there is less likelihood of fright or annoyance).

However, the most important attribute of a reasonable roadblock is the presence of genuine

limitations upon the discretion of the officers in the field. Hicks, 55 S.W.3d at 533. Two facts are

critical to finding that the officers’ discretion on the scene was properly limited: (1) the decision to

set up the roadblock in the first instance cannot have been made by the officer or officers actually

establishing the checkpoint, and (2) the officers on the scene cannot decide for themselves the

procedures to be used in operating the roadblock. Id.

We emphasize the discretion afforded went only to the decision to permit or deny vehicular

entry into the area, not to the detention of persons in the vehicles. Maxwell, 102 F.3d at 668. Officer

Brown testified that the checkpoints were mandated by the CHA police chief. Police roadblocks

need not be based on reasonable suspicion of particular drivers, see Martinez-Fuerte, 428 U.S. at

560-61, 96 S. Ct. at 3084, but the detention of particular motorists beyond the initial stop “may

require satisfaction of an individualized suspicion standard.” Sitz, 496 U.S. at 451, 110 S. Ct. at

2485; see also Martinez-Fuerte, 428 U.S. at 566-67, 96 S. Ct. at 3084 (“The principal protection of

Fourth Amendment rights at checkpoints lies in appropriate limitations on the scope of the stop.”)

Thus, once the initial stop has been conducted, the decision to further detain a motorist must be

based on particularized reasonable suspicion. See generally Terry v. Ohio, 392 U.S. 1, 88 S. Ct.

1868 (1968).

CONCLUSION

Based upon the foregoing, we conclude that the checkpoint stop was reasonable under Fourth

Amendment principles and thus constitutional. Accordingly, we reverse the order of the Hamilton

County Criminal Court granting the Defendant’s motion to suppress and remand for further

proceedings consistent with this opinion.

___________________________________

DAVID G. HAYES, JUDGE

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