State v. Larry Allen Hicks

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

May 2, 2001 Session

STATE OF TENNESSEE v. LARRY ALLEN HICKS

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Hamilton County

No. 221717 Hon. Douglas A. Meyer, Judge

No. E1999-00957-SC-R11-CD - Filed September 11, 2001

FRANK F. DROWOTA, III, J., concurring and dissenting.

I concur in the result reached by the majority because the evidence in this record establishes

that the operation, location, and duration of this license checkpoint was solely within the discretion

of Lieutenant Ronnie Hill of the Tennessee Highway Patrol. I, however, cannot agree with the

analysis employed by the majority to reach this result. The majority’s analysis is an unnecessary and

unwarranted modification of the analysis adopted in Downey which effectively renders license

checkpoints unconstitutional. In my view, license checkpoints are not per se unconstitutional,

although they may be administered in an unconstitutional manner, as in this case, when supervisory

approval of the location and time of the checkpoint is not sought, and/or the checkpoint is not

conducted in accordance with an administrative plan containing explicit limitations on the conduct

and discretion of officers in the field.

Analysis

The facts of this case are largely undisputed and accurately stated by the majority. The

majority and I disagree, however, as to the proper interpretation and application of the law. In State

v. Downey, 945 S.W.2d 102, 110-11 (Tenn. 1997), we considered a constitutional challenge to

sobriety checkpoints. To analyze this challenge, we adopted as the standard for the Tennessee

Constitution a three-pronged balancing test which previously had been employed by the United

States Supreme Court to determine the constitutionality of highway checkpoints. See Michigan v.

Sitz, 496 U. S. 444, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990) (upholding sobriety checkpoints);

United States v. Martinez-Fuerte, 428 U.S. 543, 96 S. Ct. 3074, 49 L. Ed.2d 1116 (1976) (upholding

highway checkpoints near the border aimed at detecting illegal aliens); See also Brown v. Texas, 443

U.S. 47, 99 S. Ct. 2637, 61 L. Ed.2d 357 (1979) (holding that application of a Texas statute

permitting detention and requiring identification violates the Fourth Amendment if officers lack

reasonable suspicion for the detention).

This balancing test requires consideration of “(1) the gravity of the public concerns served

by the roadblock; (2) the degree to which the roadblock advances the public interests; and (3) the

severity of the roadblock’s interference with an individual’s liberty or privacy interest.” Downey,

945 S.W.2d at 107 (quoting Brown, 443 U.S. at 40-51, 99 S. Ct. at 2640). “A central concern in

balancing these competing considerations in a variety of settings has been to assure that an

individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the

unfettered discretion of officers in the field.” 945 S.W.2d at 107, (internal citations omitted). In the

highway checkpoint context, this concern is alleviated by requiring that checkpoints be carried out

pursuant to supervisory control and a plan containing explicit limitations on the conduct and

discretion of individual field officers. See Id.

Applying this test in Downey, we described as “compelling,” the State’s interest in detecting

and deterring motorists who drive while under the influence of alcohol. Moreover, we recognized

that sobriety checkpoints effectively advance this interest and aid in eliminating this serious public

danger. Therefore, we held that sobriety checkpoints are constitutional so long as they are

“established and operated in a manner that minimizes intrusion and limits discretion.” Downey, 945

S.W.2d at 110. To ensure that such checkpoints impose only minimal intrusion on individual

privacy and limit official discretion, we adopted the following guidelines originally articulated by

the California, Iowa, and Kansas supreme courts:1

The guidelines include supervisory authority which carefully targets the time and

location of roadblocks and establishes neutral procedures for their operation. They

also include adequate warnings, advance publicity, minimizing length and nature of

detention, adequate safety precautions, and the availability of less intrusive methods

for combating the problem.

Id. at 110-11.

Downey is a very recent, unanimous, and comprehensive decision. However, rather than

applying the three-pronged balancing test adopted in Downey, the majority states that license

roadblocks are unconstitutional unless the State offers specific proof showing that

drivers not possessing a license are unable to safely operate motor vehicles on the

roads and highways of his 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 may courts find that the State

has a sufficiently compelling interest to justify maintaining drivers’ license

roadblocks.

1

Downey , 945 S.W.2d at 109-10 (adopting guidelines from Ingersoll v. Palmer, 743 P.2d 1299 (Cal. 1987);

State v. Loyd, 530 N .W.2d 7 08 (Iow a 1995 ); State v. Deskins, 673 P.2d 1174 (Ka n. 1983)).

-2-

The obvious effect of the majority’s adoption of this standard – one that the State cannot possibly

meet – is to hold that drivers’ license checkpoints are unconstitutional in Tennessee.2 Indeed, two

members of the Court express this view.

Such a result clearly is contrary to the overwhelming weight of authority. State and federal

courts alike almost universally employ the three-pronged balancing test adopted in Downey when

analyzing the constitutionality of license checkpoints. See, e.g., State v. Orr, 745 N.E.2d 1036,

1038-40 (Ohio 2001). Employing this test, courts in at least twenty-five states and the District of

Columbia have upheld some form of license checkpoints.3 This number includes one state supreme

court which struck down sobriety checkpoints on state constitutional grounds. See State v. Koppel

499A.2d 977, 980 (N.H. 1985) (striking down sobriety checkpoints but finding license checkpoints

a reasonable means of enforcing a legitimate state interest because, without such checkpoints, most

violations are undetectable).4 In addition to the many state courts, at least four circuit courts of

appeal have upheld the constitutionality of license checkpoints.5

2

As a practical m atter, the m ajority’s ho lding in this regard has little impact since sobriety checkpoints still may

be constitutionally maintained, so long as they comp ort with the guidelines in Downey . Obviously, drivers licenses can

be verified at sobriety ch eckpoints.

3

See McIn nish v. State , 584 So.2d 935 (Ala. Crim. App. 1991); Camp v. State, 764 S.W.2d 463 (Ark. Ct. App.

1989); People v. Alvarez, 926 P.2 d 365 (C al. 1996 ); People v. Andrews, 484 P.2d 1207 (C olo. 197 1); Howard v.

Voshe ll, 621 A .2d 804 (Del. Super. 1 992); Duncan v. United States, 629 A .2d 1 (D .C. App . 1993); Renna rd v. State ,

675 So.2d 1006 (Fla. Ct. App. 1996); LaFon taine v. State , 497 S.E .2d 367 (Ga. 199 8); People v. Bartley, 486 N.E.2d

880 (Ill. 1985); State v. Loyd, 530 N .W.2d 7 08 (Iow a 1995 ); State v. Barker, 850 P.2d 885 (K an. 199 3); Kinslow v.

Com monw ealth, 660 S.W.2d 677 (Ky. Ct. A pp. 198 3); State v. Jackson, 764 So.2d 64 (La. 2000 ); State v. Cloukey, 486

A.2d 143 (M e. 1985 ); Miller v. S tate, 373 So.2d 1 004 (M iss. 1979); State v. Severance, 237 A.2d 683 (N.H. 1968); State

v. Kabayama, 226 A.2d 760 (N .J. Super. Ct. App. Div. 1967), affirmed without opinion by 246 A .2d 714 (N.J. 1968);

State v. Valencia-Olaya, 736 P.2 d 495 (N .M. Ct. A pp. 198 7); State v. Grooms, 483 S.E.2d 445 (N.C. Ct. App. 1997);

State v. Wetzel, 456 N .W.2d 1 15 (N.D . 1990); State v. Orr, 745 N.E.2d 1036 (Ohio 2001); State v. Sh ankle , 647 P.2d

959 (Or. Ct. App. 1 982); Comm onwealth v. B louse, 611 A .2d 117 7 (Pa. 19 92); Murp hy v. State , 864 S.W.2d 70 (Tex.

Ct. App . 1992); Lowe v. Com monw ealth, 337 S.E.2d 273 (V a. 1985 ); State v. Da vis, 464 S.E.2d 598 (W . Va. 1995).

It is also significa nt to note th at the Ten nessee C ourt of C riminal A ppeals pr eviously has uph eld the co nstitutionality

of license che ckpoin ts. See, e.g., State v. Joe W. Steward, No. M1999-01284-CCA-R3-CD, 2000 WL 1246436 (Tenn.

Crim. App., Aug.18, 2000) (perm. app. pendin g); State v. David Lynn Hagy, No. 03C01-9505-CR-00152, 1995 WL

71(Tenn. Crim. Ap p., Dec. 5, 1995 )(Barke r, J., author) (no app. filed); State v. David Arthur McCarter, No. 03C01-

9406-CR-00240 , 1995 WL 1 03704 (Tenn. Crim. App., M ar.13, 1995) (perm. app. denied Tenn. July 10, 1995).

4

Presum ably license checkpo ints would be fo und unco nstitutional in the other four states that find sobr iety

checkp oints uncon stitutional. See Sitz v. Department of State Police, 506 N .W.2d 2 09 (M ich. 199 3); Ascher v. Comm’r

of Public Sa fety, 519 N.W.2d 183 (Minn. 1994); Pimental v. Department of Transp., 561 A .2d 134 8 (R.I. 19 89); Seattle

v. Mesiani, 755 P.2 d 1057 (Wash . 1988). Massac husetts is the only other state supreme court which has suggested that

license checkpoints may be vulnerable to constitutional attack. See Commonw ealth v. Rodriguez, 722 N.E.2d 429, 433

(Mass. 2000).

5

United States v. Galindo-Gonzales, 142 F.3d 1217 (10th C ir. 1998); Merrett v. Moore , 58 F.3d 1547 (11th

Cir. 1995); United States v. Trevino, 60 F.3d 333 (7th Cir.1995 ); United States v. McFayden, 865 F.2d 1306 (D.C . Cir.

1989).

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While the United States Supreme Court has not squarely addressed this issue, the Court

concluded in Delaware v. Prouse, 440 U. S. 648, 658, 99 S. Ct. 1391, 1398, 59 L. Ed.2d 660 (1979),

that states have a “vital interest in ensuring that only those qualified to do so are permitted to operate

motor vehicles, that these vehicles are fit for safe operation, and hence that licensing, registration,

and vehicle inspection requirements are observed.” The Court also suggested in Prouse that

roadblock-type stops for the purpose of verifying drivers’ licenses and vehicle registrations would

be constitutionally permissible. Id., 440 U. S. at 653, 99 S. Ct. at 1401. More recently, in City of

Indianapolis v. Edmond, 531 U.S. 32, 47, 121 S. Ct. 447, 457, 148 L. Ed. 2d 333 (2000), the Court

struck down drug interdiction checkpoints implemented primarily to uncover evidence of criminal

wrongdoing, but stressed that its holding did not implicate the constitutionality of license

checkpoints:

It goes without saying that our holding today does nothing to alter the constitutional

status of the sobriety and border checkpoints that we approved in Sitz and Martinez-

Fuerte, or of the type of traffic checkpoint that we suggested would be lawful in

Prouse. The constitutionality of such checkpoint programs still depends on a

balancing of the competing interests at stake and the effectiveness of the program.

Id. (emphasis added). This statement strongly indicates that when the issue is squarely presented,

the United States Supreme Court, applying the same standard adopted by this Court in Downey,

would uphold the constitutionality of license checkpoints6.

I fully realize this Court is free to interpret our state constitutional provisions as affording

greater protections than those afforded by the federal constitution. However, we declined to do so

in Downey when we adopted the three-pronged federal test as the standard for determining the state

constitutionality of highway checkpoints. In fact, we stated in Downey that “Article I, Section 7 is

identical in intent and purpose with the Fourth Amendment.” 945 S.W.2d at 106. Therefore, I am

puzzled by the majority’s decision to now re-interpret Downey as affording greater protection.7

6

Justice Barker’s opinion relies upon Edmond to support its conclusion. My reading of Edmond reveals that

it in no way supports the premise that license checkpoints are unconstitutional. The Court in Edmond very carefully and

clearly indicated that its holding did not affect the validity of license checkpoints. In addition, in footnote 2, the Court

pointed out that the City of Indianapolis had conceded that narcotics detection was the primary program matic purpose

of the checkpoints at issue in that case. The Court based its decision on the programmatic p urpose of the checkp oints,

not on an individual checkpoint, so, of course, the Court did not consider the specifics of how the checkpoints were

established. The Co urt specifically rec ognized th at it “need not d ecide whe ther the Sta te may establish a checkpoint

program with the primary purpose of checking licenses or driver sobriety and a secondary purpose of interdicting

narcotics.” Edmond , 531 U .S. at 47, 12 1 S.Ct. at 457. This statement clearly indicates that the Court views license

checkpo ints as constitutiona lly valid in the same way it views driver sobriety checks constitutionally valid. The Edmond

decision sim ply does no t support the majority’s co nclusions.

7

Effectively the majority is interpreting the United State Constitution to provide greater protection than the

United States Supreme Court’s own federal constitutional precede nts have pro vided, eve n though the m ajority clearly

has no autho rity to do so. See Arkansas v. Sullivan, __ U. S. __, 121 S. Ct. 1876, 149 L. Ed. 2d 994 (2001) (holding

(continu ed...)

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In addition, a more expansive interpretation of Article I, Section 7 is not appropriate in this

context. We have previously recognized that when interpreting Article I, Section 7, we will depart

from federal precedent only when “(1) adopting federal Fourth Amendment standards would require

overruling a settled development of state constitutional law; and (2) when linguistic differences

justify distinct interpretations of state and federal constitutional provisions.” State v. Vineyard, 958

S.W.2d 730, 733-34 (Tenn. 1997) (internal quotations omitted). Certainly, following federal

precedent in this context does not require overruling a settled development of state constitutional

law. To the contrary, refusing to follow federal precedent here amounts to an implicit overruling or

modification of a very recent state constitutional decision, namely Downey. Moreover, there are no

linguistic differences justifying a distinct interpretation of the state constitutional provision in this

context. Accordingly, the majority’s decision is an unnecessary and unwarranted abandonment of

the test recently adopted in Downey.

Moreover, my research reveals that the test adopted by the majority is without precedential

support. I have found no decision requiring the State to offer specific proof that the safety threat

from unlicensed drivers “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 magnitude of the

problem commands heightened attention.”

The majority’s assertion that such specific proof is required by Downey is simply incorrect.

This Court did not require the State to introduce specific proof on the risks posed by drunk drivers

to establish the constitutional validity of sobriety checkpoints in Downey. We merely recognized

the national statistics about the dangers and risks posed by drunk drivers. See, Downey, 945 S.W.2d

at 110 (summarizing statistics quoted by the United States Supreme Court in Michigan v. Sitz, 496

U. S. at 456, 110 S. Ct. at 2488). Also erroneous is the majority’s assertion that Downey requires

the State to advance a “compelling” interest before analysis continues under the three-pronged test.

While the adjective “compelling” was used in Downey to describe the public interest at stake in

detecting and deterring drunk drivers, nowhere does Downey suggest that the State is required to

advance a “compelling” interest to justify further analysis of the constitutionality of a suspicionless

highway checkpoint. Indeed, the test adopted in Downey requires only a weighing of “(1) the

gravity of the public concerns served by the roadblock; (2) the degree to which the roadblock

advances the public interests; and (3) the severity of the roadblock’s interference with an individual’s

liberty or privacy interest.” Downey, 945 S.W.2d at 107. Of course, the “gravity” – strength or

seriousness – of the public concern or State’s interest will affect the weighing process, but no case,

certainly not Downey, has required the State to establish a compelling interest as a threshold matter

to continue the three-pronged analysis, as the majority opinion appears to require.8

7

(...continued)

that the Arkansas Supreme Court may not interpret the United States Constitution to provide greater protection than the

United S tates Suprem e Court’s ow n federal co nstitutional prec edents pro vide).

8

Interestingly , the majority attempts to limit the showing it adopts to suspicionless, non-emergency

investigatory roadblo cks and attempts to distinguish fixed we igh-and -inspection stations estab lished by statute. With

(continu ed...)

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In my view, proper application of the three-pronged balancing test adopted in Downey results

in a finding that license checkpoints are not per se unconstitutional. With respect to the first factor,

the gravity of the public concern, I again note that the United State Supreme Court and many other

state courts, including the Court of Criminal Appeals, have recognized that states have a “vital

interest” in ensuring highway safety by removing unlicensed drivers from the roadways.9

“Automobile licenses are issued periodically to evidence that the drivers holding them are

sufficiently familiar with the rules of the road and are physically qualified to operate a motor

vehicle.” Prouse, 440 U.S. at 658, 99 S. Ct. at 1398. Persons who are too young to drive pose a

threat to public safety. See Orr, 745 N.E.2d at 1040-41. Persons who have had their licenses

suspended for driving under the influence convictions or traffic offenses often disregard the

suspension and drive anyway, endangering the public. Id. In short, the State has a critical interest

in protecting its citizens from drivers who either are not qualified to drive or have been forbidden

to drive because of a record of driving offenses. Id. at 1041.

With respect to the second factor, the degree to which the checkpoint advances the public

interest, it seems obvious that there is no better way, indeed no other way, to advance the public

interest in detecting unlicensed drivers than license checkpoints. As the New Hampshire Supreme

Court has recognized, license checkpoints are “the only effective means available to law enforcement

authorities of enforcing the license and registration laws.” Koppel, 499 A.2d at 980. Moreover, the

Ohio Supreme Court has recognized:

[c]ompounding the danger to the public from unlicensed drivers is the fact that much of the

danger is hidden from plain view. While many types of dangerous motorists – drunk drivers,

for example – exhibit erratic driving, the unlicensed driver often displays no observable

characteristics. Police officers on roving patrol cannot pull over a vehicle for the sole

purpose of checking the driver’s license and registration. Therefore, without checkpoints,

the only way in which police can identify an unlicensed driver is by waiting for the driver to

commit a driving offense. In at least some instances, the offense would not even have

occurred had the offending driver been detected earlier and been removed from the roadways.

Orr, 745 N.E.2d at 1040-41.

8

(...continued)

all due resp ect, this is a distinction without a difference. Certainly the state’s interest in keeping unlicensed drivers off

the roadw ays is just as great, if not greater, than the interest protected by the weigh-and-inspection stations established

by statute. Furth ermor e, I know of no prin ciple of law that suggests suspicionless stops authorized by statutes are

subject to less intensive constitutional scrutiny than other suspicionless stops. In fact, the United States Supreme Cou rt

decision in Brown, which stru ck dow n a Tex as statute that w as applied to author ize suspicio nless deten tions, wo uld

seem to suggest that there is no constitutional difference between suspicionless stops authorized by statute and those

initiated with out a statute. See, Brown, 443 U. S. at 53, 99 S. Ct. at 2640.

9

Prouse , 440 U . S. at 658, 9 9 S. Ct. at 13 98; Hagy, 1995 WL 712355, *2.

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The third and final factor for consideration is the severity of the checkpoint’s interference

with an individual’s liberty or privacy interest. License checkpoints constitute only a minimal

interference with an individual’s liberty interest. The detention is brief, and, if conducted in

accordance with appropriate administrative guidelines, individuals suffer little or no subjective

anxiety because the checkpoint will be publicized, signs announcing the checkpoint will be

conspicuously placed on the highway, and officers will immediately advise individuals as to the

purpose of the checkpoint.

Therefore, after weighing these competing interests, as required by the analysis adopted in

Downey, I am of the opinion that license checkpoints are not unconstitutional per se. Such

checkpoints may be administered in an unconstitutional manner when supervisory approval of the

location and time of the checkpoint is not sought, and/or the checkpoint is not conducted in

accordance with administrative guidelines limiting the conduct and discretion of officers in the field.

In Downey, we emphasized the importance of supervisory control over site selection and

operation of sobriety checkpoints. While I dissented in Downey from the majority’s conclusion that

the evidence failed to establish supervisory and administrative approval of the sobriety checkpoint,

after reviewing the record in this case, I am convinced that the evidence fails to establish supervisory

and administrative approval of this license checkpoint.10

Lieutenant Hill initially testified that he established this roadblock at the direction of his

supervisors pursuant to Department of Safety General Order 410, that others had operated roadblocks

at this location during the week preceding October 11, 1997, and that he therefore had assumed

others had taken the necessary steps to ensure the roadblock complied with General Order 410.

However, counsel for Hicks offered documentary evidence from the Department of Safety showing

that no roadblocks had been operated at this location prior to those operated by Lieutenant Hill. Also

significant is Lieutenant Hill’s uncertainty as to why officers from Red Bank and the City of

Chattanooga participated in the checkpoint and who summoned them. Unlike Downey, where I

viewed the participation of officers from three different jurisdictions as evidence of prior

administrative and supervisory approval, Lieutenant Hill’s testimony in this case reveals that the

multi-jurisdictional participation resulted from mere coincidence rather than advance planning.

In addition to the lack of supervisory approval, Hicks offered proof to show that this

checkpoint failed in other ways to follow the guidelines established in Downey. For example, this

checkpoint had not been previously publicized, no signs were placed on the road indicating the

location and imminency of the checkpoint, motorists were not advised of the purpose of the

roadblock, and officers were not using red batons or wearing orange vests as required by General

Order 410. Simply stated, the evidence in this record supports and does not preponderate against

the trial court’s finding that this roadblock was administered in an unconstitutional manner under

this Court’s decision in Downey. Accordingly, I agree that the Court of Criminal Appeals erred in

reversing the trial court’s decision granting the defendant’s motion to suppress.

10

Interestingly, Lieutenant Hill operated the sobriety checkpoint which resulted in our decision in Downey.

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Conclusion

For the reasons herein stated, I dissent from the analysis employed by the majority, but I

agree with the majority’s conclusion that the Court of Criminal Appeals erred in reversing the trial

court’s judgment granting the defendant’s motion to suppress.

___________________________________

FRANK F. DROWOTA, III, JUSTICE

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