State v. 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

The primary issue in this case is whether drivers’ license roadblocks are constitutionally reasonable

under Article I, section 7 of the Tennessee Constitution. After officers stopped the appellant at a

drivers’ license checkpoint, they discovered marijuana in the front seat of his car. The appellant later

successfully moved to suppress the evidence, arguing that the roadblock did not conform to this

Court’s decision in State v. Downey, 945 S.W.2d 102 (Tenn. 1997). The State appealed to the Court

of Criminal Appeals, which reversed the trial court and found that the roadblock was constitutionally

reasonable. We granted permission to appeal and hold that the roadblock in this case was established

and operated contrary to Article I, section 7 and our decision in Downey. We reverse the judgment

of the Court of Criminal Appeals.

Tenn. R. App. P. 11 Application for Permission to Appeal; Judgment of the

Court of Criminal Appeals Reversed; Indictment Dismissed

WILLIAM M. BARKER , J., delivered the opinion of the court, in which JANICE M. HOLDER , J., joined.

E. RILEY ANDERSON, C.J., filed a concurring opinion, in which ADOLPHO A. BIRCH, JR., J., joined.

FRANK F. DROWOTA , III, J., filed a concurring and dissenting opinion.

Jerry H. Summers, Chattanooga, Tennessee, for the appellant, Larry Allen Hicks.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Daryl J.

Brand, Associate Solicitor General, Nashville, Tennessee, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

At 1:15 a.m. on October 11, 1997, the appellant, Larry Allen Hicks, was stopped at a

roadblock on Suck Creek Road near the Hamilton County and Marion County line. This roadblock,

which was established ostensibly as a drivers’ license roadblock pursuant to General Order 410 of

the Department of Safety, was conducted by six police officers, including two officers each from the

Tennessee Highway Patrol, the Chattanooga Police Department, and the Red Bank Police

Department. One of the Chattanooga officers was a K-9 officer, and another officer carried a picture

of a suspect known as the “North Chattanooga rapist.”

After stopping the appellant’s car, Officer Penny of the Red Bank Police Department

requested to see the appellant’s license. During this time, one officer on the scene detected the smell

of marijuana coming from the appellant’s car, and the K-9 officer walked his dog around the car to

sniff for drugs. When the dog alerted that drugs were present, the officers placed the appellant under

arrest and called their supervisor, Lieutenant Ronnie Hill of the highway patrol, to the scene of the

stop. A subsequent search of the appellant’s car uncovered five pounds of marijuana in the

passenger seat. Neither of the highway patrol officers personally participated in the appellant’s stop

or arrest.

Following his arrest, the appellant moved to suppress the evidence against him, alleging that

the stop was unreasonable under Article I, section 7 of the Tennessee Constitution and that it

represented an arbitrary intrusion into his reasonable expectation of privacy. At the hearing on the

motion held on November 10, 1998, the appellant called one of the officers, Sergeant Gregory Short,

to testify as to the details of the roadblock. Officer Short stated that the officers did not provide any

advance publicity concerning the roadblock, that they did not post any signs warning approaching

motorists of the roadblock, and that they did not use any orange safety cones to direct traffic. He

also testified that none of the officers was wearing a safety vest or carrying an illuminated baton as

was otherwise required by General Order 410 for night roadblocks. According to Officer Short, the

only evidence that a roadblock was in operation was the presence of the officers and the two

highway patrol cars. Finally, Officer Short testified that officers other than those with the highway

patrol stopped cars to request licenses and that some officers questioned drivers further about matters

unrelated to the license check.

The appellant also called Lieutenant Hill to testify as to the operation of the roadblock.

Lieutenant Hill stated that he was ordered to supervise the roadblock during his shift by his troop

leader, Lieutenant Phillips, and that he explained to the other officers already present that the

purpose of the roadblock was to check for drivers’ licenses. Despite having “supervisory” authority

over the operation of the roadblock, Lieutenant Hill testified that he was unaware that the other

officers on the scene were not following the specific requirements of General Order 410; that he did

not know why the Red Bank or Chattanooga officers were present or who called them; and that he

was unaware of the actions of certain officers questioning drivers about the “North Chattanooga

rapist.” Lieutenant Hill also confirmed that he did not participate in the appellant’s stop or arrest.

After hearing the testimony, the trial court granted the appellant’s motion to suppress. The

State appealed to the Court of Criminal Appeals, which reversed the trial court’s decision. The

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intermediate court held that drivers’ license roadblocks are generally permissible under the

Tennessee Constitution, and a majority of the court further held that the particular roadblock at issue

in this case was operated in a reasonable manner. In dissent, Judge Tipton wrote that because an

officer other than a state trooper stopped the appellant’s car, the drivers’ license checkpoint was

statutorily illegal. He further reasoned that because the statute represented a legislative declaration

that such stops were unreasonable, the trial court’s suppression of the evidence should be affirmed.

The appellant then requested permission to appeal to this Court, which we granted, on the

following three issues: (1) whether drivers’ license roadblocks are unconstitutional per se; (2)

whether the roadblock in this case was unconstitutional for its failure to follow the guidelines

established by our decision in State v. Downey, 945 S.W.2d 102 (Tenn. 1997); and (3) whether the

roadblock was unlawful because of its delegation of statutory authority to local police officers to stop

motorists for a license check.1 We hold that the State has failed to establish a sufficiently compelling

interest justifying the need to maintain drivers’ license roadblocks and that the particular roadblock

in this case failed to comply with the standards set forth in Downey. The judgment of the Court of

Criminal Appeals is reversed.

STANDARD OF APPELLATE REVIEW

When reviewing a trial court’s findings of fact and conclusions of law on a motion to

suppress evidence, we are guided by the standard of review set forth in State v. Odom, 928 S.W.2d

18 (Tenn. 1996). Under this standard, “a trial court’s findings of fact in a suppression hearing will

be upheld unless the evidence preponderates otherwise.” Id. at 23. However, when the trial court

does not set forth its findings of fact upon the record of the proceedings, we will decide on our own

where the preponderance of the evidence lies. Fields v. State, 40 S.W.3d 450, 457 n.5 (Tenn. 2001);

see also Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997). As in all cases on appeal, “the

prevailing party in the trial court is afforded the ‘strongest legitimate view of the evidence and all

reasonable and legitimate inferences that may be drawn from that evidence.’” See State v. Carter,

16 S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)).

Finally, we review the trial court’s conclusions of law under a de novo standard without according

any presumption of correctness to those conclusions. See, e.g., State v. Walton, 41 S.W.3d 75, 81

(Tenn. 2001); State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999).

1

We also granted permission to appeal to decide whether Tennessee Code Annotated sections 55-50-351(a)

and 40-7-1 03(c) are uncon stitutional because they allow officers of the Tennessee Highway Patrol to randomly stop

motorists to check d rivers’ licens es. We ag ree with the Court of Criminal Appeals in this case that the decision of the

United States Supreme Court in Delaware v . Prouse, 440 U.S. 648 (1979), and our opinion in Robertso n v. State , 184

Tenn. 277, 19 8 S.W.2 d 633 (1 947), see m to sub stantially undermine the constitutional propriety of these two statutes.

See also State v. McCulloch, 906 S.W.2d 3, 5 (Tenn. Crim. App. 1995) (“[I]t is well established that baseless random

vehicle stops for the mere p urpose o f checkin g license an d registration inform ation are im permissib le under b oth state

and federal law.”). Nevertheless, because this issue was not raised in either of the lower courts, we decline to f ully

address it here. Mo reover, ap plication o f the plain er ror doctrin e is not app ropriate in this case because construction

of these statutes is not necessary to accomplish substantial justice—this case does not involve random stops by officers

of the Te nnessee H ighway Patrol. See State v. Sm ith, 24 S.W.3d 274, 282 (Tenn. 2000).

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ANALYSIS

The Fourth Amendment to the United States Constitution provides that “[t]he right of the

people to be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated . . . .” Article I, section 7 of the Tennessee Constitution similarly

prohibits unreasonable searches and seizures, and we have long held that this provision is identical

in intent and purpose with the Fourth Amendment. See, e.g., State v. Binette, 33 S.W.3d 215, 218

(Tenn. 2000); State v. Vineyard, 958 S.W.2d 730, 733 (Tenn. 1997). When examining the scope and

application of the prohibition against unreasonable searches and seizures, we must be cognizant that

the essence of this protection “is to ‘safeguard the privacy and security of individuals against

arbitrary invasions of government officials.’” Downey, 945 S.W.2d at 106 (quoting Camara v.

Municipal Court, 387 U.S. 523, 528 (1967)).

“Without question, the temporary detention of individuals during the stop of a vehicle by

police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ which

implicates the protection of both the state and federal constitutional provisions.” Vineyard, 958

S.W.2d at 734; State v. Yeargan, 958 S.W.2d 626, 631 (Tenn. 1997). When an officer stops a

motorist with probable cause or reasonable suspicion to believe that unlawful conduct has occurred,

the stop is generally considered constitutionally reasonable under both the Fourth Amendment and

Article I, section 7. Vineyard, 958 S.W.2d at 734. On the other hand, when an officer lacks even

reasonable suspicion that criminal activity has taken place, his or her law enforcement authority “is

limited to informal questioning of the persons involved.” State v. Crutcher, 989 S.W.2d 295, 300

(Tenn. 1999); see also State v. Daniel, 12 S.W.3d 420, 425 (Tenn. 2000).

In one limited circumstance, however, this Court has permitted officers to stop and detain

a vehicle without even a modicum of suspicion of unlawful conduct. In State v. Downey, 945

S.W.2d 102 (Tenn. 1997), this Court held that officers may stop motorists at a roadblock to detect

drivers operating under the influence of alcohol, even though the conduct of the motorists was

otherwise “ordinary, innocent, and free from suspicion.” We acknowledged that this holding was

“a departure” from the fundamental requirement that no seizure may occur without at least “a

founded suspicion based on articulable facts that the person is or has engaged in criminal activity.”

Id. at 104. Nevertheless, we concluded that a sobriety roadblock may be constitutionally reasonable

so long as “an individual’s reasonable expectation of privacy is not subject to arbitrary invasions

solely at the unfettered discretion of officers in the field, and the seizure is carried out pursuant to

a plan embodying explicit, neutral limitations on the conduct of individual officers.” Id. at 110.

Accordingly, the essential questions to be resolved in this case are whether the roadblock at issue

was permissible in light of Article I, section 7 of the Tennessee Constitution, our decision in

Downey, and various protections afforded by statute.

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I. IMPROPER DELEGATION OF STATE HIGHWAY PATROL

AUTHORITY TO LOCAL POLICE OFFICERS

Because courts should not generally decide constitutional issues if the case may be properly

resolved on nonconstitutional grounds, see State v. Burdin, 924 S.W.2d 82, 87 (Tenn. 1996); Owens

v. State, 908 S.W.2d 923, 926 (Tenn. 1995), we first address whether the evidence in this case

should have been suppressed because local police officers unlawfully stopped motorists to check

drivers’ licenses and vehicle registrations. Tennessee Code Annotated section 55-50-351(a) provides

that

[I]t is unlawful for any law enforcement officer of this state, except a state patrol

officer or officer of the department, to demand the exhibition of such [drivers’]

licenses, unless the operator of the motor vehicle is then engaged in, or immediately

prior to such demand has been engaged in, a violation of any municipal ordinance or

statute law of this state.

In addition, Tennessee Code Annotated section 40-7-103(c) (1997) provides that no officer “except

members of the Tennessee highway patrol acting pursuant to [section] 4-7-104, shall have the

authority to stop a motor vehicle for the sole purpose of examining or checking the operator’s license

of the driver of such vehicle.” Citing both of these statutes, the appellant argues that the roadblock

in this case was statutorily illegal because officers other than those with the Tennessee Highway

Patrol actually stopped his car and requested to see his operator’s license.

A majority of the intermediate court found that these statutes conflicted with Tennessee Code

Annotated section 55-50-804 (1998), which requires a driver to display his or her license “upon

demand of any officer or agent of the department or any police officer of the state, county or

municipality . . . .” The majority then held that the conflict between section 55-50-804 and the

statutes cited by the appellant should be resolved in favor of the former because it was the last in

time to be enacted. Writing in dissent, Judge Tipton opined that the statutes cited by the appellant

have not been superseded by section 55-50-804 because all three statutes can be harmoniously

construed to permit local officers to request an operator’s license, so long as those same officers do

not initiate the stop in order to do so.

We disagree with the majority of the Court of Criminal Appeals in so far as it found an

irreconcilable conflict between these statutes. The legislature is always presumed to know of its

prior enactments, see, e.g., State v. Levandowski, 955 S.W.2d 603, 604 (Tenn. 1997), and

consequently, courts should find repeals by implication only when statutes cannot be construed

harmoniously, see, e.g., Cronin v. Howe, 906 S.W.2d 910, 912 (Tenn. 1995). In this case, the

various statutes can be reasonably construed so as to give effect to each, and we find no need to

resort to the “last-in-time” canon of construction to resolve a supposed conflict.

Section 55-50-804 does not address the ability of officers to initiate a stop of a motor vehicle

to conduct a license check, but it speaks only to the general authority of officers to request a driver

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to display his or her license. On the other hand, sections 55-50-351(a) and 40-7-103(c) are quite

emphatic that only state highway patrol officers possess the authority to initiate the stop of a vehicle

for this purpose, and these two statutes do not speak to whether other officers may request a license

after a stop has been initiated. Consequently, we agree with Judge Tipton that the legislature

probably intended for section 55-50-804 to apply only to motorists that have already been stopped

for a violation of the law. Assuming this to be the case, then, the roadblock at issue here was in clear

violation of sections 55-50-351(a) and 40-7-103(c) because the record unequivocally shows that the

appellant’s stop was initiated by local police officers.

However, our finding that the roadblock in this case was operated contrary to statutory

requirements does not necessarily resolve the issue of whether the evidence seized as a result of this

roadblock should be suppressed. Importantly, suppression of evidence is not required if the statutory

violation does not actually infringe upon a specific constitutional protection or guarantee. See

Walton, 41 S.W.3d at 93. Judge Tipton believed that because the statutes represented a legislative

declaration that seizures contrary to the statute were unreasonable, the violation of sections 55-50-

351(a) and 40-7-103(c) warranted suppression of the evidence obtained from the roadblock. While

this view may have possessed some merit at the time that Judge Tipton penned his dissent, we are

reluctant to adopt a similar holding today. Since the time that this case was pending before the

intermediate court, the legislature has amended section 55-50-351(a) to permit “any police officer

of the state, county, or municipality” to request display of drivers’ licenses. See 2001 Tenn. Pub.

Acts ch. 700, § 12 (effective July 1, 2001). Accordingly, any legislative declaration in this regard

must be weighed in favor of approving the stop.

Moreover, we have found no authority for holding that the employment status of the officer

requesting to see the license may alone be determinative of the constitutional reasonableness of the

seizure. Instead, the statutory violation appears relevant only to the extent that it, along with other

factors, contributes to finding an unreasonable intrusion on the liberty and privacy of motorists.

Therefore, because resolution of this statutory issue does not lead to a full and proper resolution of

the case, we must address the constitutionality of the roadblock itself.

II. CONSTITUTIONALITY OF THIS ROADBLOCK UNDER ARTICLE I,

SECTION 7 OF THE TENNESSEE CONSTITUTION

Our decision in State v. Downey did not address the constitutional propriety of roadblocks

for purposes other than to detect motorists driving under the influence of alcohol. Recognizing this

fact, the appellant has urged this Court to find that roadblocks established for the sole purpose of

checking drivers’ licenses and vehicle registration are unconstitutional per se under the federal and

state constitutions. Although the United States Supreme Court has never expressly held that drivers’

license roadblocks are constitutionally permissible under the Fourth Amendment, it has suggested

that such may be the case upon a proper showing. For example, in Delaware v. Prouse, 440 U.S.

648, 663 (1979), the United States Supreme Court held that motorists could not be randomly stopped

by officers checking for drivers’ licenses or vehicle registration, but it noted that the questioning of

all motorists at a roadblock could be one “possible alternative.” The Court has also acknowledged

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this view, albeit in dicta, in at least two cases since Prouse. See City of Indianapolis v. Edmond, 531

U.S. 32, 39-40 (2000); Texas v. Brown, 460 U.S. 730, 739 (1983) (plurality opinion).

Nevertheless, the issue of whether a drivers’ license roadblock is constitutionally permissible

under the Tennessee Constitution has not been decided by this Court. We acknowledged in Downey

that although federal cases interpreting the Fourth Amendment are “particularly persuasive”

authority for construing Article I, section 7, the Tennessee Constitution can provide greater

protection for its citizens against unreasonable searches and seizures. See 945 S.W.2d at 106.

Accordingly, in analyzing the constitutionality of roadblocks under Article I, section 7, we adopted

the test similar to that established in Brown v. Texas, 443 U.S. 47 (1979), which generally analyzes

the reasonableness of seizures that are less intrusive than full arrest. See id. at 110. As applied by

Downey to roadblocks, this test examines three factors: (1) the gravity of the public concerns served

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

severity of the roadblock’s interference with an individual’s liberty or privacy. See id. at 107-08;

cf. Brown, 443 U.S. at 50-51; Michigan v. Sitz, 496 U.S. 444, 450 (1990).

We reaffirm that the test adopted in Downey is to be applied in all cases involving

constitutional challenges to roadblocks or checkpoints under the Tennessee Constitution. Although

the Court of Criminal Appeals analyzed the issues in this case as constituting “per se” and “as

applied” challenges, Downey made no such constitutional distinctions. It may be true that when the

State cannot identify a sufficiently grave public concern justifying a roadblock, the roadblock could

be characterized as being unconstitutional “per se.” It may also be true that when a roadblock

exhibits an unreasonable level of intrusion on liberty or privacy, it may be characterized as being

unconstitutional “as applied.” However, these characterizations encourage analysis outside of the

test adopted in Downey, and this analysis creates a heightened danger that constitutional standards

will not be uniformly and consistently applied. Accordingly, we decline to address the arguments

in terms of unconstitutionality “per se” and “as applied” and instead continue to determine the

reasonableness of this roadblock by using the three-pronged test as set forth in Downey.

A. THE GRAVITY OF THE PUBLIC CONCERN

SERVED BY THE ROADBLOCK

With respect to the gravity of the public concerns served by drivers’ license roadblocks, we

must first identify the state interest in maintaining such roadblocks and then determine whether this

interest is sufficiently compelling to abrogate constitutional protections against suspicionless stops.

The presence of a sufficiently compelling state interest justifying a warrantless seizure at a

checkpoint is an important, if not essential, factor going to the overall constitutional reasonableness

of any such stop. The need and importance of this factor were acknowledged in Downey, which

devoted considerable attention to examining whether the State possessed a sufficiently “compelling”

interest in maintaining sobriety checkpoints.

Moreover, persuasive authority for initially requiring the presence of a sufficiently

compelling state interest can be found in other cases decided since Downey’s release, perhaps most

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notably the recent decision from the United States Supreme Court in City of Indianapolis v. Edmond.

In that case, the Court held a roadblock unconstitutional solely because its primary purpose

“contravene[d] the Fourth Amendment.” See 531 U.S. at 42. Therefore, we believe that critical

examination of the nature and presence of the state interest involved is an important and essential

factor in ascertaining the reasonableness of any roadblock. As such, we first undertake a careful

study of the State’s asserted interest in this case and of the proof in the record to support the presence

of this interest.

THE NATURE OF THE STATE’S INTEREST

The nature of the State’s interest in this case is easily identified because the State has

consistently argued that this roadblock was established only as a checkpoint to ensure highway safety

by detecting and deterring unlicensed drivers. While some evidence admittedly exists to the contrary

as to the true purpose of this particular roadblock, we will presume for sake of the present analysis

that the State’s interest is as asserted. Therefore, the essential inquiry here is whether the State’s

asserted interest is sufficiently compelling so as to justify suspicionless stops at a roadblock.

With respect to the sufficiently compelling nature of this interest, we acknowledge that we

gave no specific indication in Downey of when a State interest becomes sufficiently compelling so

as to justify suspicionless seizures at a checkpoint. However, it is clear from the analysis of that

opinion that the State’s interest in detecting and deterring drivers under the influence of alcohol was

sufficiently compelling for three reasons: (1) the State’s interest in maintaining the roadblock was

directly tied to the ability of drivers to safely operate motor vehicles on the roads and highways of

the state; (2) the harm sought to be eliminated by the roadblock was one that posed an imminent

danger of death or serious bodily injury; and (3) the magnitude of the problem, coupled with its

harm, was such that it commanded heightened action.2 When the purpose for a roadblock is arguably

related to maintaining highway safety, we believe that these standards as set forth in Downey are

sound, and we therefore require a similar showing in this case. Although these standards do not

necessarily comprise the sine qua non of a sufficiently compelling state interest when the roadblock

is arguably related to highway safety, any additional considerations justifying suspicionless stops of

an automobile should be related in kind.3

2

In suppo rt of the com pelling na ture of the in terest at stake in Downey , we found th at the State’s interest in

detecting and deterring drunk d rivers wa s directly tied to highw ay safety because operation of vehicles while under the

influence of alcohol had resulted in more deaths and injuries “than from all the wars this country has fought.” In support

of the sheer magnitude of the DUI problem, the Court noted the “overwhelming” statistical evidence of the problem,

the fact that the legislature has increased the penalties for DUI “at nearly every session,” and anecdotal evidence from

daily new spaper an d television accoun ts of the “car nage an d tragedy ” of drun k driving .

3

This required showing ap plies o n ly to s us pic ionle ss stops at inves tiga tory, non-e mergenc y roadbloc ks. We

do not address the required showing for other checkpoints, such as those established for apprehending fleeing felons

or for fixed we igh-and-inspe ction stations.

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The concurring-dissenting opinion authored by Justice Drowota asserts that by requiring

specific proof of the presence of the State’s compelling interest, we are somehow being unfaithful

to the test adopted in Downey. Indeed, the concurring-dissenting opinion takes the position that

while the importance of the State’s interest will affect the “weighing process,” no case has required

the State to first possess a compelling interest before examining the other aspects of the roadblock.

In essence, the concurring-dissenting opinion asserts that the absence of a sufficiently compelling

interest may be offset by minimal police intrusion into the personal liberty and privacy of the

motorists. We do not agree.

In asserting that no case has ever required the State to initially set forth a sufficiently

compelling interest, the concurring-dissenting opinion overlooks the fact that identifying a separate

and distinct state interest with regard to Article I, section 7 was key to Downey itself. See 945

S.W.2d at 109-10. It is true that Downey did not dwell upon the importance of the State’s interest

in curbing incidents of DUI, but unlike the asserted interest in this case, the compelling nature of the

interest in Downey was already abundantly clear from the proof as identified by the Court. As such,

the Court instead focused its opinion on whether the roadblock’s intrusion into personal liberty and

privacy was too severe. The Court’s primary focus on the severity of the intrusion, however, should

not be construed as minimizing the need to identify and prove a sufficiently compelling interest in

the first instance. Importantly, the Downey Court’s discussion of the standards to minimize intrusion

and limit discretion occurred only after the Court first “recognize[d] the State’s compelling interest

in detecting and deterring motorists who drive while under the influence of alcohol.” 945 S.W.2d

at 110.

Moreover, the concurring-dissenting opinion makes no mention in this regard of the United

States Supreme Court’s recent decision to the contrary in Edmond. In that case, the Court held a

roadblock invalid solely because the asserted interest—general crime detection—was an

“impermissible purpose” under Fourth Amendment analysis. See 512 U.S. at 47. Notably, the Court

did not further examine the issue of whether the roadblock was established with minimal intrusions

into the liberty and privacy of the motorists, but it instead affirmed that “a program driven by an

impermissible purpose may be proscribed while a program impelled by licit purposes is permitted,

even though the challenged conduct may be outwardly similar.” Id. To be clear, then, as far as the

Fourth Amendment is concerned, the inquiry of whether a sufficiently compelling interest exists in

the first instance is a separate, and independent, inquiry from whether the level of police intrusion

into liberty and privacy is minimal.

Both Downey and Edmond are quite persuasive authorities for the view that a roadblock will

necessarily fail constitutional examination if it lacks a sufficiently compelling state interest. As such,

contrary to the conclusion reached by the concurring-dissenting opinion, we conclude that the

presence of a sufficiently compelling interest is necessary under Article I, section 7 before an

examination of the other aspects of a roadblock may proceed.

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PROOF SUPPORTING THE STATE’S INTEREST IN THIS CASE

Turning to the proof in this case, we find that despite the State’s argument that drivers’

license roadblocks are necessary to ensure the safety of motorists on the roads, no evidence in the

record establishes this fact or, even if true, establishes that this interest is sufficiently compelling to

justify suspicionless stops. Precisely because a roadblock “is a departure from [the] fundamental

principles” contained in Article I, section 7 that a seizure must be accompanied by at least some

measure of individualized suspicion, Downey, 945 S.W.2d at 104, we will not presume the presence

of a compelling state interest to justify further expanding the scope of permissive suspicionless

seizures. As we have noted before in other cases, a warrantless seizure “‘is presumed unreasonable,

and evidence discovered as a result thereof is subject to suppression, unless the State demonstrates

that the search or seizure was conducted pursuant to one of the narrowly defined exceptions to the

warrant requirement.’” State v. Bridges, 963 S.W.2d 487, 490 (Tenn. 1997); State v. Crutcher, 989

S.W.2d 295, 299-300 (Tenn. 1999).

Because the exceptions to the warrant requirement “are jealously and carefully drawn,” the

State must show that “the exigencies of the situation made the search [or seizure] imperative.” State

v. Bartram, 925 S.W.2d 227, 230 (Tenn. 1996) (emphasis added and internal quotations omitted).

Therefore, as required in Downey, the State 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 may courts find that the State has a sufficiently compelling interest

to justify maintaining drivers’ license roadblocks.

We are not unaware of the fact that some decisions from the Court of Criminal Appeals

appear to have approved of drivers’ license roadblocks after finding that the State possesses

“significant” and “legitimate” interests in regulating vehicles and drivers on state highways.4 We

agree that the State possesses valid and important interests in this respect, but because the State has

the burden of establishing the reasonableness of the seizure, one may not merely presume that these

interests are sufficiently compelling to justify abrogating constitutional guarantees. Only when the

State 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.

Using a rationale similar to that sometimes adopted by the intermediate court, the concurring-

dissenting opinion in this case opines that the State possesses a “vital” interest in maintaining

drivers’ license roadblocks sufficient to permit suspicionless stops. More specifically, the

4

See, e.g., State v. Steward, No. M1999-01284-CCA-R3-CD, 2000 W L 1246436 (Tenn. Crim. App. filed at

Nashv ille, Aug. 1 8, 2000 ); State v. Hagy, No. 03C01-9505-CR-00152, 1995 WL 712355, (Tenn. Crim. App. filed at

Knox ville, Dec. 5 , 1995).

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concurring-dissenting opinion presumes that such roadblocks are urgently needed because (1)

persons too young to drive pose a threat to public safety, and (2) persons who have had their licenses

suspended for DUI convictions or traffic offenses often disregard that suspension, thereby

endangering public safety on the roads. We do not disagree that such concerns may be present, and

if these concerns demonstrate a real need to curb a substantial and imminent threat to the safety of

motorists on public roads, which distinctly results from the conduct of these unlicensed drivers, then

the first prong of the Downey test will have been satisfied. Indeed, it is for these reasons, and

perhaps some others, that we have clarified the State’s burden of proving the presence of these

concerns in future cases.

To be sure, however, the record in this case contains absolutely no proof of the urgent

necessities identified by the concurring-dissenting opinion, and mere suspicions and conjectures of

the possibilities of such dangers are never adequate to justify abrogation of constitutional liberties.

History has demonstrated that the infinite faculties of mankind are such that one may devise any

supposed danger or peril to justify further erosion of constitutionally protected liberties. If these

factually unsupported suppositions could justify further abrogation of the warrant requirement of

Article I, section 7, then every protection now guaranteed by this important provision would be

subject to the irrational assault of pretended evils certain to follow. Merely declaring that the interest

exists in theory is not the same as demonstrating that the need exists in fact.

Furthermore, by alleviating the State’s burden of production regarding its compelling interest,

the concurring-dissenting opinion essentially places the burden on the defendant to retain his or her

constitutional protections under Article I, section 7 by disputing the State’s presumed interest. This

Court has always required the State to bring forth evidence to demonstrate the propriety of a

warrantless search. By presuming the presence of a sufficiently compelling interest without proof

in the record of any real dangers involved, the concurring-dissenting opinion takes a perilous step

in a path that shifts the burden of proof to the defendant to show the lack of a sufficiently compelling

interest justifying a warrantless seizure. If other courts have taken similar paths as the concurring-

dissenting opinion has attested, Article I, section 7 demands that we take the road less traveled.

Finally, the concurring-dissenting opinion expresses the concern that the requirements for

establishing the presence of a sufficiently compelling state interest are too burdensome. These

requirements are precisely those demanded by Downey itself, and the extent of the burden is neither

more nor less than was required by that case. Indeed, while the burden to be carried by the State may

be heavy, one may legitimately question what purpose is served by abrogating Downey when the

label of the roadblock is changed. Just as the Court looked to proof of a sufficiently compelling

interest in Downey to justify sobriety checkpoints, we must also demand similar proof to justify

drivers’ license checkpoints.

However, while we will not presume that proof exists supporting the presence of a

sufficiently compelling state interest, we are also unwilling to adopt the views of Chief Justice

Anderson and hold that such evidence cannot exist either. The concurring opinion authored by the

Chief Justice correctly asserts that “the possession of a drivers’ license does not necessarily assure

-11-

the safety and fitness of any motorist.” However, the concurring opinion then asserts that no such

proof could ever exist, because “there is no basis upon which to reasonably conclude that a motorist

who is not in possession [of] a valid drivers’ license necessarily poses an immediate danger of death

or serious bodily injury great enough to warrant the suspicionless stops of all drivers at a

checkpoint.” (emphasis in original).

We are reluctant to hold today, as would the concurring opinion, that the lack of proof in this

record conclusively demonstrates that the State has no sufficiently compelling interest in establishing

a drivers’ license roadblock. Rather, the lack of evidence in this record stems more from the fact that

the State has not had a meaningful opportunity to develop the record in this regard. Hicks did not

specifically assert the lack of a sufficiently compelling state interest in support of his original motion

to suppress, and the trial judge apparently did not consider this issue in granting the defendant’s

motion. Indeed, this issue was not squarely presented in any court until Hicks raised it for the first

time as appellee in the Court of Criminal Appeals.

Given the procedural history of this case, we disagree that the State had a meaningful

opportunity to introduce proof of its interest in maintaining drivers’ license roadblocks. Importantly,

both this Court and the Court of Criminal Appeals possess appellate jurisdiction only, and our ability

to receive and hear evidence not presented in the trial court is severely restricted. See Duncan v.

Duncan, 672 S.W.2d 765, 768 (Tenn. 1984); see also Tenn. R. App. P. 14. As such, we disagree that

a party is necessarily afforded a meaningful opportunity to present evidence and be heard merely

because an issue has been raised and determined in the appellate courts. Because our concern should

always be to ensure that litigants are fully and fairly heard before their interests are adjudicated,

prudence dictates that the State be given a meaningful opportunity to present evidence of its claims

before its interests are conclusively determined.

Had the motion to suppress squarely put the State on notice of its need to present evidence

to show a sufficiently compelling interest to justify stopping motorists lawfully traveling along the

highways of this state, and had the State under those circumstances failed to present such evidence,

then we would not hesitate to agree with the conclusion reached by the Chief Justice. However,

because our review of the record indicates that the issue was not pleaded or tried during the hearing

on the motion to suppress, the prudent and reasonable path is for this Court to rule upon the record

as developed in this case and not to foreclose the possibility that the State can establish a sufficiently

compelling interest in future cases.

In demonstrating this sufficiently compelling state interest in these future cases, however,

we emphasize that the State 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 State’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 State establish

-12-

a roadblock merely “to detect evidence of ordinary criminal wrongdoing.” Edmond, 531 U.S. at 41.

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.” Id.

at 47. Therefore, unlike many of our sister states, this Court will not presume the existence of a

compelling interest until the State 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.5

Moreover, we also emphasize that the State 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 State’s interest in enforcing a drivers’ license law is any greater

than its interest in enforcing any other law, and indeed, the State’s interest in enforcing other

criminal laws is at least as great as it is in enforcing laws regulating drivers’ licenses. If the State

may not legitimately establish roadblocks to detect other violations, it follows that the State may not

do so merely to enforce drivers’ license laws. Therefore, to justify suspicionless stops in this

context, the State 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.

Accordingly, because the record has not been sufficiently developed in this case for this

Court to make a definitive determination as to the compelling nature of the State interest involved,

we cannot find that the State has demonstrated a sufficiently grave public concern so as to warrant

further expansion of the roadblock exception under the Article I, section 7. While we do not

foreclose the possibility that the State could assert a compelling interest in future cases concerning

the need to establish drivers’ license roadblocks, the absence of any such evidence in this case must

weigh very heavily against, if not be fatal to, finding the roadblock at issue here constitutionally

reasonable.

5

We note, as does the opinion authored by Justice Drowota, that many federal and state cases interpreting the

Fourth Ame ndme nt have fo und tha t the state ma y possess in terests adeq uate to establish drivers’ license road blocks,

though these cases uniformly reach this conclusion withou t the bene fit of specific guidelines or requirements of proof.

The concurring-dissenting opinion suggests that the showing required by this case is greater than that required by the

Fourth Amendment, and it is apparently “puzzled” by our decision to closely adhere to Downey when d oing so c ould

result in the T ennessee Constitutio n grantin g greater p rotections to its citizens than would the Four th Am endm ent.

Although the conc urring-d issenting o pinion co rrectly po stulates that A rticle I, section 7 is “identical in purpo se

and intent” with the Fourth Amendment, it overlooks the fact that such identity of intent and purpose “does not

necessarily correlate to coextensive degrees of protection. In fact, this Court’s decisions applying the state constitution

have been somewhat more restrictive than comparable federal cases in some search and seizure contexts.” Planned

Parenthood v. Sundqu ist, 38 S.W.3d 1, 13 (Tenn. 2000) (Drowota, J., concurring in judgment) (internal quotation marks

omitted). Therefore, if following prior state constitutional precedent has the incidental effect of compelling a decision

that is not necessarily warranted by federal law, we believe it to be required by Article I, section 7. To be clear,

however, our decision today is grounded solely in Article I, section 7 and flows from our decision in Downey. Any

federal cases cited as authority for our interpretation of Article I, section 7 are used only for the purpose of guidance

and do not them selves com pel the resu lt reached today. See Michigan v. Long, 463 U.S. 1032, 1041 (1983).

-13-

B. THE DEGREE TO WHICH THE PUBLIC CONCERN IS

FURTHERED BY THE SEIZURE

In addition to requiring a sufficiently compelling state interest, our decision in Downey also

required an examination of the degree to which the presence of the roadblock advances that

compelling state interest. In Prouse, the United States Supreme Court stated that any type of

suspicionless seizure must promote the asserted state interest in a “sufficiently productive” fashion

before it could “qualify as a reasonable law enforcement practice.” 440 U.S. at 660. We recognized

this principle in Downey, although we noted that courts should generally refrain from analyzing

whether other constitutionally reasonable measures are more effective in accomplishing the state’s

interest. 945 S.W.2d at 108-09. Accordingly, this second prong of the Downey test may be satisfied

when one can fairly say that roadblocks contribute in a meaningful way to achieving the sufficiently

compelling state interest.

The State did not introduce any evidence at the suppression hearing to establish the presence

of this factor. From our own review of the record, we note that the roadblock at issue here, which

was conducted over a two-night period, did not uncover a single driver who was operating a vehicle

without a valid license. Although the failure to detect any unlicensed drivers could be theoretically

attributable to the deterrence provided by the roadblock, we seriously doubt that such was the case

here because no advanced publicity of the roadblock was given to the public at large. As we

recognized in Downey, the need to deter certain types of conduct can justify a roadblock even when

the evidence otherwise suggests that the particular roadblock is ineffective in detecting the object

of its operation. However, before motorists can be reasonably deterred by roadblocks, they must

first be aware that they are likely to encounter such roadblocks, and advanced publicity is one key

to ensuring this awareness. Cf. State v. Hooper, 29 S.W.3d 1, 11 (Tenn. 2000) (discussing publicity

and public knowledge as a key factor in deterrence philosophy).6 Therefore, so long as the State

chooses to rely on deterrence as a rationale supporting any roadblock, we reiterate that advance

publicity of the roadblock may be essential, and in those cases where this factor is absent, the State’s

ability to rely upon deterrence to justify the stops is correspondingly diminished.

We also find no evidence in the record from which one could infer that the complete

ineffectiveness of this roadblock in detecting unlicensed drivers was somewhat of an anomaly. For

example, no proof exists that the time and site of this roadblock were chosen because of their

6

It may be supposed by some that drivers would be deterred by the chance of encountering unpublicized

roadblocks. Even if true, it cannot be doubted that deterrence is always enhanced by publicity and public knowledge

of the roadblocks. Therefore, to the extent that the State relies upon deterrence as a justification for ro adblocks, it mu st

take some measures to ensure that deterrence is actually accomplished. Cf. State v. Ga rcia, 500 N.E.2d 158, 162 (Ind.

1986) (“[T]he deterrent effect of such a highly publicized program is obvious; such a visible project is bound to increa se

the perceived risk of arrest in the minds of those drunk drivers who are never arrested.” (citing Lowe v. Com monw ealth,

337 S.E.2d 273, 277 (Va. 1985)) ); People v. Bartley, 486 N.E.2d 880, 888 (Ill. 1985) (“In fact, if a major goal of a

roadblock searching for drunken drivers is deterrence, that goal is promoted by publicity. The more aware drivers are

that they m ay be stop ped at suc h a road block, the more lik ely they will b e to seek alternate means of transportation when

they are drinking or to refrain from drinking when they know they w ill be driving.”).

-14-

effectiveness in detecting and deterring unlicensed drivers. The State introduced no proof that

unlicensed drivers are particularly likely to be driving during the times that these roadblocks were

in operation, i.e., between 12:00 a.m. and 4:00 a.m., and we doubt that this fact is even supported

by anecdotal evidence in a manner similar to that supporting drunk drivers. Nor did the State

introduce evidence that the site of the roadblock was chosen because of the particularly high volume

of traffic or numerous incidents of unlicensed drivers. Cf. Ingersoll v. Palmer, 743 P.2d 1299, 1315

(Cal. 1987). To be clear, these factors are not required to demonstrate that the checkpoint

contributes in a meaningful way to achieving the compelling state interest. Nevertheless, to the

extent that these factors are considered by law enforcement officers or are otherwise apparent on the

face of the record, the questionable effectiveness of an individual roadblock may be mitigated.7

We cannot find a roadblock to be constitutionally reasonable unless the State first

demonstrates some meaningful link between its establishment and the achievement of its compelling

interest. Because the record in this case contains no such evidence, we cannot fairly conclude that

the roadblock in this case meaningfully contributed to achieving the state’s interest in detecting and

deterring unlicensed drivers. Taking issue with this conclusion, the concurring-dissenting opinion

asserts that the second prong of the Downey test is met in this case because “there is no better way”

of detecting unlicensed drivers than through roadblocks. Assuming this fact to be true, we note that

the lack of other effective alternatives does not alone bestow the blessing of constitutional

reasonableness upon an otherwise totally ineffective roadblock. Whatever else may be said of the

presence of viable alternatives, it is clear that the roadblock must promote the asserted state interest

in a “sufficiently productive” fashion before it can “qualify as a reasonable law enforcement

practice.” Cf. Prouse, 440 U.S. at 660.8 Therefore, the absence of this proof must also weigh

heavily against finding that the roadblock here was constitutionally reasonable.

7

Indeed, the peculiar time of this “drivers’ license” checkpoint and its seemingly remote location could be

factors that give rise to a findin g that its prim ary purp ose was n ot to detect u nlicensed drivers. Cf. State v. Stearns, 524

S.E.2d 554, 556 (Ga. Ct. App. 1999) (“A valid purpose of roadblocks is to locate and arrest those who are abusing the

privilege of driving on pub lic roads by driving w hile they ar e intoxicate d. . . . It is not unreasonable that such

roadblocks would be located where such drivers would be expected to be at a time they might b e expec ted to be there.”).

By introducing some proof that unlicensed drivers are particularly likely to drive at this time of night or in this location,

the State minimizes the risk that a court will find an administrative subterfuge or that the primary purpose of the

roadblo ck is not su fficiently co mpelling to justify the su spicionless s tops.

8

Indeed, the concurring-dissenting opinion seems to beg the question of reasonableness in this regard. By

overlooking the ineffectiveness of the roadblock in this case, the concurring-dissenting opinion assumes that the

roadblock is a reasonable intrusion because there is “no better way” of de tecting unlicensed d rivers. Howev er, because

a seizure cannot be constitu tionally rea sonable if it is ineffective in achievin g the state interest invo lved, cf. Prouse , 440

U.S. at 660, the effectiveness of a roadblock is an important measure of its constitutional reasonableness. Therefore,

we disagree that the presence or lack of other alternatives should be of any great concern. Although we will not cho ose

among various “reasona ble law enforcement approaches,” Downey , 945 S.W.2d at 110 (em phasis added), we will not

abdicate our responsib ility to determ ine wha t is reasonable in the first instance merely because “no better way” has been

found.

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C. INTRUSIVENESS OF THE ROADBLOCK AT ISSUE IN THIS CASE

Regarding the severity of the interference with personal liberty and privacy, we have held

that 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.” Downey, 945 S.W.2d at 104. To this end, our 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. Although the absence of any

one of these factors does not necessarily invalidate a roadblock, they each weigh heavily in

determining the overall reasonableness of the checkpoint. Id. at 110-12 passim.

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

limitations upon the discretion of the officers in the field. 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. In all cases, therefore, the State must show that some authority superior to the

officers in the field decided to establish the roadblock, particularly as to its time and location, and

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

regulation. See id. passim. To be clear, these factors are so essential to a reasonable roadblock that

the absence of either of them will necessarily result in the invalidation of the stops.

FACTORS MINIMIZING THE RISK OF ARBITRARY INTRUSION

Applying these criteria to the roadblock in this case, we initially find that the roadblock

lacked many of the attributes necessary to minimize the risk of arbitrary intrusion into the personal

liberty and privacy of the motorists. Consistent with Article I, section 7, the officers did wear

official uniforms, and the officers had one marked patrol car at each end of the roadblock with

flashing emergency lights. However, contrary to our decision in Downey, the roadblock was

operated with little regard to the safety of the approaching motorists. Although the roadblock was

conducted at night, the record shows that the officers did not use any lighting separate from the

patrol cars, and it appears that the officers could safely stop cars only on one side of the road.

Further contrary to Downey, the officers placed no advanced warning signs giving approaching

motorists notice of the upcoming roadblock. Not only is this requirement especially important to

ensure the safety of motorists, but the presence of advanced warning signs also “reassure[s] motorists

that the stop is duly authorized,” thereby diminishing the possibility of surprise, concern, or fright.

See Ingersoll, 743 P.2d at 1316. Although the Constitution does not require all of these specific

-16-

measures, we cannot conceive of a reasonable roadblock that fails to adequately protect the safety

of the passing motorists.

Further, we find that no advance publicity was given to the public at large that the highway

patrol intended to conduct a roadblock in this area. We emphasize that the advance publicity

requirement of Downey was not merely an afterthought or a constitutionally needless restriction

upon otherwise legitimate law enforcement activity. Apart from the important deterrence aspects

discussed earlier, advanced publicity also gives citizens the important choice of not exposing

themselves to state intrusion without prior suspicion of wrongdoing. Moreover, citizens who are

aware that they may be subject to roadblocks have more of a basis to “anticipate and understand the

circumstances” of the stop. See Jones v. State, 459 So. 2d 1068, 1076 (Fla. Dist. Ct. App. 1984).

Although the absence of publicity will not invariably render a checkpoint invalid if other measures

satisfy these concerns, the advanced publicity requirement of Downey must nevertheless be regarded

as a key aspect of a minimally intrusive roadblock. Accordingly, we find that the absence of many

of the attributes necessary to minimize the risk of arbitrary interference with the liberty and privacy

of motorists weighs heavily against finding this roadblock to be constitutionally reasonable.

PRIOR ADMINISTRATIVE APPROVAL AND ADEQUATE

SUPERVISORY AUTHORITY

Most importantly, however, the record does not show that the checkpoint was “established

and operated in accordance with predetermined operational guidelines and supervisory authority.”

First, we find no evidence that this roadblock was initially established with prior administrative

authority. Lieutenant Hill testified that he supervised the roadblock during his shift upon orders

from Lieutenant Phillips, and the Court of Criminal Appeals found that this fact suggested the

presence of prior administrative approval. However, our review of the record indicates that it was

Lieutenant Phillips who established this roadblock in the first instance and that Lieutenant Hill was

only responsible for its continuation.9 Downey clearly condemns the same person holding the power

to approve and establish a roadblock, and the disconcerting appearance of this fact in any record is

necessarily fatal to a finding of reasonableness under Article I, section 7.

We recognize the possibility that Lieutenant Phillips obtained administrative approval prior

to his establishing of the roadblock, but absolutely no proof of this fact exists in the record.

Importantly, Lieutenant Hill was only able to speculate that such may have been the case, and the

State did not introduce any other testimony or documentation to show that administrative approval

9

Thoug h adm ittedly unc lear, the reco rd seem s to indicate that Lieutenant Hill either continued a roadblock

already in operatio n or that he was the last o fficer to arrive on the scene to start the operation of an already established

checkp oint. Lieutenant Hill’s testimony indicates that Lieutenant Phillips was the officer responsible for in itially

arranging and setting up the roadblock and that Phillips could not establish a roadblock without approval from higher

authorities. Because Downey requires that the officer establishing the roadblock obtain prior administrative approv al,

Lieutenant Hill’s operation of an already established roadblock is seemingly irrelevant to prove the presence of prior

admin istrative app roval.

-17-

existed in fact. Although the State could have called a witness with actual knowledge, such as

Lieutenant Phillips, or otherwise introduced a paper record of the prior approval from the

Department of Safety, it did neither. Because the State has the burden of establishing the

reasonableness of the roadblock, it must introduce some proof of prior administrative approval

before courts may conclude that such was the case. Unlike the intermediate court, we attribute little

significance to the fact that Lieutenant Hill was unconnected with the establishment of this

roadblock, and we are not willing to equate this circumstance with actual proof of prior

administrative approval as required by Downey. Because the State introduced no other proof of

prior administrative approval, we find that the preponderance of the evidence establishes that the

roadblock was not initiated in conformity with constitutional requirements.

Second, the record shows that the discretion of the officers on the scene of this roadblock was

not properly limited or supervised and that the officers actually conducting the checkpoint had

virtually complete discretion to decide for themselves the procedures to be used in its operation.

Although the Department of Safety has issued administrative guidelines to be followed at drivers’

license roadblocks, the extreme deviations from General Order 410 in this case demonstrate that

adequate supervision was practically nonexistent. Despite Lieutenant Hill’s affirmative obligation

to ensure compliance with General Order 410, see General Order 410, para. V.C. (effective Sept. 30,

1995), the record indicates that the following violations of the General Order occurred: (1) officers

used the roadblock to search for crimes other than violations of drivers’ license requirements, as

evidenced by the presence of a drug dog and the pictures of the “North Chattanooga rapist,” id. para.

VI.A; (2) the officers did not clearly convey their intent to check for valid drivers’ licenses to all

motorists as they were stopped, id. para. VI.B; (3) the officers did not post any signs to warn

motorists that a roadblock was ahead, id. para. VI.D.2; (4) officers other than uniformed

commissioned officers of the Tennessee Highway Patrol stopped vehicles and demanded exhibition

of the operator’s license, id. para. VII.B.2;10 (5) the officers did not use orange safety vests, id. para.

VII.D; (6) the officers did not use orange or red flashlight batons, id. para. VII.D; and (7) the officers

did not use spotlights at the scene to give proper illumination, id. para. VII.F. Had the supervision

of the officers on the scene been adequate, we have no doubt that many, if not all, of these violations

would have been either prevented or corrected.11

10

At the suppression hearing, Lieutenant Hill admitted that the practice of county deputies stopping cars to

check licenses, even at a roadblock, is contrary to General Orde r 410 an d that such a practice is also contrary to his

understanding of Tennessee Code Annotated sections 40-7-103(b) and 55-50-351(a). The fact that he permitted the

roadblock to continue operation in violation of several statutes is strong evidence that the roadblock was not conducted

with adequate supervision.

11

Our op inion tod ay shou ld in no w ay be co nstrued a s giving co nstitutional approval to drivers’ license

roadblocks conducted in the manner contemplated by General Order 410. We mention the numerous and substantial

deviations from the administrative regulations only to demonstrate that little or no supervisory authority existed on the

scene of this roadblock. To the extent that any General Order regulating any type of roadblock is inconsistent with our

decision in this case or with our decision in Downey, no measure of compliance with that Order will sustain the

checkp oint as reaso nable un der Article I, section 7.

-18-

Moreover, the testimony given at the suppression hearing demonstrates that Lieutenant Hill

did not adequately supervise the conduct of the officers during the appellant’s stop. For example,

Sergeant Short of the Chattanooga Police Department testified that Lieutenant Hill was completely

unaware of the following circumstances: that the appellant’s car had been pulled over solely on the

authority of local officers; that the officers detected the smell of marijuana in the appellant’s car; that

the officers conducted a canine sniff of the appellant’s car; or that the officers proceeded to search

the car. It was only after the appellant’s arrest that Lieutenant Hill was made aware of these

proceedings. Sergeant Short further testified that during this time, Lieutenant Hill was “standing in

the road,” apparently unconcerned with what the local officers were doing around him.

We conclude that the extreme deviations from the administrative guidelines, coupled with

testimony about the nature of the supervision, demonstrate that the discretion of the officers on the

scene was not limited in any meaningful sense. Our decision in Downey was adamant that genuine

limitations on the officers’ discretion was an essential component of the roadblock exception to

Article I, section 7, and we rejected the view that the absence of formal, supervisory participation

was entitled to “little weight.” 945 S.W.2d at 110. To the contrary, active and careful supervision

is critical to the constitutional reasonableness of any roadblock, and because the record indicates that

the discretion of the officers in this case was not limited in any significant manner, we conclude that

this roadblock fails analysis under our interpretation of Article I, section 7 in Downey.

THE EFFECT OF A SUBTERFUGE OR PRETEXT

Finally, the preponderance of the evidence suggests that the roadblock in this case was

actually operated for purposes other than as a drivers’ license checkpoint. In Downey, we alluded

to the fact that an ostensibly legitimate roadblock operated as a pretext or subterfuge to further

illegitimate law-enforcement practices may be unreasonable under the Tennessee Constitution. 945

S.W.2d at 111. However, we did not actually reach this issue in Downey, because the actual purpose

of the drivers’ license roadblock in that case was to detect and deter drunk drivers—a legitimate and

sufficiently compelling state interest. Because we found that the primary purpose of the Downey

roadblock was constitutionally permissible, the analysis of that case more properly focused on the

lack of adequate administrative and supervisory oversight.

Nevertheless, we acknowledged then, and we reiterate now, that a checkpoint designed or

operated to further illegitimate law enforcement practices under the pretext of a lawful purpose is

unreasonable under Article I, section 7, irrespective of other indicia of reasonableness. If the

subterfuge exists on the administrative or planning level, such that the roadblock is primarily

designed to further a noncompelling state interest, the roadblock will necessarily fail for lack of a

sufficiently compelling state interest. See Edmond, 531 U.S. at 44, 47. Furthermore, operation of

a roadblock so as to pursue illegitimate objectives is virtually incontrovertible evidence that

inadequate levels of control and supervision of the officers on the scene are being maintained.

Downey, 945 S.W.2d at 111. While we will not seek to determine the intent of the individual

officers in the field once a sufficiently compelling state interest is found, cf. Vineyard, 958 S.W.2d

-19-

736, the actions of the officers and the circumstances surrounding the stops should be considered as

evidence of inadequate administrative and supervisory oversight.

Our close examination of the record reveals much evidence to show that this drivers’ license

roadblock was designed and operated as a method to pursue objectives other than detecting and

deterring unlicensed drivers. On the administrative level, the time and place of the roadblock do not

seem calculated, at least in an intuitive sense, to detect unlicensed drivers, and the fact that the State

introduced no proof that the time and site of the roadblock were chosen because of their effectiveness

in detecting and deterring unlicensed drivers further indicates that the “drivers’ license” checkpoint

was a subterfuge.12 On the operational level, the record shows that at least one officer on the scene

possessed and used a drug dog, and another officer seems to have conducted the roadblock for the

purposes of apprehending a fleeing felon. Because neither of these purposes is arguably related to

any interest served by a checkpoint established to detect and deter unlicensed drivers, see United

States v. Morales-Zamora, 974 F.2d 149, 153 (10th Cir. 1992) (finding pretextual drivers’ license

checkpoint, in part, when officers brought drug dog to scene before cars were stopped), one may

infer that at least some officers were pursuing investigatory agendas that were wholly distinct and

apart from the State’s claimed interest.

While officers are not required to look the other way when they legitimately discover

violations, they may not, as appears to have happened here, actively seek out other criminal

wrongdoing under the guise of checking for drivers’ licenses.13 In State v. Vineyard, 958 S.W.2d

12

The trial court made no finding of the primary purpose of this roadblock, and we need not do so here. On

appeal, though, the prevailing party at the suppression hearing is entitled to the strongest legitimate view of the evidence,

State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996), and as no proof exists to the contrary, a reasonable inference arises

that the time and place of the roadblock were not chosen so as to detect unlicensed drivers. Indeed, if one assumes that

the vast majority of citizens, licensed or unlicensed, will not be traveling on the roads at 2:00 a.m., one may infer that

the roadblock was not designed to deter unlicensed drivers either.

13

Indeed, we take notice of the fact that the sobriety roadblocks, which we permitted in Downey only under

heightened constitutional requirements, are being operated in some cases under the guise of “drivers’ license”

checkp oints without regard to Downey . For example, in State v. Steward, N o. M 1999-01284-C CA -R3-CD , 2000 WL

1246436 (Tenn. Crim. App. filed at Nashville, Aug. 30, 2000), the Court of Criminal Appeals noted the following

candid te stimony from an officer w ho particip ated in a “d rivers’ licens e” check point:

THE COURT: Trooper, why did Sergeant Ray, I suppose, decide to conduct one kind of

roadblock instead of the other?

[Trooper] McALLISTE R: Usually, all we hold is the traffic enforcement-type roadblock.

The sobriety roadblo cks, [under General Order] 410 .1, require[] a minimum of six officers and that

the colon el pre-app rove it five d ays prior to that.

THE COURT: So you just decided not to do that and you’re going to do the other kind [of

roadblocks] and catch the same people?

McALLISTER: I’ve been on the [force] for two years, all I’ve ever held is a traffic

enforcement-type roadblock.

(continu ed...)

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730 (Tenn. 1997), we held that an officer’s subjective intentions in stopping an automobile, no

matter how questionable, would not affect the validity of the stop so long as probable cause existed

to believe that the defendant violated the traffic code. 958 S.W.2d at 737. We reasoned that the

dangers presented by an individual officer’s investigatory agenda were mitigated in such cases

because “[t]he probable cause requirement constrains the exercise of police discretion and safeguards

the citizenry against arbitrary intrusions.” Id. at 735 (citing Whren v. United States, 517 U.S. 806

(1996)).

However, because roadblocks are operated without the protections provided by the probable

cause requirement, courts must assume a special role in ensuring that constitutional safeguards are

not eroded by subterfuge or pretext. Cf. United States v. Huguenin, 154 F.3d 547, 555 (6th Cir.

1998) (“We believe the Fourth Amendment requires that police deception and subterfuge must be

carefully scrutinized in regard to pretextual checkpoints, as checkpoints constitute an exception to

the Fourth Amendment’s requirement for a warrant and probable cause.”). When police officers are

permitted, either through administrative design or supervisory neglect, to actively engage in

suspicionless investigation of criminal activity wholly unrelated to the purposes of the roadblock,

the constitutional protections afforded by Article I, section 7 are rendered utterly without effect or

meaning. To be sure, our decision in Downey allowing a narrow exception for sobriety checkpoints

was not meant as a signal to law enforcement officers that a citizen’s constitutional protections

evaporated upon being halted at a roadblock.

Considering all of the circumstances surrounding this roadblock, we must conclude that the

preponderance of the evidence establishes that the operation of this roadblock violated minimal

constitutional requirements. First, the level of intrusion into the liberty and privacy of the citizens

stopped was beyond that characterized as reasonable by Downey. Second, the State offered no

evidence to show prior administrative approval, and because the State has the burden of establishing

the reasonableness of the roadblock, we will not presume that such was the case. Third, the record

demonstrates that the officers on the scene decided for themselves the proper procedures to be

followed and that these officers were not adequately supervised. Finally, the record contains much

evidence to show that the drivers’ license roadblock was initially established and operated in the

field as a method to pursue objectives other than to detect and deter unlicensed drivers. Accordingly,

we hold that this roadblock represented an unreasonable interference with the liberty and privacy of

the citizens stopped in violation of Article I, section 7 of the Tennessee Constitution.

13

(...continued)

W e are unsure how law enforcement officers have come to believe that drivers’ license roa dblock s may b e operate d with

less concern for constitu tional requ iremen ts than sobriety roadblocks. Article I, section 7 certainly makes no distinction,

and we note that the roadblock in Downey itself was no minally a drivers’ licen se check point. To be sure, no authority

from this Court exists for the proposition that drivers’ license checkpoints may be operated under different and lessened

constitution al standard s merely because of the labe l attached to them.

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CONCLUSION

In summary, we hold that the drivers’ license roadblock in this case violates the protections

against unreasonable seizures found in Article I, section 7 of the Tennessee Constitution. First, the

State has failed to demonstrate a sufficiently compelling state interest to justify suspicionless stops

to check drivers’ licenses. Second, even assuming the presence of a compelling state interest, the

State has not shown that roadblocks are “sufficiently productive” in achieving that interest such that

they could “qualify as a reasonable law enforcement practice.” Finally, we find that the operation

of this roadblock was not conducted according to predetermined operational guidelines or with

adequate supervisory authority that would minimize the risk of arbitrary intrusion on individual

liberty and limit the discretion of officers at the scene. Accordingly, the decision of the trial court

to suppress all evidence derived from the roadblock is affirmed. We reverse the judgment of the

Court of Criminal Appeals and dismiss the indictment against the appellant.

Costs of this appeal shall be paid by the State of Tennessee.

_________________________________

WILLIAM M. BARKER, JUSTICE

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