State v. Levitt

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs September 25, 2001

STATE OF TENNESSEE v. JOSEPH J. LEVITT, JR.

Direct Appeal from the Criminal Court for Knox County

No. 66082 E. Shayne Sexton, Judge

No. E2000-03051-CCA-R3-CD

December 18, 2001

The defendant drove up behind a vehicle which had halted because of a driver’s license roadblock

near Knoxville. He then proceeded onto the right shoulder to get around that vehicle and was

stopped by the Tennessee Highway Patrol officer conducting the roadblock. What next occurred was

highly disputed, but the events culminated with the defendant’s being sprayed with Freeze, some of

which was deflected back onto the officer, partially incapacitating him also. The defendant was

charged with resisting arrest, reckless driving, and failure to carry and display a driver’s license on

demand. The reckless driving charge was nolle prosequi and, following a jury trial, the defendant

was found not guilty of resisting arrest but was convicted of the driver’s license charge, sentenced

to ten days confinement, which was suspended, and ordered to pay a $50 fine and court costs. He

timely appealed the conviction, arguing that the roadblock was unconstitutional. Based upon our

review, we conclude that the roadblock was unconstitutional and that the officers lacked probable

cause to stop the defendant’s vehicle. Accordingly, we reverse the conviction and dismiss the

charge.

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

and Dismissed

ALAN E. GLENN, J., delivered the opinion of the court, in which JOE G. RILEY and THOMAS T.

WOODALL, JJ., joined.

James A. H. Bell, Knoxville, Tennessee, for the appellant, Joseph J. Levitt, Jr.

Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General;

and Eric D. Christiansen, District Attorney General Pro Tem, for the appellee, State of Tennessee.

OPINION

Following a jury trial, the defendant was found not guilty of resisting arrest but guilty of

failure to carry and display his driver’s license on demand, in violation of Tennessee Code Annotated

Section 55-50-351, a Class C misdemeanor. The trial court sentenced the defendant to ten days in

the county jail, suspended upon payment of a $50 fine and all court costs. Following the denial of

his motion for a new trial, the defendant filed a timely notice of appeal to this court, raising two

issues, which he states in his brief as follows:

I. The Trial Court erred in determining that the roadblock operated

by members of the Tennessee Highway Patrol was constitutionally

permissible and denying the Appellant’s Motion to Suppress all

evidence obtained as a result of this roadblock.

II. The evidence presented at trial was insufficient to prove beyond

a reasonable doubt that the Appellant was operating a motor vehicle

in violation of T.C.A. § 55-50-351, requiring that an individual carry

a valid drivers [sic] license and display same when asked to by law

enforcement officers.

Although the evidence presented was sufficient to sustain the conviction, we conclude that

the trial court erred in denying the defendant’s motion to suppress evidence relating to the charge

of failure to carry and display his license on demand, reverse the conviction, and dismiss the charge.

FACTS

On Saturday, April 5, 1997, at the beginning of their shifts, Troopers Frank Shearl and

Stephen Parsley of the Tennessee Highway Patrol approached their supervisor, Sergeant Dennis

Murray, at the Rocky Top gas station in Knoxville, informed him that they wanted to conduct a

“traffic enforcement” roadblock together that day, pursuant to General Order 410,1 and received his

permission to establish a driver’s license checkpoint underneath the South Knoxville Bridge on

Riverside Drive in Knoxville. The spot was a “preapproved” roadblock site, where many roadblocks

had been conducted in the past. The road was two-lane, approximately twenty to twenty-two feet

wide, and ran east to west underneath the bridge. Paved shoulders that were at least ten feet wide

made it possible for the troopers to pull vehicles to the side of the road in safety. Approximately 100

to 200 feet east of the site, and 400 to 500 feet west, sharp curves in the road hid the roadblock from

approaching traffic. The troopers acknowledged that they had no traffic statistics or data that

indicated the need for a traffic enforcement roadblock at that site. Instead, the location was chosen

because it was a convenient site for the officers to conduct a roadblock.2

The roadblock was begun at 4:15 p.m., and operated until approximately 6:30 p.m. Trooper

Shearl, as the officer with the most seniority, was in charge. Trooper Parsley testified at the

suppression hearing that their “predetermined” plan was to stop every vehicle that came through the

1

Tenne ssee Departm ent of Safety Genera l Ord er 410, governing the operation and estab lishment of traffic

enforcement roadblocks, requires the presence of only two officers. Sobriety roadblocks, by contrast, require six officers.

2

It was possible for a roadblock at that location to be cond ucted by o nly two officers. The site was also

centrally located, making it possible for the troop ers to respond fairly q uickly to emergency calls throughout the county.

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roadblock, unless the conditions became too hazardous to do so. Both troopers were in uniform, and

the blue lights on their patrol cars, which were parked on the westbound shoulder of the road, were

activated. However, no advance publicity of the checkpoint was given, no traffic cones were set up

to direct motorists through the roadblock, and there were no signs to warn approaching drivers of

the roadblock.

The checkpoint had been in operation for approximately an hour and a half to two hours

when the sixty-five-year-old defendant, Knoxville lawyer Joseph J. Levitt, Jr., approached it in the

eastbound lane. The defendant, who had been mowing grass at one of his rental properties, was

driving a 1977 Chevrolet van and towing a medium-sized trailer carrying lawn equipment. Trooper

Shearl was in his patrol car, parked on the westbound shoulder of the road, writing a ticket to a

violator who was parked on the eastbound shoulder. Immediately in front of the defendant, in the

eastbound lane, Trooper Parsley had stopped a small, older model Chevrolet Blazer sport utility

vehicle. The Blazer was towing a ten-foot-wide boat trailer carrying a twenty-four-foot- long

pontoon boat that had a mooring cover over it. Trooper Parsley was standing beside the driver’s

door, checking the license of the driver of the Blazer. There were no vehicles stopped in the

westbound lane.

At the suppression hearing, Trooper Parsley testified that he was talking to the driver of the

Blazer when he “heard gravel being kicked up, ” and looked up to see the defendant’s orange and

white van coming around on the right, traveling on the gravel portion of the shoulder. He said that

he saw the van veer, and almost strike a parked vehicle ahead of it on the shoulder, before reentering

the paved shoulder and then the traffic lane. Later in his testimony, he said that the defendant came

within “two to three feet” of the parked vehicle, before moving back over into the eastbound lane.

He estimated the speed of the defendant’s van as between twenty-five and thirty miles per hour, and

said that, although that was within the speed limit on Riverside Drive, the manner in which the

defendant was driving “was unsafe for the conditions at the time we were there at the roadblock.”

Trooper Parsley testified that when he yelled “stop,” the defendant stopped with his vehicle

at a slight angle, with the “left front portion” of his bumper “a few inches” over the center double

yellow line. He said that he handed back the driver’s license of the driver of the Blazer, walked up

to the defendant, told him that he could not “drive around the shoulder like that,” and asked to see

his license. According to Trooper Parsley, the defendant, who appeared “very irate,” told him that

he did not have to stop, and that Trooper Parsley was to call him “sir.”3

3

The State did not question Trooper Parsley about what occurred following the stop. At trial, however, he

testified that after he “calmly” approached the defendant’s van and told him that he could not “go around traffic like

that,” the d efendant answ ered, “Yo u-all shouldn’t have the damn road blocked,” and said that Trooper Parsley was to

address him as “sir.” Trooper Parsley said that he responded that he did not have to call the defendant sir, and that he

needed to see his driver’s license. According to Trooper Parsley, he asked three times to see the defendant’s license,

saying, “I need to see your driver’s license. I need to see your driver’s license. I need to see your driver’s license[,]”

but all three times the defendant refused, using the curse words “damn” and “damnit.” Trooper Parsley said that he then

opened the door to the defendant’s van, and told him to step out and show his identification. Instead of complying, the

(continued...)

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On cross-examination, Trooper Parsley acknowledged that from his position beside the

driver’s door of the Blazer, he could not see traffic approaching behind the large pontoon boat. He

admitted that he had not stepped away from the Blazer to signal approaching traffic to stop. He also

acknowledged that they had no traffic cones set up at the roadblock, that he was not wearing a

reflective safety vest, and that he was not using a flashlight. He pointed out, however, that it was

daylight at the time, which made reflective vests and flashlights unnecessary. When asked whether

there was anything to distinguish him “from checking out a wreck,” he answered, “In my perception,

no.” He also verified that during the preliminary hearing, he had acknowledged that whether he had

been conducting a roadblock or investigating a wreck probably would have depended on the

perception of the individual driver.

The defendant testified that the site appeared to him to be the scene of an accident. As he

rounded the sharp curve leading to the bridge, he saw the flashing lights of the patrol cars on the

shoulder on the left side of the road and the back end of the boat trailer. However, he did not see

Trooper Parsley standing in the road beside the Blazer, or anything else that would have indicated

that it was a roadblock, rather than an accident. He testified that he drove slowly toward the scene,

looking to see if the way was clear for him to drive around. He explained that he was familiar with

the road, and knew that there was another sharp curve only a short distance ahead, just beyond the

bridge. He therefore decided to pass the boat and Blazer on the right, driving around on the paved

shoulder of the roadway.

The defendant said that he was on the lookout for broken glass in the road, and was “just

creeping”4 as he drove past the boat and Blazer. After his trailer had cleared the Blazer, he began

easing back over into the lane. When he was back in the lane, he heard someone yell, “Hey,

asshole.” When he heard it again, he leaned out of the window and saw Trooper Parsley coming

toward him. The defendant said that he asked, “Officer, is there something wrong?” and that

Trooper Parsley answered, “Yes, asshole, stop.” The defendant testified that he told the officer, “I

don’t believe you should talk to citizens like that. You can call me sir.” The defendant described

what next ensued:

This officer here, Parsley, came up to my car, and by then–I had my

arm on the window, and I pushed my gear shift into park, and I asked

him, I said – again, if there was something wrong, and he called me

3

(...continued)

defendant kicked him in the shin. In response, Troope r Parsley grabbed the defendant’s left arm and pulled. When he

“yanked,” the defendant’s foot came off the brake, and the van started to roll. Trooper Parsley then sprayed the

defendant in the face with mace. By that time, Trooper Shearl had come up behind Parsley, and he also sprayed the

defendant in the face with mac e. He testified that he and Trooper Shearl “got [the defendant] out” of the van, and

“app roxim ately three feet from his van, he was laid on the concrete.” Trooper Parsley said that he searched the

defendant’s wallet after he had been placed under arrest and found an exp ired license. H e later ran the defendant’s

license number through dispatch, and learned that he possessed a current license.

4

The State asserts in its brief that the defendant testified that “he thought he had come upon the scene of an

accident, yet he went around the scene at or near the speed limit.”

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asshole again, said he didn’t have to call me sir, and grabbed my arm

and then just boom, boom, boom. Somebody grabbed my arm. I was

sprayed in the face. The door was jerked open, and I was pulled out

and my arm, still laying up there on the thing, and it pulled the–the

vehicle out of park. And pulled me out on the ground and sprayed me

either–either once in the van and once coming out the door or twice

in the van. I’m really not sure.

Paul Michael McLain, the driver of the Chevrolet Blazer, testified that earlier that afternoon

he and his wife had driven to the boat ramp at the South Knoxville Bridge so that he could help his

friend, Randy Reynolds, tow his boat home. On their way to meet Reynolds, they drove through the

roadblock without being stopped. He said they had not realized that it was a roadblock, and had

thought they were approaching a wreck. He saw the troopers, but they were at another vehicle, and

there were no signs to indicate that they were conducting a roadblock.

On the return trip with the boat, McLain was driving Reynolds’ Blazer. With him in the

Blazer were Reynolds, Reynolds’ wife Rita, and another woman named Sharon Monday. This time,

driving in the eastbound lane, he was stopped by an officer, whom he later identified as Trooper

Parsley, who asked to see his driver’s license and whether he had been drinking. McLain said that

he told the trooper that he had not had anything but iced tea, and they were joking about that as the

defendant came driving around the Blazer on the right shoulder. He said that the defendant was

driving “very slow,” at “a speed of five miles an hour or less,” did not veer or swerve, and was not

kicking up a cloud of dust, rocks, or gravel.

McLain said that Trooper Parsley yelled “Hey” or “some words” at the defendant and that,

although the defendant did not stop immediately,5 he eventually came to a stop with the end of his

trailer approximately thirty feet in front of the Blazer. Trooper Parsley left the Blazer and went up

to the door of the defendant’s van. McLain could not hear any of the conversation, but saw Trooper

Parsley standing at the door of the van for ten or fifteen seconds. He then saw the other trooper start

across the road toward the van. Halfway across the road, this second trooper took something out of

his belt and started shaking it. When the second trooper reached the van, he sprayed something in

the driver’s window. McLain testified that the driver’s door was closed at the time. Together, the

two troopers physically removed the defendant from his van. The second trooper then jumped in the

van to stop it from rolling away, and Trooper Parsley began leading the defendant across the street.

Halfway across, he stuck his foot out, tripping the defendant, who fell to his knees and lost his

eyeglasses in the process. As the defendant groped for his glasses with his free hand, Trooper

Parsley “took his foot and, like a sweeping kick, kicked his glasses out of the way.” After the

defendant was handcuffed, the officers motioned for McLain to drive on.

5

McLain implied that he tho ught T rooper P arsley’s initial yell m ight not have been heard by the defendant

because his windo w was rolled up.

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On cross-examination, McLain testified that he could not recall seeing the defendant kick

Trooper Parsley, and that he could not say who had opened the van door. When asked if he had seen

the defendant kick at Trooper Parsley, he answered, “The door come open, the officers was [sic]

removing him from the vehicle, I seen legs at that time, you know. Whether they were in a kicking

motion, I cannot tell you that, sir. I don’t know.” McLain admitted that he had not reported Trooper

Parsley’s treatment of the defendant to any authorities. He said that he had contacted the defendant

after Reynolds read an article in the newspaper about the incident, and recognized it as the same one

they had witnessed.

Randy Reynolds, the owner of the Blazer, testified that he was sitting in the front passenger

seat when he saw the defendant drive past the Blazer on the shoulder, traveling very slowly, at

“three, four, five mile an hour, somewhere around there.” He described what occurred:

Well, I noticed it [the defendant’s van] when he got about to the

mirror, and the officer hollered–when he got about to the front of the

Blazer, the officer hollered, “Stop,” I believe that’s what it was, and

so he kind of pulled on up a little, maybe five, ten foot, and he was

just barely rolling and one–one officer runs over and grabs the door,

and the other one runs and grabs him and jerks him out, and one

throws it in park.

Reynolds said that he did not see any signs announcing that the troopers were conducting a

roadblock. He had assumed that it was a roadblock, however, because he had had the opportunity

to watch the troopers for ten or fifteen minutes as he loaded his boat onto the trailer.

On cross-examination, he testified that the defendant’s van slowed down, but never came to

a complete stop. The rear of the defendant’s trailer, he said, was about ten feet in front of his Blazer

when the first trooper started toward the van. That trooper said something to the defendant, which

Reynolds could not hear. He then opened the door of the van and grabbed the defendant, while the

second trooper put the van in park. After the troopers had pulled the defendant out of the van, the

first trooper, who had the defendant’s arm in a twisting hold, put his foot behind the defendant’s

legs, and “took him down” to the ground.

At the conclusion of the hearing, the trial court issued an oral ruling denying the motion to

suppress. In its ruling, the court indicated that it was finding that the constitutionality of the

roadblock was irrelevant because the defendant had driven around the checkpoint:

We’re not talking about someone who did not comply with a willful–I

don’t see the roadblock as the issue here. I don’t. I think that [the

defendant] candidly said that he thought it was a wreck, and I’ll take

that–I’ll take that as money in the bank. The question becomes

after–I don’t think he did anything improper. I don’t think he did

anything improper by going by, but the question is, once the officer

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says “Stop,” what happens? I think the officer at that point had a

right to say “Stop.” Up until then, I don’t see anything wrong with

this process.

However, as the following exchange makes clear, the court also gave at least some indication

that it was finding the roadblock constitutional, based on the fact that it did not substantially deviate

from the procedures established in Department of Safety General Order 410:

MR. BELL: But, Your Honor, he had him stopped, not because

of a wreck but because the officer believed he was conducting a

roadblock. That’s what–

THE COURT: You see, I don’t–well, then we go back to is this

a lawful roadblock? I believe that under General Order 410, I don’t

think that what happened deviates substantially from–what happened

factually in this case, deviates substantially from 410. Now, I think

that Downey has cleaned up a lot of what 410 did, but that’s the

problem with running these cases three years down the line.

I’ll tell you, gentlemen–I mean, I am–this is somewhat probably

unusual coming from a court, but I don’t see the problems leading up

to the stop. I see terrible problems after it happened. I mean–

When asked to clarify its ruling regarding the constitutionality of the stop, the court explained

that it did not find the procedures for constitutionally reasonable sobriety checkpoints, adopted by

our supreme court in State v. Downey, 945 S.W.2d 102 (Tenn. 1997), applicable to the case:

Your ruling is as follows. As to Downey, I find that it does not apply.

As a matter of law, I have considered the changes that were made to

General Order 410 based on the Downey case. I think I have run that

through my mind. Standing, I don’t think is an issue in this case. I

think that [the defendant] availed himself to what is a right of his,

which is to proceed around. I don’t think it was a necessarily safe

action. I don’t think that everyone would do that, but I believe that

he was within his power to do that, but I also think that the officer

had, within his duty, the option to ask [the defendant] to stop, and I

believe that occurred. I think the officer acted lawfully and [the

defendant] acted lawfully, and so I find that there was no unlawful

halt, there was no unlawful stop. I don’t find the roadblock

procedures persuasive in any way, and I think that the case will go

forward like that.

-7-

The court went on to find that the evidence did not support the reckless driving charge, and

that the defendant’s “action did not, in and of themselves, [sic] constitute an act that might by itself

be sufficient to stop the car.” When asked on what basis it was finding that the trooper had lawfully

stopped the defendant, the trial court stated that it was based on:

The statute of when blue lights are running, the law enforcement

officer is running whatever process on the road, whether he’s working

a wreck, whether he’s running a roadblock, whatever it is, at that

particular time, the road was quarantined off or it was at least being

supervised by the Tennessee Highway Patrol, and [the defendant]

didn’t know why. He was acting on his own. That’s fine. The

officer had different intentions, but his intentions were well founded.

He didn’t know if [the defendant] was driving around to avoid that or

to drive around to avoid a wreck, to avoid whatever, just didn’t know

if he was getting around the edge.

My ruling is that nothing improper on either side occurred. But

I think the officer had a right to stop him, and [the defendant] did

what law enforcement–or what law-abiding citizens would do, which

is stop. At that point it’s–that’s really what the jury is going to

decide, but I think I have–

Based on the trial court’s findings, defense counsel moved to amend the motion to suppress

to include an argument that the trooper had no reasonable suspicion to justify a Terry-type6 stop of

the defendant. In response, the trial court first repeated that the trooper lawfully stopped the

defendant pursuant to his authority to direct and control traffic on public roads, stating:

Well, reasonable suspicion is what the buzzword is, but this is one the

State–and I think it’s a proper contention when a law enforcement

officer has given an order for a motorist to stop, they are to stop.

We’re not talking about a search. We’re not talking about evidence

that was gained after. We’re talking about a terrible thing that

occurred after the stop.

However, the court later went on to indicate that it was finding that the trooper had reasonable

suspicion for the stop, stating that the trooper was not mistaken in the stop, and that it occurred

because “[i]n his mind he thought you were going around his roadblock.” The defendant then

proceeded to trial on the two remaining charges of the indictment.

ANALYSIS

6

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 , 20 L. Ed. 2d 88 9 (1968 ).

-8-

I. Trial Court’s Denial of Motion to Suppress

In challenging the trial court’s denial of his motion to suppress, the defendant argues, first,

that drivers’ license checkpoints are per se unconstitutional, and second, that even if not per se

unconstitutional, the checkpoint at issue in this case failed to satisfy the guidelines established in

State v. Downey, 945 S.W.2d 102 (Tenn. 1997), and State v. Hicks, 55 S.W.3d 515 (Tenn. 2001),

for a constitutional suspicionless stop.7 The State responds by arguing that the constitutionality of

the roadblock is irrelevant. The State contends that the defendant was stopped for the reckless

manner in which he drove around the roadblock, and that the trooper’s request for his license was

a permissible part of a valid investigatory stop.

A. Standard of Review

We review the trial court’s denial of the defendant’s motion to suppress by the following

well-established standard:

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

the evidence, and resolution of conflicts in the evidence are matters

entrusted to the trial judge as the trier of fact. The party prevailing in

the trial court is entitled to the strongest legitimate view of the

evidence adduced at the suppression hearing as well as all reasonable

and legitimate inferences that may be drawn from that evidence. So

long as the greater weight of the evidence supports the trial court’s

findings, those findings shall be upheld. In other words, a trial

court’s findings of fact in a suppression hearing will be upheld unless

the evidence preponderates otherwise.

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

the facts, as a matter of law, is reviewed de novo, with no presumption of correctness. State v.

Daniel, 12 S.W.3d 420, 423 (Tenn. 2000). This court may consider the proof at trial, as well as at

the suppression hearing, when considering the appropriateness of the trial court’s ruling on a pretrial

motion to suppress. See State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998) (holding that because

the rules of appellate procedure “contemplate that allegations of error should be evaluated in light

of the entire record[,]” an appellate court “may consider the proof adduced both at the suppression

hearing and at trial”).

B. Denial of Motion to Suppress

In order to set the framework for our review, and because the defendant’s brief focuses on

this topic, we will begin our analysis by examining the constitutionality of the roadblock at issue in

7

The Hicks opinion was released after the briefs were filed in this case. Pursuant to Rule 27(d) of the Tennessee

Rules of Ap pellate Pro cedure, the d efendant submitted the case as supplemental authority for his argument.

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this case. Both the Fourth Amendment to the United States Constitution and Article I, Section 7 of

the Tennessee Constitution protect individuals against unreasonable searches and seizures. See U.S.

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

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

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

387 U.S. 523, 528, 87 S. Ct. 1727, 1730, 18 L. Ed. 2d 930 (1967)). A search or seizure conducted

without a warrant is presumed unreasonable, and evidence obtained as a result will be suppressed

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

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

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

a seizure under both the United States and Tennessee Constitutions. See Whren v. United States,

517 U.S. 806, 809-10, 116 S. Ct. 1769, 1772, 135 L. Ed. 2d 89 (1996); Michigan v. Sitz, 496 U.S.

444, 449-51, 110 S. Ct. 2481, 2485, 110 L. Ed. 2d 412 (1990); Delaware v. Prouse, 440 U.S. 648,

663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660 (1979); State v. Downey, 945 S.W.2d 102, 107 (Tenn.

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

of the exceptions to the warrant requirement. These exceptions include investigative stops based on

reasonable suspicion of wrongdoing on the part of the occupants of the vehicle, see Whren, 517 U.S.

at 810, 116 S. Ct. at 1769; Prouse, 440 U.S. at 655, 99 S. Ct. at 1391; State v. Vineyard, 958 S.W.2d

730, 734 (Tenn. 1997), and roadblocks that are conducted “pursuant to a plan embodying explicit,

neutral limitations on the conduct of individual officers.” Brown v. Texas, 443 U.S. 47, 51, 99 S.

Ct. 2637, 2640, 61 L. Ed. 2d 357 (1979). Under the latter exception, the United States Supreme

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

interest of the individual, has held that a roadblock designed to check for intoxicated drivers is not

violative of the Fourth Amendment to the United States Constitution. Sitz, 496 U.S. at 453, 110 S.

Ct. at 2485.

In State v. Downey, 945 S.W.2d 102 (Tenn. 1997), our supreme court adopted the balancing

analysis used in Sitz to determine whether sobriety checkpoints violate Article I, Section 7 of the

Tennessee Constitution. Id. at 110. Under this analysis, which weighs “‘the gravity of the public

concerns served by the seizure, the degree to which the seizure advances the public interest, and the

severity of the interference with individual liberty,’” id. at 107 (quoting Brown, 443 U.S. at 50-51,

99 S. Ct. at 2640), the court concluded that a sobriety checkpoint, because of the compelling public

interest in preventing drunk driving, can be a reasonable seizure under the Tennessee Constitution

“provided it is established and operated in accordance with predetermined operational guidelines and

supervisory authority that minimize the risk of arbitrary intrusion on individuals and limit the

discretion of law enforcement officers at the scene.” Id. at 104. Because the evidence in Downey

revealed that the decision to operate the checkpoint was made by an officer in the field, who acted

without any supervisory or administrative oversight of his actions, the court found that the roadblock

was unconstitutional under Article I, Section 7 of the Tennessee Constitution. Id. at 110-11.

More recently, in State v. Hicks, 55 S.W.3d 515 (Tenn. 2001), our supreme court addressed

the constitutionality of drivers’ license roadblocks under Article I, Section 7 of the Tennessee

Constitution. Id. at 519. The court explained that the balancing test used in Downey is to be applied

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not just to sobriety checkpoints, but in “all cases involving constitutional challenges to roadblocks

or checkpoints under the Tennessee Constitution.” Id. at 524. It next determined that, under the

Downey test, “a roadblock will necessarily fail constitutional examination if it lacks a sufficiently

compelling state interest.” Id. at 527. The court then considered whether there is a sufficiently

compelling state interest in roadblocks established solely to check drivers’ licenses. After examining

the State’s assertion that drivers’ license roadblocks are necessary to ensure highway safety by

detecting and deterring unlicensed drivers, it concluded that “no evidence in the record establishes

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

suspicionless stops.” Id. The court wrote:

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.

Id.

In a separate concurring opinion, Chief Justice Anderson, joined by Justice Birch, concluded

that drivers’ license roadblocks are per se unconstitutional under Article I, Section 7 of the

Tennessee Constitution because a sufficiently compelling state interest in drivers’ license roadblocks

can never be shown. Id. at 539. Distinguishing drivers’ license roadblocks from sobriety

roadblocks, Justice Anderson wrote: “In my view, 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 stop

of all drivers at a checkpoint.” Id. at 540 (emphasis in original).

In light of Hicks, we conclude that the drivers’ license checkpoint in this case was an

unreasonable seizure, violative of Article I, Section 7 of the Tennessee Constitution. First and

foremost, the required showing of a compelling state interest was not made. “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.” Id. at 528.

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However, even had the State established a compelling interest, we would still have no

hesitation in determining that the roadblock here failed to pass constitutional muster, based on its

failure to be established and operated in a manner that minimized its intrusiveness on individual

freedom. The Hicks court made it clear that drivers’ license roadblocks are subject to the same

requirements for constitutional reasonableness as sobriety roadblocks. Id. at 537 n.13. According

to the court:

[T]he 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. 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.

Id. at 533 (citation omitted).

The roadblock here did not meet these minimal standards for constitutionality. There was

no meaningful prior administrative authorization or approval for the establishment of the roadblock

at the Riverside Drive location on the afternoon of April 5, 1997. Troopers Parsley and Shearl

formulated the plan for the roadblock together, and had a location picked out, before approaching

Sergeant Murray at the service station to obtain his approval. Although Sergeant Murray’s

permission may have technically complied with the Downey requirement that the party responsible

for establishing the roadblock be different from the party responsible for approving it, we cannot

conclude that mere acquiescence to an already formulated plan satisfies the reasonableness

requirement. It is also clear that the officers in the field, who were totally unsupervised at the scene,

chose the time of the roadblock, the procedures to be employed, and which vehicles were to be

stopped. Further evidence supporting the unreasonableness of the roadblock includes the lack of

advance publicity, the failure to have traffic cones or warning signs in place, and testimony

indicating that Trooper Parsley used the roadblock as a subterfuge to question at least one driver

about his drinking. See generally, id. at 534-38.

Had the defendant stayed in his lane, to be stopped after Trooper Parsley concluded his

encounter with McLain, our inquiry would be ended, since there would be no doubt that he would

be entitled to the suppression of evidence obtained as the result of a seizure at an unlawful

roadblock. See State v. Keith, 978 S.W.2d 861, 865 (Tenn. 1998). However, the defendant drove

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onto the paved shoulder to pass on the right the vehicle immediately in front of him before pulling

back into the lane. Therefore, we must next consider whether the trial court erred in finding that

Trooper Parsley lawfully stopped the defendant after he had passed on the right the Blazer and its

trailer which was stopped in his lane.8

In Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed.2d 889, the United States

Supreme Court held that a law enforcement officer may conduct a brief, investigatory stop of an

individual if the officer has a reasonable suspicion, based on specific and articulable facts, of

criminal activity on the part of the individual. Under the Terry rationale, an officer may stop and

detain a vehicle based on the reasonable suspicion that one of its occupants is either engaged in, or

about to be engaged in, criminal activity. Ornelas v. United States, 517 U.S. 690, 693, 116 S. Ct.

1657, 1662, 134 L. Ed. 2d 911 (1996); State v. Simpson, 968 S.W.2d 776, 780 (Tenn. 1998);

Vineyard, 958 S.W.2d at 734. Reasonable suspicion is an objective standard, and must be

determined from the totality of the circumstances. United States v. Cortez, 449 U.S. 411, 417-18,

101 S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981); Ornelas, 517 U.S. at 696, 116 S. Ct. at 1661-62.

“Based upon that whole picture the detaining officers must have a particularized and objective basis

for suspecting the particular person stopped of criminal activity.” Cortez, 449 U.S. at 417-18, 101

S. Ct. at 695. Reasonable suspicion will be found to exist only when “the events which occurred

leading up to the stop” would cause an “objectively reasonable police officer” to suspect criminal

activity on the part of the individual stopped. Ornelas, 517 U.S. at 696, 116 S. Ct. at 1661-62.

The State argues that the defendant’s reckless manner of driving around the Blazer provided

Trooper Parsley with “more than reasonable suspicion” for the stop. We agree that the observation

of a traffic violation, such as reckless driving, would have given Trooper Parsley not only reasonable

suspicion, but probable cause, to stop the defendant. See Whren v. United States, 517 U.S. 806,

817, 116 S. Ct. 1769, 1776, 135 L. Ed. 2d 89 (1996) (citations omitted) (noting that traffic violations

provide probable cause for a stop). “As a general matter, the decision to stop an automobile is

reasonable where the police have probable cause to believe that a traffic violation has occurred.”

Id. at 810, 116 S. Ct. at 1772 (citations omitted). The descriptions were vastly differing as to the

manner in which the defendant passed to the right the pontoon boat, pulled by the Blazer, which

were stopped in his lane. The photographs of the area show that the shoulder adjacent to the spot

where the Blazer was stopped is paved and somewhat wider than the lane itself. Portions of the

surface of the paved right shoulder appear to have dirt and loose gravel on them. Paul Michael

McLain, the driver of the Blazer, testified at the trial that, as the defendant’s van came abreast of his

vehicle, the van was proceeding “[v]ery slow. Very slowly, less than five miles an hour.” He said

that the van then stopped about thirty feet in front of his vehicle. Additionally, he had testified at

the motion to suppress that the defendant’s vehicle was neither swerving nor veering and agreed that

it was not “kicking up a cloud of dust and rocks and gravel.” During the motion to suppress, he also

8

W e note, however, that in a recent unpublished opinion, another panel of this court concluded that a defendant

who accelerated past a trooper cond ucting a roadblo ck, before finally halting in the center of the road, had been stopped

at the roadbloc k. See State v. Joe W. Steward, No. M 1999-01 284-CC A-R3-CD , 2000 W L 1246 436, at *1-2 (Tenn.

Crim. App . Aug. 1 8, 20 00), perm. to appeal granted (Tenn. Oct. 8, 2001).

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said that he did not see the defendant’s van come close to hitting another car. Randy Reynolds,

sitting in the right front seat of the Blazer, agreed that the van was going “[f]our or five mile[s] an

hour” when he first saw it, and that he did not notice if it was kicking up “dust and rocks.” At the

motion to suppress, he had also testified that, as far as he knew, the defendant’s van had not come

close to striking either the Blazer or another vehicle.

In contrast to the testimony of the driver and passenger of the Blazer, Trooper Parsley

testified at the motion to suppress that he heard “gravel being kicked up,” and, looking up, saw the

defendant’s van coming around the right side of the Blazer, almost striking a vehicle parked on the

shoulder in front of the Blazer, and then reentering the lane of traffic in front of the Blazer. He

estimated the speed of the van was “25 to 30 miles per hour, not above the speed limit, but around

the speed limit or right at it.” He said that the van was being operated in a manner which was

“unsafe for the conditions at the time we were there at the roadblock.”

After hearing the testimony at the motion to suppress, the trial court concluded, apparently

both factually and legally, that the State had failed to make a case against the defendant for reckless

driving. Resolving the conflicting testimony as to the defendant’s speed and whether he nearly

struck another vehicle in passing the Blazer on the right, the trial court, as we understand its findings,

rejected the officer’s testimony and accredited the defense proof that the act of passing the Blazer,

and the manner in which the defendant did so, did not constitute reckless driving. Applying the

appropriate standard of review, we conclude that since, in this regard, “the greater weight of the

evidence supports the trial court’s findings, those findings shall be upheld.” Odom, 928 S.W.2d at

23. Thus, we conclude that the trial court did not err in determining that the defendant’s actions in

driving onto the shoulder to pass the Blazer on the right did not provide either probable cause or

reasonable suspicion for stopping his vehicle.

In addition to arguing that the defendant’s manner of driving was reckless, the prosecutor

argued at the suppression hearing that in passing the Blazer on the shoulder, the defendant violated

the statute requiring motorists to drive within the clearly marked lanes of traffic. This statute

provides, in pertinent part:

Driving on roadways laned for traffic.–Whenever any roadway has

been divided into two (2) or more clearly marked lanes for traffic, the

following rules, in addition to all others consistent herewith, shall

apply:

(1) A vehicle shall be driven as nearly as practicable entirely

within a single lane and shall not be moved from such lane until the

driver has first ascertained that such movement can be made with

safety[.]

Tenn. Code Ann. § 55-8-123(1) (1998).

-14-

The prosecutor also referred the trial court to the statute which permits passing on the right

only under limited conditions:

When overtaking on the right is permitted.–(a) The driver of a

vehicle may overtake and pass upon the right of another vehicle only

under the following conditions:

(1) When the vehicle overtaken is making or about to make a

left turn;

(2) Upon a street or highway with unobstructed pavement not

occupied by parked vehicles of sufficient width for two (2) or

more lines of moving vehicles in each direction; and

(3) Upon a one-way street, or upon any roadway on which

traffic is restricted to one (1) direction of movement, where

the roadway is free from obstructions and of sufficient width

for two (2) or more lines of moving vehicles.

(b) The driver of a vehicle may overtake and pass another vehicle

upon the right only under such conditions permitting such movement

in safety. In no event shall such movement be made by driving off

the pavement or main-traveled portion of the roadway.

Tenn. Code Ann. § 55-8-118 (1998). The defendant responded by advising the trial court that the

statute had been interpreted to allow travel on the shoulder.9

The trial court found that the defendant did not violate any traffic laws by passing on the

right. We agree. The defendant did not travel for any substantial distance or period of time outside

his lane of traffic, and quite obviously believed that it would be safer to pass on the right than on the

left, given the sharp curve in the road ahead. He testified that he checked to see if the way was

clear, and proceeded slowly and cautiously around the stopped vehicle and boat. The paved

shoulder, which was at least ten feet wide, provided ample room for him to maneuver, and there were

no parked vehicles impeding his path.10 The defendant was immediately behind the Blazer and boat,

and nothing in the evidence indicates that there were any other vehicles stopped behind him. Thus,

9

In Ludwick v. Doe, 914 S.W.2d 522 (Te nn. Ct. App . 199 5), the C ourt of App eals interp reted the words “street”

or “highwa y” to include “the part designated fo r vehicular travel b y the public, any paved shoulder, any unpaved

shoulder, and any remaining part of the right of wa y,” concluding that this statute was not violated by a motorist’s driving

onto the paved should er to pass on the right a vehicle which wa s stopp ed, wa iting to make a left turn. Id. at 525.

10

Trooper Parsley testified that, as the defendant had entered the right shoulder, he almost stru ck a ve hicle

parked on the shoulder and in front of the Blazer. However, the occupants of the Blazer did not observe the defendant’s

nearly striking this parked vehicle, and the trial court accredited their testimony in this regard.

-15-

this was not the case of a motorist attempting to get around backed up traffic by traveling on the

shoulder, while the rest of the motorists waited in the lane. Instead, the defendant utilized the

shoulder only for the length of time necessary to get around what he believed to be a vehicle that had

been involved in an accident. Accordingly, we conclude that the defendant did not violate this

statute by driving onto the shoulder to pass on the right the vehicle stopped in his lane of traffic.

Next, we consider whether the defendant’s action in bypassing the roadblock was sufficient

to create reasonable suspicion for the stop. In State v. Binion, 900 S.W.2d 702, 705 (Tenn. Crim.

App. 1994), this court concluded that a motorist’s attempts to avoid a roadblock may give rise to a

reasonable suspicion of criminal activity.11 We recognized, however, that a determination of whether

reasonable suspicion exists is necessarily fact-specific, requiring a case-by-case analysis:

Whether reasonable suspicion exists must be determined from the

totality of circumstances on a case by case basis. Among the factors

to be considered is whether objective evidence indicates that the

motorist was attempting to evade arrest or detection. Such evidence

may include the distance the motorist was from the roadblock when

the turn-off or U-turn was made, whether the motorist was able to see

the roadblock before the motorist took evasive action, and the manner

in which the motorist operates his or her automobile in making the

evasive action. Other factors to be considered are the arresting

officer’s experience and any other circumstances which would

indicate the driver was intentionally avoiding the roadblock to evade

arrest or detection.

Id. at 706 (emphasis added).

All the evidence in this case supports the conclusion that the defendant was not attempting

to avoid arrest or detection by driving around the Blazer, and was not aware that he was approaching

a roadblock. The roadblock had not been publicized, no warning signs or traffic cones were erected,

and both troopers were invisible to the defendant as he drove up behind the wide, tarp-covered

pontoon boat. Trooper Parsley admitted that it would have been possible for a motorist to mistake

the roadblock for the scene of an accident. Furthermore, had the defendant been attempting to evade

11

Other jurisdictions have reached similar results, concluding that a motorist’s obvious attempts to avoid a

roadblock may provid e the reasonable su spicion sufficient for a brief, investigatory stop . See, e.g. Synder v. State, 538

N.E.2d 961 , 965 (Ind. C t. App . 198 9) (ho lding that driver’s attemp ts to avoid a roadblock by making a turn around “gives

rise to a reasonable suspicion on the part of a police officer that the driver may be co mmitting a crime”); Stroud v.

Commonwealth, 370 S.E.2d 721, 722 (Va. Ct. App. 1988) (concluding that driver’s U-turn and reversal of direction

within 100 to 15 0 feet o f road block gave officer reasonable su spicion for stop); Tims v. State, 760 S.W .2d 78, 79 (Ark.

Ct. App. 1988) (holding that motorist’s action in accelerating past roadblock pro vided reasonable suspicion for stop);

Coffman v. State, 759 S.W .2d 5 73, 5 75 (Ark. C t. App . 198 8) (stating that mo torist’s turn and reversal of direction at

sight of clearly marked roadb lock gave officers re asonable su spicion for stop); City of Las Cruces v. Betancourt, 735

P.2d 1161, 1163 (N.M. Ct. App. 1987) (holding that motorist who proceed ed past roadblo ck at “high rate o f speed ,”

almost hitting two officers, provided reasonable suspicion for officer to stop vehicle).

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arrest, it is unlikely that he would have driven in a direction that took him toward the patrol cars.

Under the unique circumstances of this case, therefore, we conclude that the defendant’s action in

driving around the roadblock did not provide reasonable suspicion to justify an investigative stop

of his vehicle.

The trial court also found that the stop was lawful based on the statute that “when blue lights

are running, the law enforcement officer is running whatever process on the road, . . . .” The trial

court did not cite the specific code section, but we believe that it was referring to the following:

Obedience to police officers.–(a) No person shall willfully fail or

refuse to comply with any lawful order or direction of any police

officer invested by law with authority to direct, control, or regulate

traffic.

Tenn. Code Ann. § 55-8-104 (1998).

Although this statute may authorize a state trooper to command a motorist to stop as part of

the direction or regulation of traffic, it does not authorize the trooper to request the motorist’s

driver’s license, in the absence of probable cause of a traffic violation or reasonable suspicion of

criminal activity. To allow a trooper to demand a motorist’s driver’s license based solely on a state

statute authorizing troopers to direct traffic would undercut the protections against unreasonable

search and seizure afforded by the Tennessee and United States Constitutions, as well as the holdings

of Downey and Hicks.

Accordingly, we conclude that Trooper Parsley had neither probable cause nor reasonable

suspicion to make an investigatory stop.

II. Sufficiency of the Evidence

As his second issue, the defendant argues that the evidence was insufficient to sustain his

conviction for the violation of Tennessee Code Annotated Section 55-50-351. Although our

determination as to the defendant’s first issue makes this claim moot, we will review it because of

the possibility of further appellate review.

In considering this issue, we apply the familiar rule that where sufficiency of the convicting

evidence is challenged, the relevant question of the reviewing court is “whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the offense charged beyond a reasonable doubt.” Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). See also State v. Evans, 838 S.W.2d

185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992); Tenn.

R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall be set

aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a

reasonable doubt.”). All questions involving the credibility of witnesses, the weight and value to be

-17-

given the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754

S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge,

accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory

of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the

rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and

the jury see the witnesses face to face, hear their testimony and

observe their demeanor on the stand. Thus the trial judge and jury are

the primary instrumentality of justice to determine the weight and

credibility to be given to the testimony of witnesses. In the trial

forum alone is there human atmosphere and the totality of the

evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,

370 S.W.2d 523 (1963)). A jury conviction removes the presumption of innocence with which a

defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted

defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982). When the credibility of the witnesses was resolved by the jury in

favor of the State, the appellate court “may not reconsider the jury’s credibility assessments.” State

v. Carruthers, 35 S.W.3d 516, 558 (Tenn. 2000), cert. denied, ___U.S. ___, 121 S. Ct. 2600 (2001).

Applying these principles, we conclude that the evidence was sufficient for a reasonable jury

to find the defendant guilty beyond a reasonable doubt. Trooper Parsley testified at trial that he

asked three times to see the defendant’s driver’s license, but the defendant refused each time to show

it to him. This testimony was arguably supported, at least in part, by testimony of Ronald Lackey,

a K-9 training coordinator who had stopped at the roadblock in order to talk with Trooper Shearl.

Although Lackey did not testify to hearing Trooper Parsley ask for the defendant’s license, he did

say that he heard Trooper Parsley ask the defendant his name, and that the defendant replied with

“What’s your damn name?” The defendant, on the other hand, testified that the first time he was

asked for his driver’s license was when he was already handcuffed and in the back of the patrol car,

and that he told Trooper Parsley his license was in his wallet in his right rear pocket. The jury

obviously resolved these discrepancies in the proof in favor of the State, and this court may not

reconsider that assessment.

As to the defendant’s claim that the indictment was deficient because it failed to track the

statutory language by omitting the claim that the defendant did not display his license upon demand,

we note that the indictment did allege that the defendant acted “in violation of Tenn. Code Ann. §

55-50-351.” In State v. Carter, 988 S.W.2d 145 (Tenn. 1999), denying the defendant's challenge to

a felony murder indictment which referred to the appropriate proscriptive statute but failed to allege

that the killings were reckless, our supreme court stated:

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In this case, both felony murder indictments referenced the

appropriate statute. This reference provided notice to the defendant

of the applicable mens rea, notice of the offense upon which to enter

the judgment, and protection from subsequent prosecution on the

same offense. The indictment also meets the requirements of Tenn.

Code Ann. § 40-13-202. The language of the felony murder counts

was legally sufficient under Ruff [978 S.W.2d 95 (Tenn. 1998)].

Id. at 149 (citations omitted).

Accordingly, we conclude that, by its reference to Tennessee Code Annotated Section 55-50-

351, count two of the indictment was sufficient to put the defendant on notice as to what he was

alleged to have done and to prevent reprosecution for the same offense.

CONCLUSION

Based upon the foregoing reasoning and analysis, we reverse the judgment of conviction and

dismiss the charge. The matter is remanded for further proceedings consistent with this opinion.

___________________________________

ALAN E. GLENN, JUDGE

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