Opinion
No. M2008-02359-CCA-R3-CD.
Assigned on Briefs April 29, 2009.
Filed February 19, 2010.
Direct Appeal from the Circuit Court for Williamson County; No. I-CR102925; Robbie T. Beal, Judge.
Judgment of the Circuit Court is Affirmed.
John S. Colley, III, Columbia, Tennessee, for the appellant, Elliott Aloyo.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Kim R. Helper, District Attorney General; and Josh D. Marcum, Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the court, in which Joseph M. Tipton, P.J. and D. Kelly Thomas, Jr., J., joined.
OPINION
Following the denial of a motion to suppress, Appellant pled guilty to driving under the influence, but he reserved the following certified question of law under Tennessee Rule of Criminal Procedure 37(b)(2): "Whether the seizure of [Appellant] at the roadblock on June 22, 2007 was an unconstitutional violation of the guarantees against unreasonable searches and seizures under the 4th Amendment to the United States Constitution and Art. I, § 7 of the Tennessee Constitution." Appellant contends it was. The trial court disagreed. Upon review of the record and the parties' briefs, we agree with the trial court and affirm.
I. Factual Background
At 10:54 p.m. on June 23, 2007, Appellant was arrested by officers of the Franklin Police Department who were conducting a sobriety checkpoint on Hillsboro Road. The Williamson County Grand Jury indicted Appellant for driving under the influence (DUI), third offense, driving on a cancelled or revoked license, and violating Tennessee's implied consent law. There is no evidence of, nor dispute concerning, the manner in which the specific officers with whom Appellant interacted at the roadblock conducted themselves. Rather, this appeal concerns the decision-making process that led to the establishment of the checkpoint and the amount of discretion given to the officer supervising it.
Appellant raised these concerns in an amended motion to suppress evidence derived from the checkpoint. The trial court heard evidence at a hearing on July 9, 2008, and denied Appellant's motion.
Franklin Police Officer David R. Prather was the only witness at the suppression hearing. Officer Prather was the on-site supervisor for the roadblock. He explained that the site for the checkpoint was selected by then-Deputy Chief of the Franklin Police Department, J.D. Sanders. Deputy Sanders selected the site and communicated his decision to Officer Prather during a conversation in Deputy Chief Sanders' office. Officer Prather testified that Deputy Chief Sanders chose the site for the checkpoint based on two criteria: (1) the history of alcohol-related incidents at the site, and (2) the Department's ability to safely conduct a checkpoint at the site. Officer Prather noted that Hillsboro Road had a history of alcohol-related issues, although he conceded that he did not have any statistical analysis to demonstrate that history. Officer Prather said that he had first-hand knowledge of alcohol-related incidents on the road, and he referred to the arrest records maintained in the Department's records management system to support his position. He also suggested that Deputy Chief Sanders based his site decision on that type of first-hand knowledge, explaining "[b]ecause we have had multiple arrests for DUI's on Hillsboro Road, we have had multiple accidents involving alcohol on Hillsboro Road. . . . What we did is we knew we had to be on Hillsboro Road." Therefore, the Department located a stretch of the road that would allow it to conduct the checkpoint safely.
Deputy Chief Sanders did not testify in this case because he has since relocated to New Mexico.
After deciding on a date, time, and location, Deputy Chief Sanders directed Officer Prather to carry out the checkpoint. On June 8, 2007, Officer Prather sent an e-mail to various local media outlets announcing that the Department would be conducting sobriety checkpoints on June 16, 23, and 30 from 9:00 p.m. until 3:00 a.m. the following morning. The notice stated that the checkpoints were part of the Governor's Highway Safety Office's "Booze It and Lose It" campaign and that they would be located "at various locations within the city limits of Franklin." This e-mail resulted in at least two publicized notices in the Tennessean newspaper, one on June 12 and one on June 18.
Officer Prather supervised the checkpoint on June 23, the one at issue in this case. He relied upon Tennessee Department of Safety General Order Number 410-1 as a guideline for conducting the checkpoint. However, because General Order 410-1 was created for use by the Tennessee Highway Patrol, some of its nomenclature and procedures were inapplicable to the Franklin Police Department. Consequently, Officer Prather explained, he disregarded some of 410-1's requirements.
The checkpoint was executed in a formal fashion. Nine uniformed officers, each wearing reflective vests, conducted the stops. Ten marked police cars were present, and all had multiple lights activated: blue emergency lights, headlights, "take-down" lights, alley lights, and spotlights. In addition, the officers placed four-foot by four-foot reflective signs several hundred feet down Hillsboro Road in both directions in order to alert drivers to the checkpoint. The officers stopped every car that passed through in both directions, although one car was waived through without stopping to accommodate a passing ambulance. Traffic was stopped in all four lanes, so vehicles were generally processed four at a time. The officers engaged the drivers in a general conversation and, so long as nothing appeared suspicious, allowed the vehicles to proceed without undue hesitation. A mobile breathalyzer machine was present, but drug dogs were not. Officer Prather supervised the operation, walking up and down the checkpoint the entire time. According to Officer Prather, nothing unusual occurred at the checkpoint, and he had no contact with Appellant during his stop.
Officer Prather memorialized the June 23 checkpoint in a report. The report indicated that 511 vehicles were stopped, nine of which were detained for further investigation. The police arrested three drivers for DUI, one of whom was Appellant. No other arrests were made at the checkpoint, and it was terminated at 12:15 a.m. because Officer Prather determined the checkpoint had made contact with a sufficient number of vehicles. Officer Prather submitted his report to Deputy Chief Sanders, but it does not appear that Deputy Chief Sanders actually approved the report.
After Appellant was indicted, he filed a motion to suppress the evidence derived from the June 23 roadblock. Appellant argued the roadblock violated his state and federal constitutional rights against unreasonable searches and seizures. In particular, he claimed that the June 23 roadblock violated his constitutional rights because (1) the site was improperly selected by an officer that was present at the scene; (2) the officers executing the roadblock decided for themselves what procedures to use; (3) the roadblock was not established to curb a substantial and imminent threat to the safety of motorists; (4) there was no connection between the date, time, and location of the roadblock and its stated purpose; (5) there was no advance notice to the public about the roadblock; and (6) there were no established guidelines for the approval, establishment, supervision, and execution of the roadblock. Thus, according to Appellant, the roadblock did not satisfy the requirements established by Tennessee case law.
At the close of the July 9 hearing, the trial court ruled that the evidence derived from the checkpoint should not be suppressed. The court determined that inebriated drivers pose a sufficiently compelling societal interest to justify warrantless checkpoint stops in certain circumstances. It also determined that the checkpoint was an effective mechanism for addressing the public concern.
The gravity of the public concern the Department sought to combat with the roadblock was not an issue raised by the defense at the hearing; the trial court raised the issue sua sponte. However, defense counsel conceded that the societal interest at issue in DUI roadblock cases is sufficiently compelling to withstand constitutional scrutiny.
The court, however, hesitated about the reasonableness of the checkpoint's execution. The court specifically stated that it believed that Officer Prather "probably [had] enough control over the checkpoint [to] raise the suspicion of both this Court and the Supreme Court." In particular, the court focused on Officer Prather's testimony that he believed he could disregard some of the requirements of General Order 410-1 when he thought it did not apply. However, the court was satisfied that Officer Prather did not "suspend[] the rules and exercise[] that authority that he might have had. . . . He didn't do anything that would cause this Court to believe that motorists were not treated fairly and appropriately according to the guidelines that were in place." Thus, the court concluded, Officer Prather "may have had a little bit more latitude than the Supreme Court would like, but it's — it was never used."
The court also expressed concern about the degree to which Officer Prather was involved in the site selection for the checkpoint. The court noted that, although Officer Prather testified that Deputy Chief Sanders actually selected the location, when Officer Prather attempted to explain why the site was chosen, he referenced his own experience, not information used by Deputy Chief Sanders. Nevertheless, the court was satisfied that there was sufficient data to support Deputy Chief Sanders' conclusion, and it noted that Officer Prather's personal knowledge further buttressed that conclusion. The court stated that those two facts indicated that the site was "specifically chosen . . . because of legitimate concerns by the Sheriff and City of Franklin about impaired motorists along that stretch of road." Thus, despite its concerns, the court denied the motion.
The trial court reduced its decision from the suppression hearing to a written order on July 11, 2008, and on September 16, Appellant entered a guilty plea. Pursuant to the negotiated plea agreement, the trial court entered an order under Rule 37(b)(2) of the Tennessee Rules of Criminal Procedure specifically preserving Appellant's challenge to the constitutionality of the search and seizure conducted at the sobriety checkpoint. The issue is properly preserved under Rule 37(b)(2).
II. Analysis
The trial court's findings of fact in a suppression hearing will be upheld on appeal unless the evidence preponderates against those findings. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).
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.
Id. However, the application of the law to the trial court's findings of fact is a question of law subject to de novo review.State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).
Both the Fourth Amendment to the United States Constitution and article 1, section 7 of the Tennessee Constitution prohibit unreasonable searches and seizures by law enforcement officers. The purpose of these provisions is to "`safeguard the privacy and security of individuals against arbitrary invasions of government officials.'" State v. Downey, 945 S.W.2d 102, 106 (Tenn. 1997) (quoting Camara v. Municipal Court, 387 U.S. 523, 528, 87 S. Ct. 1727, 1730 (1967)). Police activity involving the stop of an automobile qualifies as a seizure under both the state and federal constitutions. Delaware v. Prouse, 440 U.S. 648, 653, (1979); State v. Westbrooks, 594 S.W.2d 741, 743 (Tenn. Crim. App. 1979).
Ordinarily, a law enforcement officer may conduct a brief investigatory stop only if the officer has a reasonable suspicion based upon specific and articulable facts that a criminal offense has been, is being, or is about to be committed. Terry v. Ohio, 392 U.S. 1, 21, (1968). However, in Downey, our supreme court recognized that "[a] roadblock seizure . . . is a departure from . . . fundamental constitutional principles [because] [i]t permits officers to stop and question persons whose conduct is ordinary, innocent, and free from suspicion." 945 S.W.2d at 104. The court determined that the constitutionality of such seizures depends upon a balancing of (1) the public interest served by the seizure, (2) the degree to which the seizure advances that public interest, and (3) the severity of the interference with an individual's liberty. Id. at 107. The court concluded that the State has a compelling interest in alleviating drunk driving and that sobriety checkpoints are effective tools for detecting impaired drivers. Id. at 110.
On appeal, Appellant contends that the checkpoint at issue here was not an effective means of achieving the State's compelling interest in combating intoxicated motorists because it did not net many DUI arrests as a percentage of the total number of vehicles stopped. This argument was not raised at the trial court, nor is it persuasive. The standard to meet this prong of the Downey test is whether "one can fairly say that [the roadblock] contributes in a meaningful way to achieving the sufficiently compelling state interest." State v. Hayes, 188 S.W.3d 505, 515 (Tenn. 2006) (alterations added; original brackets omitted). Our supreme court has already held that "roadblocks are effective tools in advancing the State's interest in solving" the danger of intoxicated driving.Downey, 945 S.W.2d at 110. See also State v. Varner, 160 S.W.3d 535, 541 (Tenn. Crim. App. 2004). In addition, this particular checkpoint both resulted in arrests and, because of its prior publicity, may have deterred others from driving while intoxicated. The issue is not whether the checkpoint was the most effective means of achieving the State's goal, see State v. Hicks, 55 S.W.3d 515, 531 (Tenn. 2001), and we believe the State has shown a "meaningful link" between the establishment of the checkpoint and the State's compelling interest in detecting intoxicated drivers, see id. at 532; see also Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 455, (1990). We are thus satisfied that this checkpoint has met the second prong of theDowney test. Therefore, the first two prongs of the balancing test weigh in favor of finding sobriety checkpoints constitutional.
In analyzing the third prong of the test, Downey made clear that a court must examine whether the checkpoint was "established and operated in accordance with predetermined guidelines and supervisory authority that minimize the risk of arbitrary intrusions on individuals and limit[s] the discretion of law enforcement officers at the scene." 945 S.W.2d at 112. Downey was concerned with protecting reasonable expectations of privacy from "arbitrary invasions solely at the unfettered discretion of officers in the field." Id. at 110. As a result, it is essential that there be "genuine limitations upon the discretion of the officers in the field." Hicks, 55 S.W.3d at 533.Downey listed several characteristics of roadblocks that are consistent with constitutional standards. 945 S.W.2d at 110-11. In particular, "the very decision to hold a drunk-driver roadblock, as well as the decision as to its time and place, should be matters reserved for prior administrative approval, thus removing the determination of those matters from the discretion of police officers in the field." Id. at 111 (quotingCommonwealth v. Tarbert, 535 A.2d 1035, 1043 (Pa. 1987)). Furthermore, "the question of which vehicles to stop at the roadblock should not be left to the unfettered discretion of police officers at the scene, but instead should be in accordance with objective standards prefixed by administrative decision."Id.
Our supreme court has since refined its analysis inDowney. First, in Hicks, the court reaffirmedDowney's three-pronged analytical approach. See 55 S.W.3d at 525-26. However, after noting the "several characteristics" of constitutional roadblocks mentioned in Downey, the court went on to say:
[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 (citations omitted; emphasis added). See also Hayes, 188 S.W.3d at 516 (quoting the same language).Hicks also noted that "active and careful supervision is critical to the constitutional reasonableness of any roadblock." 55 S.W.3d at 536.
This court addressed the Downey analysis inVarner. Again, after reaffirming Downey's analytical framework, see 160 S.W.3d at 541, we added that "[t]he central concern with suspicionless seizures . . . is not how an officer exercises his or her discretion in the field, but whether he or she exercises an inordinate amount of it. Any deviation from established guidelines indicates that an on-site officer's discretion is not properly limited,"id. at 547 (emphasis in original).
We interpret these precedents to mean that there are three steps in evaluating the third prong of the Downey test. First, the court must decide whether the initial decision to conduct a roadblock was made by an authority superior to the officers in the field. Second, the court must decide whether the officers conducting the roadblock decided for themselves what procedures to use, or if they adhered to neutral standards previously fixed by an administrative decision or regulation. These two steps can be outcome-determinative in that the failure to abide byDowney and its progeny with respect to either necessarily terminates our inquiry and invalidates the stop. But if the roadblock at issue survives the first two steps, the court then examines the execution of the roadblock to determine if it has the other characteristics of a constitutionally permissible roadblock. However, unlike in the first two steps, the presence or absence of a particular characteristic is not necessarily outcome determinative. With that framework in mind, we begin our analysis of the checkpoint in the present case.
A. The Decision To Establish The Roadblock
As noted above, the trial court expressed particular concern about the degree to which Officer Prather was involved in the selection of the time and location of Hillsboro Road checkpoint. The trial court's concern seems to be centered on the deviation from the site selection procedure in General Order 410-1. The Order provides that "[i]ndividual site selections will be based on historical statistical evidence and the knowledge of alcohol related or other types of crashes where impairment was indicated as a contributing factor." Here, Officer Prather testified that Deputy Chief Sanders made the decision. But he also testified that there was no "historical statistical evidence" beyond the Department's records management system upon which Deputy Chief Sanders could base that decision. Officer Prather then testified about his own knowledge of problems in the area. This deviation from 410-1, and Officer Prather's testimony about his own experience, suggested to the trial court that Officer Prather had a significant role in selecting the Hillsboro Road site.
The discussions in our case law about deviations from the roadblock procedures is separate from the discussions about who makes the determination to establish a roadblock in the first instance. See, e.g., Varner, 160 S.W.3d at 547. The question of deviation from the procedures concerns the conduct of the officers who actually performed the roadblock, and it comes later in the analysis. Appellant's arguments about deviations from General Order 410-1 in the site selection process are therefore misplaced. The critical question under our case law at this point is who made the decision. See Hicks, 55 S.W.3d at 534. There is unambiguous evidence in this case that Deputy Chief Sanders selected the site and that he was not present when the roadblock was actually conducted. Officer Prather did not select the site, nor did any other officer present at the scene. Furthermore, the trial court was satisfied that Deputy Chief Sanders' selection was based on the Department's experience regarding issues on Hillsboro Road. The court specifically noted that, although that experience was largely relayed through Officer Prather's testimony, the court was satisfied that Chief Deputy Sanders "concurred" with that assessment. Consequently, the trial court did not find a significant deviation from General Order 410-1 in the site selection process. As noted above, we defer to the trial court's evaluation of the evidence as the finder of fact. Moreover, the record indicates that the site was selected well in advance and the decision was conveyed to Officer Prather during a conversation in Deputy Chief Sanders' office. Therefore, we conclude that the record demonstrates that the decision to establish the roadblock, and in particular its time and place, was not made by an officer that actually executed the roadblock. Rather, it was made by an authority superior to the officers in the field, Deputy Chief Sanders. As a result, the roadblock survives the first step of the scrutiny. See id.
B. Whether The Officers On The Scene Decided The Procedures To Use For Themselves
The next step in the analysis is to determine whether the officers on the scene decided for themselves what procedures to use in executing the roadblock. As noted above, "the officers [must] adhere[] to neutral standards previously fixed by administrative decision or regulation." Hicks, 55 S.W.3d at 533. In this case, Officer Prather testified that the officers used General Order 410-1 as a guide. But because 410-1 was written for use by another law enforcement agency, whose procedures and nomenclature did not exactly match the Franklin Police Department's hierarchy, it was not possible for the Department to follow 410-1 to the letter. That is particularly apparent with respect to certain approval processes. Yet Downey and its progeny are concerned with limiting the discretion of the officers who are actually executing the roadblock. The record does not indicate that the officers conducting the checkpoint deviated from 410-1. The only deviations from 410-1 concerning the execution of the checkpoint that Appellant notes are that (1) it lasted longer than two hours, without approval from the police chief, and (2) Officer Prather decided to terminate the checkpoint after two hours and fifteen minutes. Neither of these facts render the roadblock invalid. First, Chief Deputy Sanders initially approved the checkpoint to operate from 9:00 p.m. until 3:00 a.m. Thus, the duration was approved by an authority superior to the officers in the field, and it was made in advance. Second, Officer Prather's decision to terminate the checkpoint does not contravene General Order 410-1. The Order addresses only the minimum duration (one hour), the maximum duration without approval (two hours), and the site supervisor's power to terminate the checkpoint because of inclement weather. It is silent as to the site supervisor's authority to shut down the checkpoint based on his determination that sufficient contact had been made with the general public. Given that silence, and Downey's primary concern with limiting the discretion of the officers who are actually conducting the stops, we do not believe Officer Prather's decision to terminate the checkpoint constitutes a deviation from the procedure the Department chose to follow (General Order 410-1) warranting invalidation of this stop. In short, the officers executing the checkpoint in this case adhered to a predetermined procedure, and therefore satisfied the second essential component described inHicks.
It is not unusual for a local law enforcement agency to rely upon a set of procedures crafted by a different governmental entity. Indeed, General Order 410-1 is routinely used by local law enforcement agencies throughout the state.See, e.g., State v. Margie Lynn Clark, No. M2005-02001-CCA-R3-CD, 2006 WL 3044157, at *3 (Tenn. Crim. App. at Nashville, Oct. 20, 2006).
Appellant's standing to challenge this aspect of the roadblock is questionable anyway because he was stopped at 10:54 p.m., well before the two-hour window had elapsed.
C. Characteristics Of This Roadblock
Having determined that a supervising authority approved the initial decision to establish the checkpoint and that the officers executing the checkpoint adhered to a predetermined neutral procedure, we must now decide whether the procedures used by the officers demonstrate that the warrantless, suspicionless searches here were constitutionally reasonable. It is the State's burden to show they were. State v. Cross, 700 S.W.2d 576 (Tenn. Crim. App. 1985). As noted above, Tennessee's case law has outlined several traits to consider in our analysis. For instance, Downey mentioned several characteristics that denote a roadblock is constitutionally permissible, including: (1) stopping all cars traveling in both directions, thereby limiting the discretion of the officers on the scene as to which vehicles to stop; (2) the use of safety measures to warn approaching motorists, as well as setting up the roadblock in a highly visible and safe area; (3) the use of uniformed officers and marked police cars with their emergency lights engaged; and (4) advanced publicity of the checkpoint. See 945 S.W.2d at 110-11. See also Hicks, 55 S.W.3d at 533. While the presence of these traits supports a finding that the checkpoint was constitutional, "[n]ot every factor must weigh in favor of the state to uphold a given roadblock, nor is any single one dispositive of the issue." Downey, 945 S.W.2d at 110. In addition,Hicks also listed several characteristics that make a roadblock constitutionally suspect, such as: (1) using the roadblock to search for crimes beyond the stated purpose of the checkpoint; (2) officers not clearly conveying to each driver why they were stopped at the checkpoint; (3) failing to post signs warning motorists of the checkpoint ahead; and (4) officers not using proper safety measures, including wearing safety vests, using flashing batons, and providing sufficient lighting from their police vehicles. See 55 S.W.3d at 535. In addition, Hicks noted that the supervising officer must adequately supervise the operation as a whole. See id. at 536.
Here, there is little question that characteristics of the Department's checkpoint indicate that it was constitutionally permissible. As noted above, the officers adhered to the procedures outlined in General Order 410-1. The Department gave advanced notice of the checkpoint to the media. Nine uniformed officers conducted the individual stops, and Officer Prather, also in uniform, actively patrolled the checkpoint. All of the officers wore reflective vests. The officers used the lighting systems, including the emergency lights, on their ten marked police vehicles to illuminate the checkpoint. They also posted state-regulated warning signs on Hillsboro Road to alert oncoming motorists. Further, while the checkpoint was placed in a highly visible and safe location, it was also situated in a location that provided alternate routes around the checkpoint. Every single car that entered the checkpoint from either direction was stopped. The lone exception was a car that was waived through to provide room for an emergency vehicle to pass. When the officers approached each vehicle, they engaged in a brief conversation and, so long as the encounter did not raise a reasonable suspicion, the vehicles were promptly allowed to pass. For those cars that were detained, there was a breathalyzer machine available if needed. But there were no drug dogs at the checkpoint, suggesting that the officers did not use the DUI checkpoint as a pretext for investigating other crimes. All of these characteristics indicate that this checkpoint was conducted in a uniform, methodical fashion. Furthermore, Appellant has pointed us to no specific incidents with respect to his stop-or any other stop at this checkpoint for that matter-that would suggest that this checkpoint was constitutionally suspect.
The facts listed above demonstrate that this checkpoint was conducted in a way that provided "genuine limitations" on the discretion afforded the officers in the field who actually conducted the stops. Hicks, 55 S.W.3d at 536. On the record before us, the motorists stopped at this checkpoint cannot claim that their reasonable expectations of privacy were "subject to arbitrary invasions solely at the unfettered discretion of officers in the field," which is the motivating concern in Downey. 945 S.W.2d at 110. On the contrary, the officers conducted the checkpoint "pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers." Id. We therefore conclude that the stop at issue here did not violate Appellant's constitutional protections against unreasonable searches and seizures, and the trial court did not err in denying the motion to suppress.
III. Conclusion
Based upon the record and the parties' briefs, we affirm the judgment of the trial court.