STATE of Tennessee, Appellant/Cross-Appellee, v. Sarah Hutton DOWNEY, Appellee/Cross-Appellant.
Supreme Court of Tennessee, at Knoxville.
May 12, 1997.
945 S.W.2d 102
Jerry H. Summers, Summers, McCrea & Wyatt, Chattanooga, for Appellee/Cross-Appellant.
Jonathan D. Cooper, Daniel & Oberman, Knoxville, for Amicus Curiae, Tennessee Association of Criminal Defense Lawyers.
OPINION
ANDERSON, Justice.
We granted this appeal to answer a question of first impression: whether a sobriety roadblock at which police officers stop and question motorists whose prior conduct is unremarkable and free from suspicion, is an unreasonable seizure in violation of
The defendant was arrested for driving under the influence after being stopped at a roadblock in Hamilton County, Tennessee. Prior to being stopped, the defendant‘s conduct was unremarkable and not suspicious. At trial, the defendant moved to suppress the evidence on the ground that the roadblock was unconstitutional because it was an unreasonable seizure in violation of the Tennessee Constitution.1 The trial court overruled the motion. On appeal, the Court of Criminal Appeals concluded that the use of a roadblock is not a per se violation of the Tennessee Constitution. But it held that the
We recognize the State‘s compelling interest in detecting and deterring motorists who drive while under the influence of alcohol. The drunk driver cuts a wide swath of death, pain, grief, and untold injury across the roads of Tennessee. The carnage and tragedy is recorded daily in our newspapers and on our television screens. Indeed, the Legislature at nearly every session has strengthened the driving under the influence laws in recognition of the strong public interest in solving the problem. No one can dispute the tragedy and magnitude of the drunk driving problem or the State‘s interest in eradicating it.
We, therefore, conclude that the use of a sobriety roadblock, although a seizure, 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. As a result, we affirm the Court of Criminal Appeals for the reasons articulated below.
In so holding, we observe that
In order for us to determine whether a seizure which is less intrusive than a traditional arrest is reasonable, we must balance the public interest served by the seizure with the severity of the interference with individual liberty. A central concern of the United States Supreme Court, and other state courts, in this balancing analysis “has been to assure that an individual‘s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field . . . [and] that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979). We agree that this is the appropriate constitutional standard to be applied.
The decision we announce today, which upholds the constitutionality of sobriety roadblocks, also controls our decision on an application for appeal filed in the case of State v. Daniel G. Hampton. In that case, the issue is the same—i.e., whether the sobriety roadblock violated the Tennessee Constitution? We agree with the Court of Criminal Appeals that the roadblock in Hampton did not violate the Tennessee Constitution and that the conviction should be upheld. Accordingly, we deny the Hampton application for appeal by separate order.
BACKGROUND
On August 8, 1992, at approximately 12:00 a.m., Lt. Ronnie Hill of the Tennеssee Highway Patrol and numerous other officers set up a highway roadblock on Hixson Pike in Hamilton County, Tennessee. Hill was assisted by members of the Chattanooga Police Department DUI task force, the Hamilton County DUI task force, and auxiliary officers of the Hamilton County Sheriff‘s Department. Hill did not obtain the approval of a superior officer regarding the establishment, time or location of the roadblock.
According to Lt. Hill, the roadblock was conducted pursuant to written guidelines established by the Department of Safety for drivers’ license checks, which he believed applied to roadblocks for any purpose. Hill said that the purpose of his roadblock was to
Hill supervised the operation of the roadblock and gave instructions to the other officers at the scene. Four to six patrol cars with flashing blue lights were positioned on each side of the road and in the center turn lane. The lanes were marked by existing lines on the highway. Hill testified that there was adequate visibility to avoid accidents and congested traffic. All motorists traveling north or south on Hixson Pike were stopped unless traffic became impeded, in which case all traffic was permitted to pass through the roadblock until the congestion was reliеved. According to Hill, officers did not exercise discretion as to which motorists were stopped. Over one hundred cars were stopped in the two hours the roadblock was operated.
The defendant was stopped at the roadblock by Hamilton County Deputy Sheriff Robert Starnes, a member of the DUI task force. Starnes testified that the roadblock was set up to check drivers’ licenses and other traffic violations, but not to check for drunken drivers. He said that the defendant did nothing to arouse his suspicion as she approached the roadblock and that she was stopped for the same purpose and in the same manner as other motorists. He asked to see the defendant‘s drivers’ license and, after smelling the odor of alcohоl and learning that she had been drinking, instructed her to pull to the side of the road. After sobriety testing, the defendant was arrested.
At trial, the defendant moved to suppress the evidence on the grounds that the roadblock was unconstitutional because there was no suspicion that a crime had been committed before the stop and the detention was an unreasonable seizure. The trial court over2ruled the motion and found that the roadblock had been established and supervised by Lt. Hill in accordance with Tennessee Department of Safety General Order 410 for the purpose of detecting unlicensed drivers.
On appeal, the Court of Criminal Appeals found that neither General Order 410 nor any other General Order governing roadblocks was in effect at the time of this stop. Moreover, the court observed that the roadblock in this case was operated from midnight to 2:00 a.m., that a mobile breathalyser unit was on the scene for use during the roadblock, and that virtually every officer at the scene was a member of the City or County DUI task force. Accordingly, the court held that the evidence preponderated against the trial court‘s finding that the roadblock was established under General Order 410 to detect unlicensed drivers.
We agree with the Court of Criminal Appeals’ determination that the evidence in this record preponderates against the trial court‘s finding that the roadblock was established to detect unlicensed motorists. We therefore address the constitutionality of the stop in this case as a sobriety roadblock.3
CONSTITUTIONAL FRAMEWORK
We begin our review by examining the constitutional protections implicated when a citizen is stopped at a highway roadblock. The
Unreasonable searches and seizures—General warrants.—That the people shall be secure in their persons, houses, papers, and possessions, from unreasonable searches and seizures; and that general
warrants, whereby an officer may be commanded to search suspected places, without evidence of the fact committed, or to seize any рerson or persons not named, whose offenses are not particularly described and supported by evidence, are dangerous to liberty and ought not to be granted.
(Emphasis added).
The essence of the prohibition against unreasonable searches and seizures under the
The constitutionality of sobriety roadblocks is a question of first impression for this Court,4 and there is no settled body of state constitutional law directly on point, although there are a number of state court cases which are instructive. Thus, in reviewing the constitutionality of stopping motorists pursuant to a highway roadblock, cases construing the
CONSTITUTIONALITY OF SOBRIETY ROADBLOCKS
We continue our analysis by examining how the United States Supreme Court has interpreted the
Obviously, a formal arrest is a seizure of the person and to be considered reasonable, it must be founded upon probable cause to believe a person has committed a criminal offense. Whether probable cause is present depends upon whether the facts and circumstances and reliable information known to the police officer at the time of the arrest “were sufficient to warrant a prudent man in believing that the [individual] had committed an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964).
The
In analyzing the reasonableness of a seizure less intrusive than a traditional arrest in later cases, the Supreme Court, as it did in Terry, balanced the “public interest against the Fourth Amendment interest of the individual.” 392 U.S. at 20-21, 88 S.Ct. at 1879; United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). The balancing test cited in Terry stemmed from Camara v. Municipal Court, supra, in which the Court weighed three significant factors in invalidating warrantless administrative searches of buildings to detect conditions hazardous to public health and safety: the public interest to be achieved, the ability to achieve the public interest, and the invasion caused to the citizen‘s privacy. 387 U.S. at 534, 87 S.Ct. at 1733.
This balancing approach was applied to a fixed checkpoint stop for the first time in United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). There, the court applied the balancing test to uphold fixed checkpoints near the border at which all vehicles were stopped. The court determined that these checkpoints served a strong government interest by enabling law enforcement officers to detect illegal aliens and that the intrusions on motorists caused by the checkpoint stop were slight. While acknowledging that the stops constituted “seizures,” the court concluded that the checkpoints advanced the law enforcement interest to a greater degree than stops requiring individualized, reasonable suspicion.
Later, Michigan v. Sitz, 496 U.S. 444, 453, 110 S.Ct. 2481, 2485, 110 L.Ed.2d 412 (1990), was the first case where the United States Supreme Court specifically appliеd the balancing analysis and held that a state‘s use of a highway sobriety checkpoint does not per se violate the
After observing that the roadblock stop was a “seizure” under the
A central concern in balancing these competing considerations in a variety оf settings has been to assure that an individual‘s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. [Citations omitted]. To this end, the
Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society‘s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.
Id.
Applying the public interest test to sobriety roadblocks, the Sitz court emphasized the magnitude of the drunk driving problem and the states’ strong interest in solving it. Reviewing the second part of the analysis—the
Finally, with regard to the individual liberty analysis, the court, stressing that the checkpoints were selected pursuant to guidelines and that uniformed police officers stopped every car, concluded that “the measure of the intrusion on [law abiding] motorists stopped briefly at sobriety checkpoints is slight.” Id., 496 U.S. at 451-453, 110 S.Ct. at 2486-2487. Dissenting in Sitz, Justices Brennan and Stevens argued that the majority failed to analyze whether sobriety checkpoints advance the publiс interest to any degree greater than traditional stops based on suspicion and, therefore, the state had failed to show that sobriety checkpoint seizures were reasonable. Id.
SOBRIETY ROADBLOCKS—STATE JURISDICTIONS
A majority of state courts have followed the balancing analysis and have concluded that roadblocks may survive constitutional scrutiny if they are operated under guidelines which minimize intrusiveness and limit officers’ discretion.6
A minority of jurisdictions, however, including Michigan after the United States Supreme Court‘s remand in Michigan v. Sitz, supra, have invalidated roadblocks under state constitutional provisions. Sitz v. Dept. of State Police, 443 Mich. 744, 506 N.W.2d 209 (1993). These courts, while stopping short of holding that all roadblocks are per se unconstitutional, have compared the effectiveness of roadblocks with less intrusive law enforcement methоds and have concluded that the state‘s interest in detecting drunken driving does not outweigh the intrusion on individual liberty or justify departure from traditional stops requiring individual suspicion. See State v. Henderson, 114 Idaho 293, 756 P.2d 1057 (1988); State v. Church, 538 So.2d 993 (La.1989); Ascher v. Commissioner of Public Safety, 519 N.W.2d 183 (Minn.1994); State v. Koppel, 127 N.H. 286, 499 A.2d 977 (1985); State v. Blackburn, 63 Ohio Misc.2d 211, 620 N.E.2d 319 (1993); City of Seattle v. Mesiani, 110 Wash.2d 454, 755 P.2d 775 (1988). One state court has held that roadblocks are per se unconstitutional under its state constitution. Pimental v. Dept. of Transportation, 561 A.2d 1348 (R.I.1989).
Whether upholding or invalidating a sobriety roadblock, nearly every court has used the balancing analysis discussed in Brown v. Texas, supra. Moreover, the courts universally recognize the state‘s significant interest in attempting to alleviate the often tragic consequences of drunk driving. All courts have recognized that there is a very strong societal interest in dealing effectively with the problem of drunk driving.
[I]t is certainly arguable that mere patrol and stoppings based upon the Terry standard do not produce what the Camara Court referred to as ‘acceptable results.’ For one thing, even if a patrolling officer is fortunate enough to be in the vicinity where a drunk driver is operating his vehicle, it does not necessarily follow that the driver will at that particular time drive his car in such a fashion as to create a reasonable suspicion justifying a stop. And the chances of such observation in the first place are rather slight, given the substantial number of intoxicated drivers on the road.
4 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, (3rd ed.1995), at 692. Moreover, courts have stressed that roadblocks further the state‘s interest not only by detecting drunk drivers but also by deterring such behavior, particularly when the roadblock is accompanied by advance publicity. In State ex rel. Ekstrom v. Justice Court, 136 Ariz. 1, 663 P.2d 992, 1001 (1983), the Court noted:
The efficacy of a deterrent roadblock is heightened by publicity in the media.... Such publicity would warn those using the highways that they might expect to find roadblocks designed to check for sobriety; the warning ... should certainly have a considerable deterring effect by either dissuading people from taking ‘one more for the road,’ persuading them to drink at home, or inducing them to take taxicabs. Any one of these goals, if achieved would have the salutary effect of interfering with the lethal combination of alcohol and gasoline. Advance notice would limit intrusion upon personal dignity and security because those being stopped would anticipate and understand what was happening.
(Feldman, J., concurring). Accordingly, the effectiveness of roadblocks to detect and to deter drunk driving has led the majority of courts to favor their use.
Finally, with regard to the intrusiveness of the roadblock, the majority of courts have stressed that roadblocks must be set up in accordance with neutral, objective criteria and operated in a manner that minimizes intrusiveness and the discretion afforded to individual officers. In Michigan v. Sitz, supra, for example, the United States Supreme Court placed emphasis on the fact that the roadblock was operated under written guidelines setting forth procedures governing checkpoint operation, site selection, and publicity that left virtually no discretion to individual officers at the scene, and in Brown v. Texas, supra, the court required a plan embodying explicit, neutral limitations on the conduct of individual officers. As suggested by one commentator, a “police procedure is less threatening to [constitutional] values when the discretionary authority of the police (and thus the risk of arbitrary action) is kept at an absolute minimum.” Moreover, “a police procedure constitutes less of an imposition on [constitutional] interests if that procedure has an appearance of regularity to it and is undertaken with sufficient advance notice” not only to the public but also to the approaching motorist. LaFave, supra, at 696, 702-704.
Several state courts have developed guidelines that govern the questions of minimizing intrusiveness and limiting discretion. Among them are Iowa, California, and Kan-
A list of relevant factors, obviously, can take any length or form. Not every factor must weigh in favor of the state to uphold a given roadblоck, nor is any single one dispositive of the issue. Instead, the overriding question is whether the roadblock was established and operated in a constitutionally reasonable manner that minimized the intrusion on individuals and limited the discretion afforded to officers at the scene.
ANALYSIS UNDER THE TENNESSEE CONSTITUTION
As previously noted, the use of sobriety roadblocks is a question of first impression for this Court and there is no settled body of state constitutional law on the issue. We therefore adopt the balancing test outlined in Michigan v. Sitz, supra, as the appropriate constitutional standard, so that when a seizure occurs, 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.
We recognize the State‘s compelling interest in detecting and deterring motorists who drive while under the influence of alcohol. The statistics are overwhelming. As the court noted in Sitz, more deaths and injuries have resulted from such motor vehicle accidents on our nation‘s highways than from all the wars this country has fought. 496 U.S. at 456, 110 S.Ct. at 2488 (Blackmun, J., concurring).
We, therefore, join the majority of jurisdictions who have concluded that the use of a sobriety roadblock may be used to advance the State‘s compelling interest provided it is established and operated in a manner that minimizes intrusion and limits discretion. In this regard, we observe that the criteria delineated in Loyd, Ingersoll, and Deskins provide the necessary framework for analysis.
We are convinced that roadblocks are effective tools in advancing the State‘s interest in solving a serious public danger. We agree with the Sitz Court that we should not determine which among reasonable law enforcement approaches is the most effective. We leave that decision to politically accountable public officials who are responsible for limited public resources.
In the present case, as the Court of Criminal Appeals observed, some aspects of the roadblock were consistent with constitutional standards. For example, the officers stopped all cars traveling in both directions; when the traffic became congested, motorists were permitted to pass through the roadblock. The discretion of the individual officers at the scene, therefоre, was limited as to what motorists were to be stopped. Similarly, safety measures were apparently taken to warn approaching motorists of the roadblock. The roadblock was set up in a safe and visible area and consisted of uniformed officers and marked patrol cars with flashing blue lights.
All of the remaining evidence, however, indicated that this roadblock was not established and operated in a manner that was consistent with
the possibility of arbitrary roadblocks can be significantly curtailed by the institution of certain safeguards. First 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 thе determination of those matters from the discretion of police officers in the field.... Additionally, 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.
Com. v. Tarbert, 535 A.2d at 1043. Lt. Hill‘s concessions that supervisory and administrative authority was not sought makes it crystal clear that proper measures were not taken to prevent the unfettered discretion of officers at the scene.
The lack of administrative or supervisory decision making was also evidenced by the absence of publicity surrounding the roadblock.8 We believe advance publicity furthers the deterrence rаtionale for the use of a sobriety roadblock. One state court has observed: “It is the publicity about roadblocks [that] is the chief means of deterring driving while intoxicated.” State v. Koppel, 499 A.2d at 982. The State‘s contention that advanced publicity was unnecessary because the roadblock was well-marked at the scene completely ignores the deterrence rationale. Accordingly, this omission in the present case likewise weighs against the reasonableness of the roadblock used to stop the defendant.
Finally, the absence of supervisory or administrative decision-making in this case may have contributed to creating an issue as to the purpose of the roadblock. The testimony in the record is that officers set up this roadblock for the purpose of checking drivers’ licenses in accordance with General Order 410 of the Department of Safety. All the remaining evidence in the record, however, indicates that the actual purpose was the detection of alcohol-impaired motorists. We do not decide whether the roadblock was a “subterfuge” or a “pretext” for investigating drunk drivers, or address the implications that might follow such a finding.9 Instead, this discrepancy in the proof is a reflection of the overall failure by law enforcement officers to establish this roadblock in a manner consistent with administrative and supervisory oversight. We conclude, therefore, that this likewise is a factor that weighs against the reasonableness of this particular roadblock.
The dissent agrees with the constitutional principles we have cited but disagrees with the result we have reached. The primary objection is to our conclusion that the absence of supervisory and administrative authority weighed against the reasonableness of this roadblock. The dissent instead infers from the gathering of county and city law enforcement officers at the scene that the roadblock was conducted with administrative oversight.
We respectfully disagree. There is no evidence in this record as to the supervisory and administrative procedures to be followed in establishing a roadblock. Moreover, Lt. Hill did not testify that he sought or obtained any type of approval from any supervisory officer; had he done so, he could simply have testified as to the authority he was given and the procedures he followed. Instead, his testimony is clear that he alone made the decision to set up this roadblock; he alone determined the manner of its operation; and he alone, as an officer in the field, supervised it
CONCLUSION
We conclude that a highway roadblock which is established and operated in accordance with predetermined guidelines and supervisory аuthority that minimize the risk of arbitrary intrusions on individuals and limit the discretion of law enforcement officers at the scene is valid under the Tennessee Constitution. We, however, agree with the Court of Criminal Appeals that the roadblock in this case was not conducted in accordance with such restrictions and constituted an unreasonable seizure under
BIRCH, C.J., REID, J., and O‘BRIEN, Special Justice, concur.
DROWOTA, J., concurs and dissents with separate opinion.
DROWOTA, Justice, concurring and dissenting.
The majority holds that a sobriety roadblock is valid under the Tennessee Constitution so long as it is established and operated in accordance with prеdetermined guidelines and supervisory authority that minimize the risk of arbitrary intrusions on individuals and limit the discretion of law enforcement officers at the scene. According to the majority, matters which must be determined by prior administrative action to validate a sobriety roadblock include, the decision to hold the roadblock, the selection of the time and place for the roadblock, and the designation of which vehicles will be stopped. Considering those factors, the majority concludes that the sobriety roadblock in this case was constitutionally infirm because an officer in the field, rather than administrative personnel, made the decision to set up the roadblock and selected the site and time for its operation.
I agree with the majority as to the general principles of law governing a sobriety roadblock. To be constitutionally valid, a sobriety roadblock must be established and conducted in accordance with a prefixed, objective plan which limits unfettered police discretion and minimizes the risk of arbitrary intrusions. I write separately to express my disagreement with the majority‘s conclusion that the roadblock in this case lacked administrative oversight and, therefore, was constitutionally infirm.
The facts of this case are permeated with administrative oversight. Although he may have been on patrol that day, Lt. Hill was not simply an officer in the field who arbitrarily decided to have a roadblock. That Lt. Hill had obtained prior administrative approval to conduct a roadblock оn August 8, 1992, at 12:00 a.m., on Hixson Pike, in Hamilton County, Tennessee, is evidenced by the fact that, in addition to the Tennessee Highway Patrol, three different law enforcement agencies participated in the roadblock—the Chattanooga Police Department DUI task force, the Hamilton County DUI task force, and auxiliary officers of the Hamilton County Sheriff‘s Department. Certainly, it was advance planning and not mere coincidence which brought four different groups of law enforcement officials together on the same day, at the same time, and at the same location to conduct a roadblock. The majority characterizes the absence of publicity surrounding this roadblock as evidence of the lack of administrative or supervisory decision making. While it is feasible to conclude, as did the majority, that prior publicity of a sobriety roadblock is a deterrent to potential drunk drivers, another equally feasible conclusion is that the risk of being arrested at an unpublicized sobriety roadblock is also a deterrent to potential drunk drivers. Such being the case, the majority‘s characterization of absence of prior publicity as evidence of a lack of administrative decision making is merely speculation, since administrative officials legitimately could have decided that an
The majority opinion acknowledges that the roadblock otherwise complied with constitutional standards. The officers stopped all cars traveling in both directions; when the traffic became congested, motorists were permitted to pass through the roadblock; the discretion of individual officers at the scene was limited; safety measures were taken to warn approaching cars of the roadblock; the site selected for the roadblock was visible; and the procedure used for the roadblock was safe, involving uniformed police officers and marked patrol cars, with flashing blue lights. Because the facts of this case support the conclusion that Lt. Hill had obtained prior administrative approval to conduct the roadblock, and because this roadblock was conducted in a manner which limited unfettered police discretion and minimized arbitrary intrusions, the roadblock, in my view, complied with constitutional standards.
Therefore, I respectfully dissent from the majority‘s decision and would reverse the Court of Criminal Appeals’ judgment and affirm the trial court‘s denial of the defendant‘s motion to suppress.
FRANK F. DROWOTA, III
JUSTICE