             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE             FILED
                           NOVEMBER 1998 SESSION
                                                         February 8, 1999

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk
STATE OF TENNESSEE,                )
                                   )    C.C.A. NO. 01C01-9803-CC-00141
             Appellee,             )
                                   )    ROBERTSON COUNTY
VS.                                )
                                   )    HON. ROBERT W. WEDEMEYER,
FREDDIE RAY GUYE,                  )    JUDGE
                                   )
             Appellant.            )    (Driving Under the Influence -
                                   )    Second Offense; Driving
                                   )    on Revoked License)



FOR THE APPELLANT:                      FOR THE APPELLEE:


MICHAEL R. JONES                        JOHN KNOX WALKUP
District Public Defender                Attorney General & Reporter
110 Sixth Ave., West
Springfield, TN 37172                   TIMOTHY BEHAN
                                        Asst. Attorney General
                                        Cordell Hull Bldg., 2nd Fl.
                                        425 Fifth Ave., North
                                        Nashville, TN 37243-0493

                                        JOHN W. CARNEY
                                        District Attorney General

                                        DENT MORRISS
                                        Asst. District Attorney General
                                        Main St.
                                        Springfield, TN 37172




OPINION FILED:



AFFIRMED


JOHN H. PEAY,
Judge
                                       OPINION



              The defendant was found guilty in a bench trial of driving under the

influence (second offense) and driving on a revoked license. The trial court sentenced

the defendant to serve sixty days of an eleven month, twenty-nine day sentence for

driving under the influence. The defendant was also sentenced to sixty days to be served

concurrently for driving on a revoked license. The defendant now appeals and argues

that the trial court erred in ruling that the roadblock set up by White House police officers

was constitutional. After a review of the record and applicable law, we find no merit to

the defendant’s contention and thus affirm the judgment of the lower court.



              On June 30, 1995, the defendant was stopped at a roadblock conducted

by police officers of White House, Tennessee. When the defendant stopped, Officer

Campbell approached his car. Officer Campbell testified that he smelled alcohol on the

defendant’s breath and asked him to pull to the side of the road. Officer Campbell then

performed three field sobriety tests on the defendant, all of which indicated that the

defendant was under the influence of alcohol.          The defendant was arrested and

subsequently indicted.



              The defendant contends that the roadblock at which he was stopped was

unconstitutional in that it did not conform to predetermined operational guidelines and did

not have the proper supervisory authority present as required by State v. Downey, 945

S.W.2d 102 (Tenn. 1997). In Downey, the Tennessee Supreme Court held that

              a sobriety roadblock, although a seizure, can be a reasonable
              seizure under the Tennessee Constitution, provided it is establ-
              ished and operated in accordance with predetermined operational
              guidelines and supervisory authority that minimize the risk of arb-
              itrary intrusion on individuals and limit the discretion of law enforce-
              ment officers at the scene.


                                             2
Downey, 945 S.W.2d at 104.



                In this case, the White House police department had procedural guidelines

in place at the time of the roadblock during which the defendant was stopped. The

guidelines provided that prior to setting up a roadblock, the chief of police or the next

immediate supervisor would be notified of the roadblock. In addition, the procedures

required that before any roadblock was set up, prior permission must be obtained from

the chief of police or the next immediate supervisor. The guidelines further required that

the roadblocks be conducted in accordance with constitutional mandates, that driver

licenses could not be checked without probable cause to arrest or cite the driver for an

offense, and that there would be no random stops.



                The roadblock set up by the White House police officers on June 30, 1995,

complied with these procedural guidelines. The officers notified and obtained permission

for the roadblock from either Chief Mann or Sergeant Benton.1 Citizens’ driver licenses

were not checked unless the police had probable cause to arrest or issue a citation to the

driver. In addition, each car that came through the roadblock was stopped so that there

would be no random stops.



                The defendant contends that because the procedural guidelines did not

provide for roadblocks to be publicized in advance, the guidelines do not meet the

constitutional requirements set out in Downey. However, the lack of publicity is only one

factor to be considered when determining the reasonableness of a roadblock. See

Downey, 945 S.W.2d at 111. It is not, in and of itself, determinative.




        1
         Chief Mann is the chief of police of the city of White House and Sergeant Benton was the next
immediate supervisor in charge in Chief Mann’s absence.

                                                  3
              The defendant further contends that the procedures do not require prior

approval of supervisory authority, but instead only require notification and, as such, the

guidelines do not meet the standards set out in Downey. However, the procedural

guidelines specifically state that “[n]o police officer employed by the White House Police

Department shall/will set up a roadblock or assist any other Agency without prior

permission from the Chief of Police or the next supervisor that may be in charge in the

absence of the Chief.” This guideline requires the approval of, not just the notification to,

supervisory authority. As such, this contention is without merit.



              The defendant contends that because the procedural guidelines give the

officer in the field the power to choose the location, the timing, and the moving of

roadblocks, they are unconstitutional. However, the guidelines only give the officer in

charge, not just any officer in the field, the power to choose a new location for a

roadblock. In addition, the timing of the roadblock at issue was set out and approved by

a supervisor before the actual roadblock. This satisfies the standard of supervisory

authority set out in Downey, 945 S.W.2d at 110-11.



              The defendant also contends that the roadblocks are unconstitutional

because the procedural guidelines do not provide for supervisory authority to be present

at the scene. However, Downey does not require that a supervisory authority be present

at the scene, only that there be supervisory authority guiding certain decisions so as to

limit the discretion of officers in the field. In the case at hand, Sergeant Benton, the

immediate supervisor under the chief of police, was present during the roadblock. The

defendant contends that Sergeant Benton does not qualify as a supervisory authority

because he is charged with patrol duties in addition to supervisory duties. However,

Sergeant Benton’s position is as a supervisor immediately below the chief of police. As



                                             4
such, he is a supervisory authority and, as he was in charge of the roadblock at issue, the

roadblock was sufficiently supervised so as to limit the discretion of officers in the field.

Downey, 945 S.W.2d at 110-11.



              In sum, the roadblock at issue was operated in accordance with established

procedural guidelines, supervisory authority authorized and conducted the roadblock,

there was no evidence of any arbitrary intrusion on individuals, and the discretion of

officers at the scene was limited by the supervising officer. Therefore, the roadblock

meets the requirements set out in Downey and is valid under the Tennessee Constitution.



              Accordingly, we affirm the judgment of the trial court.




                                                  _________________________________
                                                  JOHN H. PEAY, Judge



CONCUR:



______________________________
GARY R. WADE, Presiding Judge



______________________________
JERRY L. SMITH, Judge




                                             5
