         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT KNOXVILLE             FILED
                        MARCH 1998 SESSION        September 11, 1998

                                                  Cecil Crowson, Jr.
                                )                 Appellate C ourt Clerk
STATE OF TENNESSEE,             )
                                ) C.C.A. No. 03C01-9708-CR-00357
      Appellee,                  )
                                 ) Roane County
V.                               )
                                 ) Hon. E. Eugene Eblen, Judge
KENNETH F. WALKER,               )
                                 ) (Vehicle Search)
      Appellant.                 )
                                 )




FOR THE APPELLANT:               FOR THE APPELLEE:

Patrick Cooley                   John Knox Walkup
Cooley, Cooley & Agee            Attorney General & Reporter
P.O. Box 730
Kingston, TN 37763               Sandy C. Patrick
                                 Assistant Attorney General
                                 Cordell Hull Building, 2d Floor
                                 425 Fifth Avenue North
                                 Nashville, TN 37243-0943

                                 Charles E. Hawk
                                 District Attorney General

                                 Roger Delp
                                 Assistant District Attorney General
                                 P.O. Box 703
                                 Kingston, TN 37763




OPINION FILED: _______________________


REVERSED

PAUL G. SUMMERS,
Judge
                                   OPINION



       The appellant, Kenneth F. Walker, pled nolo contendere to a charge of

possession of over seventy pounds of a Schedule VI controlled substance with

intent to deliver. The appellant, however, reserved the right to appeal a certified

question of law pursuant to Rule 37(b)(2)(I) of the Tennessee Rules of Criminal

Procedure.



       The trial court denied the appellant’s motion to suppress the evidence

obtained during a vehicle search and entered an order allowing the appeal of the

certified question of law. Therefore, the appellant presents two issues for our

review:

       (1) whether the trial court erred in overruling his motion to suppress
       on the ground that the roadblock or checkpoint on the Airport Road
       exit off Interstate 40 in Roane County, Tennessee is not established
       and operated in a manner consistent with Article I, Section 7 of the
       Tennessee Constitution; and

       (2) whether the trial court erred in overruling the appellant’s motion to
       suppress based on a motor vehicle stop, detention, search and
       seizure of the appellant by law enforcement officers in Roane County,
       Tennessee conducting a roadblock in violation of the appellant’s
       rights under Article I, Section 7 of the Tennessee Constitution.



       After carefully reviewing the record in this case, we respectfully reverse

the judgment of the trial court and dismiss the charge against the appellant.



                                     I. FACTS

       On the afternoon of May 18, 1996, Deputy Dennis Worley of the Roane

County Sheriff’s Department, along with jailer Joe Brock of the Roane County

Sheriff’s Department, conducted a roadblock just inside the Roane County line

on the Airport Road exit off of Interstate 40. The appellant was traveling

eastbound on Interstate 40. Two large yellow signs that stated “DUI Drug

Checkpoint Ahead” were placed on eastbound Interstate 40 just west of Airport

Road. One sign was placed in the median, and another was placed on the



                                         -2-
shoulder of the roadway, just before the Roane County line. Just past the signs,

the interstate curves immediately to the right and the Airport Road exit appears.



       At approximately 5:45 p.m., the appellant approached the roadblock that

had been established at the end of the Airport Road exit ramp off of Interstate

40.   According to the testimony at the motion to suppress hearing, Deputy

Worley explained the roadblock to the appellant and determined that the

appellant did not appear to be impaired. Deputy Worley visually inspected the

inside of the appellant’s car and saw no contraband inside the vehicle.



       However, according to Deputy Worley’s testimony, he looked for certain

“indicators” that the appellant may be carrying drugs. First, older model cars

with large cargo areas are suspicious. Second, the key ring for the car had only

two keys on it, indicating, according to Worley, that the car is a rental, that it

belongs to someone else, or that the key ring is being passed to several

individuals so there are no personal keys on there. Third, Deputy Worley noticed

food wrappers in the floorboard of the front passenger’s side of the car and that

there was a large pile of clothing, a pillow, and a blanket on the back seat of the

car. Also, on the seat next to the appellant were a cellular telephone, a road

atlas, and some handwritten directions on a scratch pad. In addition, according

to Deputy Worley, the appellant had several red peppers, which some people

believe mask odor and prevent drug-sniffing dogs from detecting drugs,

scattered along the dash of his vehicle.



       During his stop of the appellant, Deputy Worley asked the appellant why

he had gotten off the interstate at this remote exit, especially since there were no

restaurants or service stations there. The appellant indicated that he was

sightseeing; and when asked by Worley what sights he was looking for, the

appellant did not offer a reply.




                                           -3-
       Deputy Worley asked the appellant if he could search his car, but the

appellant refused to consent to a search.       Deputy Worley told the appellant that

based on the evidence in plain view in the car, the appellant’s attempt to cover

papers, and his nervous demeanor, the deputy believed he had reasonable

suspicion to allow a canine sniff of the vehicle. Worley told the appellant to pull

his car off the road onto the shoulder.



       Worley told the appellant to stay inside the car, and Brock watched the

appellant so that he did not attempt to flee or use a weapon. Worley got his dog

and had him sniff the appellant’s car. The dog, King, began scratching the trunk

area of the car. Worley returned the dog to his vehicle and then went back to the

appellant’s car. He asked the appellant to step out of the car. Worley did a pat

down search of the appellant and took his car keys from him. W orley and Brock

asked the appellant to stand away from the car while they inspected the trunk.

However, according to Deputy Worley, the appellant apparently would not stand

away from the car, so Brock put the appellant in the back of the patrol car.



       Worley opened the trunk of the appellant’s car and found several bundles

of a substance that smelled like marijuana under a drop cloth. Some of the

bundles were marked according to weight, with the sum totaling about two

hundred pounds. The appellant was then arrested.



                                  II. ARGUMENTS

       The appellant argues that the Roane County Sheriff’s Department’s

roadblock is per se unconstitutional. He contends that the roadblock is “set up

as a ruse” and “not designed to combat the DUI problem that exists in this state.”

He further asserts that the roadblock is intrusive and is basically a “‘searchpoint’

whereby the officers seek to conduct warrantless searches of vehicles that have

lawfully taken the interstate exit.”




                                          -4-
       In support of his argument, the appellant addresses several aspects of the

roadblock. First, the appellant recognizes that the Roane County Sheriff’s

Department has attempted to establish guidelines for sobriety roadblocks, but

contends that the guidelines do not authorize “the scheme employed by Deputy

Worley at the Airport Road exit” nor authorize a checkpoint to search vehicles for

narcotics. Specifically, the appellant notes instructions three through six in

Section III of the department’s guidelines for conducting sobriety roadblocks

(See Appendix A). The appellant asserts that pursuant to the sheriff’s

department’s own guidelines, there was no suspicion that he was impaired from

alcohol or drugs and therefore, would not be a threat to the traveling public.

Thus, pursuant to the Roane County Sheriff’s Department policy, he should have

been allowed to proceed. Instead, Deputy Worley, who testified that he had a

“hunch” that the appellant was concealing contraband, detained the appellant

further.



       The appellant asserts that other aspects of the roadblock were

inconsistent with constitutional standards as well. First, the decision to establish

the roadblock, the location of the roadblock, and the time selected for the

roadblock were all determined by Deputy Worley. Furthermore, the appellant

argues that the procedures used by the sheriff’s department for conducting

sobriety roadblocks were written by Worley and then simply ratified by the sheriff.

Second, supervisory authority to establish the roadblock was not sought. The

appellant cites the procedure that Deputy W orley notified the sheriff by leaving a

phone message or pager message that the roadblock was going to be

established as well as the fact that Deputy Worley would decide who would

participate in the roadblock with him.



       Finally, the appellant notes that as in State v. Downey, 945 S.W.2d 102

(Tenn. 1997), the lack of supervisory decision-making was indicated by the

absence of publicity surrounding the roadblock in this case. Deputy Worley



                                         -5-
testified that there was no publicity surrounding this roadblock. The appellant

emphasizes that all courts that have addressed the constitutionality of

roadblocks have consistently recognized the importance of supervisory authority

in order to minimize the risk of intrusion on individual liberties by officers in the

field. Thus, the absence of publicity is a factor to be considered in determining

the reasonableness of the roadblock in this case.



       The state, however, argues that the roadblock was operated in

accordance with constitutional principles. First, the state notes the Roane

County Sheriff’s Department’s policy and procedure statement for conducting

roadblocks. The state further asserts that “Deputy Worley stated that each time

a roadblock was planned, department policy required him to notify either the

sheriff or the chief deputy sheriff for approval.” Without such supervisory

authority, a roadblock would not be permitted.



       The state contends that the roadblock at which the appellant was stopped

was conducted in accordance with established procedure and with supervisory

permission.    It also notes that Deputy Worley would discuss each roadblock

with the sheriff to ensure that each one was uniform. The state further argues

that the officers at the roadblock usually wore an orange vest with the word

“Sheriff” written across it in black lettering. Furthermore, the state asserts that

the area for the roadblock was well marked with police vehicles: a police car with

its flashing lights on at the scene and the D.A.R.E. wagon, which was marked

with the logo of the Roane County Sheriff’s Department.



       The state maintains that the purpose of the roadblock in this case was to

find alcohol or drug-impaired drivers, not to mislead the public as the appellant

contends. It contends that every car was stopped that took the exit off of

Interstate 40. As each vehicle stopped, Deputy Worley would explain to the

driver that this was a DUI and drug roadblock and engage the person in a



                                          -6-
conversation, trying to detect if alcohol or drug impairment was present. The

state maintains that the detention was very brief, lasting for only a few seconds.



       The state contends that the only similarity in the instant case and Downey

is the lack of local publicity before the roadblock. The state notes that the

absence of publicity is only one factor to be considered when determining the

reasonableness of a roadblock. The state argues, however, that a lack of

publicity surrounding a roadblock does not necessarily make the roadblock

unreasonable; but in many cases, the absence of publicity increases the

deterrent effect upon motorists.



       Therefore, the state maintains that the roadblock in this case was not

established and operated in violation of Article I, Section 7 of the Tennessee

Constitution.



                III. State v. Downey, 945 S.W.2d 102 (Tenn. 1997)



       In addressing the issues presented for our review, we are guided by our

Supreme Court’s decision in State v. Downey, 945 S.W.2d 102 (Tenn. 1997). In

that case, the Court addressed the issue of “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

article I, section 7 of the Tennessee Constitution.” Id. at 103.



       In reaching its decision in Downey, the Court noted that Article I, Section 7

of the Tennessee Constitution, which prohibits unreasonable searches and

seizures, may afford citizens of Tennessee greater protection than the Fourth

Amendment of the United States Constitution. Id. at 106; see also State v.

Jacumin, 778 S.W.2d 430 (Tenn. 1989); Miller v. State, 584 S.W.2d 758 (Tenn.

1979). In Downey, our Supreme Court adopted the balancing test provided in



                                         -7-
Michigan v. Sitz, 496 U.S. 444 (1990) “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.” Downey, 945 S.W.2d at

110. The Court held “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.”

Id. at 104.



       The Court outlined several aspects of the roadblock in Downey that were

consistent with constitutional standards:

       1. Cars traveling in both directions were stopped.

       2. When the traffic became congested, motorists were permitted
       to pass through the roadblock.

       3. The discretion of the individual officers at the scene was
       limited as to what motorists were to be stopped.

       4. The roadblock was conducted in a safe and visible area and
       consisted of uniformed officers and marked patrol cars with
       flashing blue lights.


Id. at 110.   However, several aspects of the roadblock in Downey were not

established and operated in a manner consistent with Article I, Section 7 of the

Tennessee Constitution:

       1. The decision to set up a roadblock was made by an officer
       in the field.

       2. The location for the roadblock and the procedure to be
       used in operating the roadblock were matters left to the
       discretion of an officer in the field.

       3. No supervisory authority was sought or obtained, and no
       administrative decisions were made with regard to these
       critical factors.


Id.


                                          -8-
       Our Supreme Court also observed that two factors present in Downey

indicated a lack of administrative or supervisory decision-making. First, the

presence or absence of publicity surrounding the roadblock is one factor that can

be used in assessing the reasonableness of the roadblock. Id. at 111 n.8.

Second, the Court reasoned that the absence of supervisory or administrative

decision-making may have contributed to creating an issue regarding the

purpose of the roadblock. It noted that the stated purpose for the roadblock in

Downey was to check drivers’ licenses. However, the record revealed that the

actual purpose was to detect alcohol-impaired motorists. The Court emphasized

that “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.” Id. at 111. Thus, the Court concluded

that this discrepancy regarding the purpose of the roadblock was also a factor

that weighed against the reasonableness of the roadblock.



                                   IV. ANALYSIS

       We now address the aspects of the roadblock of the present case. First,

the roadblock in this case was conducted in a remote area just inside the Roane

County line off of Interstate 40. Therefore, on the day in question, only motorists

traveling eastbound on Interstate 40 were affected by the roadblock.



       Second, Deputy Worley testified that he would decide the time and

location of the roadblock and then notify the sheriff of his plan. He further

testified that in all the times that he had conducted a roadblock, the sheriff had

never told him that he could not operate a roadblock when he notified him of his

plan. Deputy Worley also testified that he was instrumental in drafting the

department’s guidelines for conducting a sobriety roadblock. Therefore, it is

clear that Deputy Worley, as an officer in the field who is assigned to the

Narcotics Department of the Roane County Sheriff’s Department, not only makes

the decision to establish a roadblock but also decides the location and the time



                                          -9-
for operating the roadblock. The sheriff merely “rubber stamps” Deputy Worley’s

decision. The sheriff, who has always approved Worley’s roadblocks, never

decided himself whether to establish a roadblock, the location of a roadblock, or

the time for operating the roadblock. Worley admitted that he would decide to

establish a roadblock and would telephone the sheriff or page him to notify him

that he, Worley, was planning to set up a roadblock. In fact, in the state’s brief, it

asserts that “Deputy Worley stated that each time a roadblock was planned,

department policy required him to notify either the sheriff or the chief deputy

sheriff for approval.” (emphasis added). Thus, Deputy Worley, not the sheriff,

planned the roadblock and then the sheriff gave his approval, as he had always

done. Deputy Worley testified that on the day in question, May 18, 1996, he

determined where to establish the roadblock, when to set it up, and then notified

the sheriff on his pager that he was setting up the roadblock on the Airport Road

exit ramp.



         Third, as the Court in Downey observed, the failure to publicize the

roadblock and the possible “pretext” or “subterfuge” involved provide evidence of

a lack of administrative or supervisory decision-making. Deputy Worley testified

that the roadblock in this case had not been publicized. Furthermore, he testified

that the purpose of the roadblock was to check for alcohol-impaired or drug-

impaired drivers. However, the record strongly indicates that the primary

purpose of the roadblock was to detect motorists who might be transporting

drugs.



         Deputy Worley is assigned to the Narcotics Department of the Roane

County Sheriff’s Department. He testified that money received from drug

forfeitures pays for his salary, his drug-sniffing dog and the maintenance of the

dog, the D.A.R.E. wagon, his patrol car, and any other operational expenses

associated with his office. Deputy Worley further testified that the Roane County




                                         -10-
Sheriff’s Department did not have a mobile intoximeter at the time of this

roadblock and still did not have one.



       Fourth, Deputy Worley and jailer Brock were the only two individuals

conducting the roadblock involving the appellant, which Deputy Worley testified

was typically the case. Worley was in his uniform and had a gun on his hip.

Brock also had a gun. The only vehicles present were Deputy Worley’s

unmarked car, which is solid white with tinted windows, that had the D.A.R.E.

wagon attached to it. The D.A.R.E. wagon was marked with the Roane County

Sheriff’s Department emblem. Brock’s car has light bars, stripes, and stars on

the door. The location of the roadblock in this case was a remote area just

inside the Roane County line at the end of an exit ramp off of Interstate 40. A

motorist traveling on the exit ramp could see the roadblock between 100 and 120

yards before having to stop. Despite the state’s assertion, the record contains no

evidence that either one of the two cars present employed flashing blue lights

during the roadblock.



                                V. CONCLUSION

       We conclude that the roadblock in this case was not established and

operated in a manner consistent with Article I, Section 7 of the Tennessee

Constitution as outlined in State v. Downey. We, therefore, need not address

the appellant’s second issue. Accordingly, we respectfully reverse the judgment

of the trial court and dismiss the charge against the appellant.




                                        -11-
                                VI. APPENDIX A

                                 December 8, 1994



ROANE COUNTY SHERIFF’S DEPARTMENT

POLICY AND PROCEDURE FOR SETTING UP SOBRIETY CHECK POINTS



SUBJECT: SOBRIETY CHECK POINTS

I. PURPOSE:

  The purpose of this order is to establish policy, procedures and regulations
  for the commissioned members of the Roane County Sheriff’s Dept.
  concerning the captioned subject.

II. POLICY:

  The policy is to remove impaired drivers from our highways as safely as
  possible with due regard to the safety of the public and the officer(s).

III. INSTRUCTIONS FOR SOBRIETY CHECK POINTS:

  1. Check points will be set up only at the direction of high level
administrative officials.



                                       -12-
   2. The location and/or situqtions [sic] encountered will determine the
plan for which cars to stop. It must be on a systematic, non-random basis.
Such as stopping every car, every second car, etc.

  3. If an approaching driver turns off or makes a U-turn in a safe manner,
no action will be taken against them.

   4. Each car will be approached and the driver informed that you are
conducting this check point looking for persons driving under the influence of
alcohol or drugs. This will be done in a courteous and professional manner.

  5. The stop should be of brief duration.

   6. If no signs of intoxication are found or no indication of contraband,
the driver should be allowed to proceed.

  7. If the officer observes signs of intoxication or observes contraband in the
vehicle, the driver should be directed to the side for further investigation. They
should be moved out of the flow of traffic to avoid traffic hazards, congestion and
delay of those drivers following.

   8. After moving out of the flow of traffic any driver demonstrating signs of
intoxication, the driver will be given the field sobriety test. If they satisfactorily
pass the field sobriety test, they will be released. If the person fails to pass the
field sobriety test, the officer is to obtain their operator’s license and then offer
them the Breath Alcohol Test. Any driver who registers .10 on the breath alcohol
test will be arrested and booked for DUI. Those drivers who show signs of
intoxication but do not register .10 on the breath alcohol test may be released or
charged if their actions indicate that they cannot drive in a safe manner. This will
be done at the discretion of the ranking officer on the scene.

  9. If the officer has reasonable suspicion, supported by specific and articulable
facts to believe that contraband is present, regardless of the fact that a roadblock
was being used, then the driver may be asked to sign a consent to search.
Possible use of canine detectors may be employed in these vehicle searches.

  10. If a subject is arrested he/she may sign a release form authorizing the
officer to leave his car at the scene in a safe location if possible or the car will be
towed by a wrecker of driver’s choice or next scheduled towing serivce [sic] on
the County rotation. Only exceptions to this will be drug seizures which will be
towed by one of the County’s pre-determined inpound [sic] services.




                                           _______________________
                                           David B. Haggard
                                           Sheriff of Roane County




                                         -13-
                                          _______________________
                                          PAUL G. SUMMERS, Judge




CONCUR:




______________________________
JOHN H. PEAY, Judge




______________________________
CORNELIA A. CLARK, Special Judge




                                   -14-
