           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                         APRIL 2000 SESSION

                  STATE OF TENNESSEE v. JOE W. STEWARD

                   Direct Appeal from the Circuit Court for Lewis County
                            No. 6004 Cornelia A. Clark, Judge


                    No. M1999-01284-CCA-R3-CD - Filed August 18, 2000


Because the defendant, Joe W. Steward, was lawfully stopped at a traffic enforcement roadblock,
his conviction for driving under the influence, second offense, is affirmed. The issue reserved on
appeal by the defendant does not warrant suppression of the evidence.

            Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed.

GARY R. WADE, P.J., delivered the opinion of the court, in which JERRY L. SMITH and JOHN
EVERETT WILLIAMS, JJ., joined.

Gary M. Howell, Columbia, Tennessee, for the appellant, Joe W. Steward.

Paul G. Summers, Attorney General & Reporter, Marvin E. Clements, Jr., Assistant Attorney
General, and Jeffrey L. Long, Assistant District Attorney General, for the appellee, State of
Tennessee.


                                            OPINION

        The defendant, Joe W. Steward, entered pleas of guilt to driving under the influence, second
offense, and possession of a weapon with intent to go armed. The trial court imposed a sentence of
ll months and 29 days with probation after the service of 45 days on the driving under the influence
conviction. There was no sentence on the other offense but the weapon was forfeited. The
defendant reserved for appeal the question of whether the stop and search were lawful. See Tenn.
R. Crim. P. 37(b)(2)(i). Because the stop was conducted upon proper authority, with neutral
limitations, and in accordance with the applicable guidelines, there was no constitutional violation.
Thus, the judgment is affirmed.

        On the evening of August 18, 1998, Sergeant Bill Ray and Trooper Michael McAllister
conducted a traffic enforcement roadblock on U. S. 412 East in Lewis County. At approximately
8:00 P.M., Trooper McAllister attempted to stop the defendant, who was driving his vehicle in the
direction of the roadblock. According to Trooper McAllister, the defendant initially slowed his
vehicle, but then accelerated past the trooper before finally stopping in the center of the roadway.
The trooper detected the odor of alcohol emanating from the defendant. Upon questioning, the
defendant acknowledged that he had consumed five beers. He had a cooler which contained nine
more beers in the backseat of the vehicle. Trooper McAllister also found a .357 caliber pistol in the
front seat. After administering field sobriety tests, Trooper McAllister placed the defendant under
arrest. Because the troopers did not have DUI testing equipment at the scene, the defendant was
transported to an ambulatory care center where blood was drawn for chemical testing. . After the
defendant's arrest, the troopers terminated the roadblock. The estimated duration of the roadblock
was from 7:44 P.M. to 8:00 P.M., a total of 16 minutes.

       Sergeant Ray established the location, the timing, and the procedures of the roadblock. There
was no written plan. He confirmed that portable DUI equipment was not at the scene. The troopers
intended to stop every vehicle that was driven through the roadblock, if possible; however, several
cars were able to pass through without being stopped during times that both troopers were occupied
with motorists that had stopped their vehicles.

         Trooper McAllister testified that the purpose of the roadblock was to check for driver's
licenses, commercial vehicle registrations, equipment violations, widths, lengths, and farm
equipment violations. He claimed authority for the roadblock under General Order 410 of the
Department of Safety, which requires the presence of at least two officers in marked patrol cars. The
order also requires the approval of a lieutenant or a sergeant and the activation of the equipment on
the patrol cars. It was Trooper McAllister's testimony that the order required no pre-approved plan
for a traffic enforcement roadblock. He stated that after the completion of such a roadblock, an
activity form must be completed by the supervisor and signed by the district captain. McAllister
testified that he had followed the established procedure and that Sergeant Ray, Lieutenant Dempsey
Holder, and Captain W.C. Thompson had executed the requisite follow-up documentation.

       Trooper McAllister acknowledged that a different procedure was mandated for a sobriety
roadblock. He testified that this process, governed by General Order 410-1, must be pre-approved
by a colonel five days prior to the roadblock. A minimum of six officers must be involved. The
news media must be notified in advance as to the location and length of the roadblock. According
to Trooper McAllister, the procedure requires "no less than three days' prior notice for a sobriety
checkpoint."

         The trial court ruled that while the roadblock in this case did not comply with the
requirements of State v. Downey, 945 S.W.2d 102 (Tenn. 1997), compliance was not necessary
because the roadblock at issue was for traffic enforcement rather than a sobriety checkpoint. The
trial court relied upon a footnote in the Downey opinion which provided that the ruling did not apply
to the constitutionality of General Order 410 or roadblocks for the purpose of checking driver's
licenses:

               Portable DUI testing equipment was not brought to the scene, as
               would be expected if the checkpoint was designed primarily to detect


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                those offenders. No pretext has been shown. General Order 410 has
                been complied with . . . . This court therefore concludes that, on the
                facts presented here, the roadblock was properly established and
                conducted under General Order 410 rather than 410-1 or Downey.
                Therefore, defendant's stop was not unconstitutional and the evidence
                ultimately gathered as a result of that stop should not be suppressed.

         In this appeal, the defendant complains that a roadblock for the purpose of determining the
validity of driver's licenses is unconstitutional. He argues that the state's interest in checking driver's
licenses is not sufficient to warrant a roadblock intrusion on individuals who have the right to be free
from unreasonable searches and seizures. See Brown v. Texas, 443 U.S. 47 (1979); Michigan v.
Sitz, 496 U.S. 444 (1990). The defendant submits that the factors determining the constitutionality
of a roadblock are "the gravity of the public concerns served by the seizure, the degree to which the
seizure advances the public interest, and the severity of the interference with individual liberty." 443
U.S. at 50-51. The defendant contends that whether the roadblock is a sobriety checkpoint or a
traffic enforcement checkpoint, the intrusive effect upon the individual is the same. He cites the
following answers by Trooper McAllister to the questions of the trial judge as supportive of his
claims:

                THE COURT:               Trooper, why did Sergeant Ray, I suppose,
                                         decide to conduct one kind of roadblock
                                         instead of the other?

                McALLISTER:              Usually, all we hold is the traffic enforcement-
                                         type roadblock. The sobriety roadblocks,
                                         410.1, requires a minimum of six officers and
                                         that the colonel pre-approve it five days prior
                                         to that.

                THE COURT:               So you just decided not to do that and you're
                                         going to do the other kind and catch the same
                                         people?

                McALLISTER:              I've been on the - for two years, all I've ever
                                         held is a traffic enforcement-type roadblock.

       In Downey, our supreme court, citing the holding in Brown with approval, observed as
follows:

                A central concern in balancing these competing considerations in a
                variety of 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. . . . To this end, the


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                Fourth Amendment requires that 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.

945 S.W.2d at 107 (quoting Brown, 443 U.S. at 50-51).

        Initially, this stop of the defendant was not based on an articulable and reasonable suspicion
that he was involved in criminal activity. See Terry v. Ohio, 392 U.S. 1 (1968). Both the state and
federal constitutions protect individuals from unreasonable searches and seizures. U.S. Const.
amend. IV; Tenn. Const. art. I, § 7. Any police activity which involves a stop of an automobile
qualifies as a seizure under both the state and federal constitutions. Delaware v. Prowse, 440 U.S.
648 (1979); State v. Westbrooks, 594 S.W.2d 741 (Tenn. 1979).

        In cases similar to this, the United States Supreme Court has substituted a balancing test in
place of the traditional probable cause or articulable and reasonable suspicion of criminal activity
standards utilized to determine the reasonableness of police detentions. See Brown v. Texas, 443
U.S. 47 (1979); United States v. Martinez-Feurte, 428 U.S. 543 (1976); United States v. Brignoni-
Ponce, 422 U.S. 873 (1975). In determining the validity of a detention in roadblock cases, courts
must balance the public interest and the individual's right to be free from the arbitrary interference
of law officers. Absent articulable suspicion or probable cause, the "'seizure [in roadblock cases]
must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of
individual officers.'" State v. Matthew Manuel, No. 87-96-III, slip op. at 2 (Tenn. Crim. App., at
Nashville, Nov. 23, 1988) (quoting Brown, 443 U.S. at 51). In Brown, the Supreme Court held that
a routine driver's license checkpoint served a substantial state interest in regulating drivers on public
roads and highways. Because there is also a substantial state interest in regulating the vehicles on
public roads, a roadblock may be within constitutional guidelines if conducted under General Order
No. 410.

       In this instance, the trial court determined that the state had established that the roadblock
was carried out in a neutral manner compliant with General Order 410. Nothing in the record
suggests that the troopers established the roadblock to specifically detain the defendant or any other
individual. A supervisory officer, Sergeant Ray, was present at the time of the stop. There was
proper documentation of the procedure.

        In State v. David Arthur McCarter, No. 03C01-9406-CR-00240 (Tenn. Crim. App., at
Knoxville, Mar. 13, 1995), this court upheld the conviction for driving under the influence of a
defendant who was stopped at a driver's license checkpoint. The authority was granted in
compliance with General Order No. 410. Later, in State v. David Lynn Hagy, No. 03C01-9505-CR-
00152 (Tenn. Crim. App., at Knoxville, Dec. 5, 1995), this court upheld a conviction for violation
of a habitual traffic offender order as the result of a roadblock conducted pursuant to General Order
410. In each of those instances, this court acknowledged the significant interest of the state in


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regulating the operators of vehicles on public roads. Also, there was proof of compliance with
General Order 410. Because the state has a legitimate interest in traffic enforcement and the
roadblock plan contained explicit, neutral limitations on the conduct of the officers, the stop in this
instance did not violate constitutional protections.

       Accordingly, the judgment is affirmed.



                                                       ____________________________________
                                                       GARY R. WADE, PRESIDING JUDGE




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