        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                       Assigned on Briefs September 15, 2015

       STATE OF TENNESSEE v. KENNETH DWAYNE MITCHELL

                Appeal from the Criminal Court for Sullivan County
                       No. S61084     R. Jerry Beck, Judge


               No. E2014-02542-CCA-R3-CD – Filed December 3, 2015


Following his arrest at a sobriety checkpoint on October 7, 2011, the Defendant, Kenneth
Dwayne Mitchell, was indicted for driving under the influence (“DUI”), possession of
drug paraphernalia, and driving with a blood alcohol content (“BAC”) of .08% or greater
(“DUI per se”). See Tenn. Code Ann. §§ 39-17-425 & 39-17-425. Following a jury trial,
the Defendant was convicted of DUI per se and acquitted of the remaining charges. In
this appeal as of right, the Defendant contends that the trial court erred in denying his
motion to suppress, arguing that his seizure at the sobriety checkpoint was unreasonable
because adequate notice of the roadblock was not provided. Discerning no error, we
affirm the judgment of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ALAN E. GLENN, JJ., joined.

Stephen M. Wallace, District Public Defender; and Terry L. Jordan, Assistant District
Public Defender, for the appellant, Kenneth Dwayne Mitchell.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Barry Staubus, District Attorney General; and Benjamin Rowe, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                              FACTUAL BACKGROUND

        The Defendant‟s arrest followed his stop at a sobriety checkpoint conducted by the
Tennessee Highway Patrol (“THP”) in Sullivan County. Prior to trial, the Defendant
filed a motion to suppress evidence obtained as a result of his seizure at the checkpoint,
arguing that his seizure failed to pass constitutional muster. In particular, the Defendant
asserted that advance publicity of the roadblock was provided on October 2, 2011, five
days prior to the roadblock, which took place on October 7, 2011. According to the
Defendant, this violated the THP‟s General Order 410-1, which provides guidelines for
the establishment and administration of sobriety checkpoints and requires that the THP
notify the news media no less than two weeks prior to the roadblock.

        At the hearing on the motion to suppress, Major Danny Talley of the THP testified
that he was a district captain on October 7, 2011, and that one of his duties in that role
was to approve requests for checkpoint locations. According to Major Talley, the process
for site selection is dictated by Order 410-1, which directs that troop lieutenants utilize
“data-driven analysis” to select the best sites for checkpoints. He said that relevant data
points are “high crash areas, previous DUIs in that particular area, . . . and hazardous
moving violations.”

       In this case, THP Lieutenant Derrick Watson submitted the request for the sobriety
checkpoint. Major Talley testified that Lt. Watson visited the site—U.S. 11E at Allison
Road—and filled out a form called a “site selection/removal checklist,” which lists
qualifying criteria for checkpoints, and Major Talley approved the checkpoint request.
Major Talley did not actively participate in, and was not physically present at, the
roadblock.

        THP Sergeant Jeff Anderson testified that he was responsible for the THP‟s
administrative and logistical work within a thirteen-county district. Sgt. Anderson
identified an e-mail sent on September 21, 2011, from THP Lieutenant Stephen Street to
the Kingsport Times-News (“Times-News”) notifying the newspaper of the sobriety
checkpoint. Sgt. Anderson also identified another email providing notice of the
checkpoint which had been sent to the Bristol Herald Courier (“Herald Courier”) on the
same date. In particular, the press release stated that “[t]he Tennessee Highway Patrol
will be conducting sobriety roadside safety checkpoints during the week of October 2,
2011, on U.S. 11E at Allison Road in Sullivan County.” Sgt. Anderson produced a copy
of an article from the Times-News, published on Sunday October 2, 2011, which
announced the upcoming roadblock. In particular, the paper printed that the THP would
“conduct roadside safety checkpoints on U.S. Highway 11-E at Allison Road in Sullivan
County through Oct[ober] 8.” There was no proof introduced that the Herald Courier ran
a notice of the checkpoint.

      Sgt. Anderson testified that it was departmental policy to send out a notice to the
news media at least two weeks prior to the date of the roadblock. However, Sgt.
Anderson said that the THP had no control over whether the media outlets would actually



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publish notice of a particular roadblock. In this particular case, the newspapers were
notified seventeen days prior to the date of the sobriety checkpoint.

        THP Sergeant Paul Mooneyham, Jr., testified that he was the “site supervisor” for
the roadblock and that one of his responsibilities in that role was to provide notification
of the sobriety checkpoints to the media. Sgt. Mooneyham testified that the protocol for
notifying the media included his sending a media notification form to the THP‟s
administrative personnel, who then forwarded the notice to “the immediate outlets.” The
form must be submitted to headquarters no later than thirty days prior to the roadblock.
He testified that this protocol was followed in the instant case. Sgt. Mooneyham testified
that if the sobriety checkpoint had not been properly publicized pursuant to Order 410-1,
it would not have been conducted.

        Prior to the roadblock, Sgt. Mooneyham “briefed” the participating officers
regarding particular policies pertinent to a sobriety checkpoint. Sgt. Mooneyham
testified that he was in charge of “safety” at the sobriety checkpoint and that he was
present at the time of the roadblock, although his job was supervisory only, and he did
not “actively participate in the stoppage of cars.” Sgt. Mooneyham explained that large,
orange signs reading “sobriety checkpoint ahead” were placed about one-hundred feet
from the checkpoint site and that traffic cones were set out to control the flow of traffic.
Sgt. Mooneyham testified that, at the time that a request for a roadblock is submitted, a
request can be made to stop all vehicles, every fifth vehicle, or some other pattern. In this
case, Sgt. Mooneyham requested and received approval to stop every vehicle.

       Sgt. Mooneyham described the checkpoint location as a four-lane highway—two
lanes going north and two lanes going south—with a separate, continuous turn lane in the
middle. Additionally, there were shoulders on each side of the road, which were
approximately the width of a driving lane. He agreed that the roadway was “safe and
visible.” Sgt. Mooneyham testified that around thirty-eight officers were present at the
sobriety checkpoint. In addition to the activation of blue lights on patrol cars, Sgt.
Mooneyham utilized spotlights and “takedown” lights in order to ensure visibility at the
site.

       Sgt. Mooneyham testified that he filled out the media notification form, which he
then delivered to administrative Sgt. Jeff Anderson, who in turn submitted it to the media
outlets—in this case, the Times-News and Herald Courier. The Times-News printed a
notification announcing the sobriety checkpoint on Sunday, October 2, 2011.

       In total, 600 cars passed through the checkpoint; twenty-seven citations were
issued; and three misdemeanor arrests were made—including one DUI.


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       The trial court subsequently denied the Defendant‟s motion to suppress. The court
said that it was “satisfied beyond any doubt” that the THP sent notification to the Times-
News and the Herald Courier, although the Herald Courier chose not to print it. The
court noted that these two newspapers were the “only two major circulation newspapers
in Sullivan County” and that they were “highly competitive.” The court discussed the
location of the roadblock relative to the location of the nearest cities, Bristol and
Kingsport. However, the court noted that there was no evidence introduced regarding the
circulation of either paper or “which areas they would serve the most.” Nevertheless, the
court ultimately concluded that the THP “did what they could do in regards to
notification,” having sent notification to each “general circulation newspaper[] in
Sullivan County.”

        Subsequently, the case proceeded to trial, where THP Trooper Julian Robinson
testified that he participated in the sobriety checkpoint located at U.S. 11E and Allison
Road on October 7, 2011. Trooper Robinson testified that at around 11:30 p.m., a white
Jeep came through the roadblock. Trooper Robinson spoke with the driver, whom he
identified as the Defendant, and he smelled the “odor of an intoxicant [sic] substance
coming from his person.” The Defendant was instructed to pull his vehicle over to the
side of the road so that the trooper could further investigate “the possible impairment.”
After performing poorly on several field sobriety tests, Trooper Robinson placed the
Defendant under arrest and “invoked the Tennessee implied consent law.” The
Defendant agreed to submit to a blood test to determine the level of alcohol in his system,
and he was taken to the hospital for a blood draw.

      Following his arrest, the Defendant‟s vehicle was subjected to an inventory search,
which revealed a metal pipe located in the center console. According to Trooper
Robinson, the pipe had an odor of marijuana. However, the pipe was never tested for the
presence of marijuana or other drugs.

       Melanie Carlisle testified that she was a “Special Agent-Forensic Scientist in [the]
Alcohol and Toxicology Unit” with the Tennessee Bureau of Investigation. In this
position, Agent Carlisle‟s duties included analyzing blood samples for the presence of
alcohol “or any other volatile.” Agent Carlisle testified that she conducted an alcohol
analysis on the Defendant‟s blood and that his BAC was .10%.

       The Defendant testified that prior to his arrest in October 2011, he had been
treated for brain cancer and that surgical excision of his tumor had resulted in losses of
his balance and coordination and led him to have seizure-like symptoms1 in stressful

1
  According to the Defendant, he suffered from “faux seizures” that caused him to exhibit “phantom symptoms”
similar to those suffered by an individual having an actual seizure.

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situations, making it “hard to function.” He recalled that on October 7, 2011, he had
attended a barbeque hosted by some of his friends to celebrate the completion of his
chemotherapy treatments. The Defendant admitted that he drank two beers at the party
and that he had not consumed any food that day. He attributed his poor performance on
the field sobriety tests to his medical limitations and claimed that the flashing lights at the
checkpoint caused him to experience seizure-like symptoms. The Defendant admitted
that, at the time of his arrest, he knew that consuming alcohol was likely to exacerbate his
preexisting difficulties with coordination and cognitive function.

      Upon this evidence, the jury convicted the Defendant of DUI per se and acquitted
him of the charges of DUI and possession of drug paraphernalia. This timely appeal
followed.

                                        ANALYSIS

        The Defendant claims that notice of the sobriety checkpoint was defective in three
respects: (1) the notice was not provided far enough in advance of the roadblock; (2) the
notice was only provided to part of the county because one of the county‟s two general
circulation newspapers chose not to print the notice; and (3) the notice did not provide an
exact date for the roadblock. The Defendant also briefly asserts that the roadblock was
unreasonable because the State failed to prove that the checkpoint was an effective tool
for protecting against a public danger. However, this issue was raised for the first time
on appeal and is, accordingly, waived. See Tenn. R. App. P. 36(a). The State responds
that the notice provided was adequate in all respects.

                                    I. Standard of Review

       A trial court‟s findings of fact on a motion to suppress are conclusive on appeal
unless the evidence preponderates against them. State v. Binette, 33 S.W.3d 215, 217
(Tenn. 2000). Likewise, questions of credibility, the weight and value of the evidence,
and the resolution of conflicting evidence are matters entrusted to the trial court, and this
court will not reverse the trial court‟s factual findings unless the evidence preponderates
against them. Id. (citing State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). Both proof
presented at the suppression hearing and proof presented at trial may be considered by an
appellate court in deciding the propriety of the trial court‟s ruling on a motion to
suppress. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998). The evidence is to be
viewed in the light most favorable to the prevailing party on a motion to suppress with all
reasonable and legitimate inferences that may be drawn by the evidence. State v. Carter,
16 S.W.3d 762, 765 (Tenn. 2000). However, our review of the application of the law to
the facts is de novo. State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998).


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                        II. Constitutionality of Sobriety Checkpoint

       Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution protect individuals against unreasonable searches and
seizures. “These constitutional provisions are designed to „safeguard the privacy and
security of individuals against arbitrary invasions of government officials.‟” Keith, 978
S.W.2d at 865 (quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967)). A police
officer‟s stop of an automobile constitutes a seizure under both the federal and state
constitutions. Delaware v. Prouse, 440 U.S. 648, 653 (1979); State v. Westbrooks, 594
S.W.2d 741, 743 (Tenn. Crim. App. 1979).

       In accordance with these principles, the general rule is that any warrantless search
or seizure is presumed to be unreasonable and requires the State to prove by a
preponderance of the evidence that the search or seizure was conducted pursuant to an
exception to the warrant requirement. State v. Simpson, 968 S.W.2d 776, 780 (Tenn.
1998). Our supreme court has “depart[ed] from these fundamental constitutional
principles” in the case of a roadblock seizure made for the purpose of identifying
intoxicated drivers. State v. Downey, 945 S.W.2d 102, 104 (Tenn. 1997). In Downey,
our supreme court held that at a sobriety checkpoint, officers may “stop and question
persons whose conduct is ordinary, innocent, and free from suspicion.” Id.

       However, a seizure at a sobriety checkpoint is reasonable in accordance with the
Tennessee Constitution only if “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.” 945 S.W.2d at 104; see also Brown v. Texas, 443 U.S. 47, 50-51 (1979)
(discussing, generally, the reasonableness of seizures that are less intrusive than an arrest
and stating that such seizures “must be carried out pursuant to a plan embodying explicit,
neutral limitations on the conduct of individual officers”). To this end, there are two
absolute prerequisites that the State must establish before a roadblock will be found
constitutional: (1) the decision to set up the roadblock in the first instance must not have
been made by the officer or officers actually establishing the roadblock; and (2) the
officers on the scene must not have discretion to select the procedures to be used in
operating the roadblock. State v. Hayes, 188 S.W.3d 505, 516 (Tenn. 2006) (citing State
v. Hicks, 55 S.W.3d 515, 533 (Tenn. 2011)); see also State v. Charles H. Vires, Jr., No.
M2010-01004-CCA-R3-CD, 2011 WL 4447014, at *3 (Tenn. Crim. App. Sept. 26, 2011)
(noting that “[t]he absence of either of these mandatory factors renders a roadblock
unconstitutional per se”).




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      Furthermore, four additional factors minimize the risk of arbitrary intrusion during
the administration of a roadblock:

              (1) stopping all cars traveling in both directions, unless congested
      traffic requires permitting motorists to pass through;

            (2) taking adequate safety precautions, such as warning approaching
      motorists of the roadblock and stopping cars only in a safe and visible area;

             (3) conducting the roadblock with uniformed officers and marked
      patrol cars with flashing emergency lights; and

             (4) providing advanced publicity of the roadblock to the public at
      large, separate from, and in addition to, any notice warnings given to
      approaching motorists.

Vires, 2011 WL 4447014, at *3 (citing Hicks, 55 S.W.3d at 533); see also Downey, 945
S.W.2d at 110-12. “[T]he absence of any one of these factors does not necessarily
invalidate a roadblock”; however, “they each weigh heavily in determining the overall
reasonableness of the checkpoint.” Id. Furthermore, “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.” Downey, 945 S.W.2d at 110.

       In this appeal, the Defendant challenges only the sufficiency of the notice
provided prior to the roadblock. In reviewing this issue, we note that “[a]lthough
compliance with the requirements of Downey and Hicks, not General Order 410-1,
governs the constitutionality of the roadblock, the failure of the notice to comply with
General Order 410-1 is evidence of a lack of administrative or supervisory decision
making.” Vires, 2011 WL 4447014, at *4 (citing Downey, 945 S.W.2d at 111, n.8;
Hicks, 55 S.W.3d at 535, n.11).

       We agree with the trial court that notice of the sobriety checkpoint was in
compliance with Order 410-1. To the extent that the Defendant complains that notice
was not provided at least two weeks prior to the checkpoint, he misreads the notice
requirement contained in Order 410-1. The Order does not require that notice of the
roadblock is actually provided to the public no later than two weeks prior to the date of
the roadblock. Rather, the THP is merely required to provide that information to the
news media in accordance with that timeframe. Sgt. Anderson testified that notice was
provided to local news outlets seventeen days prior to the date of the roadblock, in full


                                           -7-
compliance with Order 410-1. Adherence to Order 410-in this respect bolsters the
reasonableness of the roadblock.

       Additionally, the Defendant has cited to no authority in support of his argument
that “[n]otice[,] to be effective[,] must be available to all or most of the citizens of the
area where the checkpoint is to be held.” The trial court observed that the Times-News
and Herald Courier were the only two general circulation papers in the county and that
they were “highly competitive.” However, the Defendant failed to introduce any
evidence regarding the circulation pattern of either the Times-News or the Herald Courier
within Sullivan County. Therefore, like the trial court, we are unable to determine the
import, if any, of the Herald Courier‟s failure to publish notice.

       Furthermore, the Defendant‟s argument that the THP‟s failure to provide a specific
date for the roadblock undermines the deterrent effect of the notice is unpersuasive.
Although one goal of the advanced publicity requirement is to deter those who might
otherwise drive intoxicated, a panel of this court has previously found that where the
notice provided listed a date range during which the sobriety checkpoint would be
conducted rather than a specific date, the deterrent value might actually increase. See
State v. Rick L. Muncie, No. M2008-02097-CCA-R3-CD, 2009 WL 3031269, at *9
(Tenn. Crim. App. Sept. 23, 2009). Again, the Defendant has pointed to no authority
requiring that notice of the roadblock include a specific date, and this issue is without
merit.

       Finally, even had we concluded that the notification was deficient in this case, that
would not per se lead to a determination that the sobriety checkpoint was
unconstitutional. See Downey, 945 S.W.2d at 110; see also State v. Sherman Boddie,
No. W2007-00685-CCA-R3-CD, 2007 WL 4322159, at *4 (Tenn. Crim. App. Dec. 11,
2007) (holding that roadblock was constitutionally reasonable where the State proved
compliance with the mandatory Downey and Hicks factors as well as three of the four
remaining factors). The Defendant does not allege that the roadblock was deficient in
any other respect, and our review leads us to conclude that the State met its burden of
proving that the roadblock complied with Downey and its progeny. Most importantly,
the proof introduced at the suppression hearing supports a determination that the sobriety
checkpoint in this case was conducted with appropriate supervisory authority and that
individual officer discretion in the field was extremely limited. Therefore, we conclude
that the sobriety checkpoint was constitutional, and we affirm the trial court‟s denial of
the Defendant‟s motion to suppress.




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                                     CONCLUSION

       Based on the foregoing and the record as a whole, the judgment of the trial court is
affirmed.




                                                  _________________________________

                                                  D. KELLY THOMAS, JR., JUDGE




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