State of Tennessee v. Charles H. Vires, Jr. ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
March 8, 2011 Session
STATE OF TENNESSEE v. CHARLES H. VIRES, JR.
Appeal from the Circuit Court for Maury County
No. 2010CR19565 Robert Lee Holloway, Jr., Judge
No. M2010-01004-CCA-R3-CD - Filed September 26, 2011
The State appeals the Maury County Circuit Court’s granting of the Defendant’s motion to
suppress evidence obtained during a sobriety checkpoint. The State claims that the trial court
erred by concluding that the Defendant was unreasonably seized at the checkpoint due to the
failure of the advance publicity to comply with Tennessee Department of Safety General
Order 410-1. We reverse the judgment of the trial court and remand the case for further
proceedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
Case Remanded
J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS, and N ORMA M CG EE O GLE, JJ., joined.
John Russell Parkes, Columbia, Tennessee, for the appellee, Charles H. Vires, Jr.
Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Senior Counsel; Mike
Bottoms, District Attorney General; and David Cruz, Assistant District Attorney General, for
the appellant, State of Tennessee.
OPINION
At the pretrial hearing on the Defendant’s motion to suppress, the Defendant conceded
that his motion was based on the single issue of whether the police provided sufficient
advance notice of the checkpoint. The hearing was “solely limited” to that issue. Tennessee
Highway Patrol Officer Chad Smith testified that on July 31, 2009, the Defendant was
stopped at a sobriety checkpoint conducted on Highway 50 East in Maury County. He said
that the police provided advance notice of the checkpoint to the Columbia Daily Herald
newspaper and that an article providing notice of the checkpoint was printed on July 23,
2009. The article was admitted into evidence. It stated:
The Tennessee Highway Patrol will be conducting
roadside sobriety checkpoints in Maury County later this month.
According to a press release, troopers will be set-up at
various checkpoints throughout the county on July 31.
“The Tennessee Highway Patrol has found these roadside
sobriety safety checkpoints to be an effective means of
enforcing the DUI laws of Tennessee while ensuring the
protection of all motorists,” the press release states.
Officer Smith was not aware of any other advance notice provided to the public. He said the
police warned approaching motorists of the checkpoint using orange signs, traffic cones with
flashing lights, emergency lights on patrol cars, and reflective traffic vests.
On cross-examination, Officer Smith testified that Captain Steve Hazard submitted
a request to the Department of Safety to conduct the checkpoint three miles east of mile
marker nineteen on Highway 50 and that Captain Hazard received approval to conduct the
checkpoint. He agreed that the Department of Safety issued General Order 410-1 and that
the order established the proper procedure to be followed by the Tennessee Highway Patrol
when conducting a sobriety checkpoint. He agreed the order stated that the local district
attorney and local law enforcement should be informed of the checkpoint and that written
notification of the checkpoint should be provided to local news agencies, listing the date and
county in which the checkpoint would be held, as well as the general location and
approximate time of the checkpoint. He did not know if District Attorney Mike Bottoms was
notified. He said local law enforcement officers were present at the checkpoint. He said the
press release published in the Columbia Daily Herald did not list the general location of the
checkpoint.
On redirect examination, Officer Smith testified that the checkpoint was conducted
at the location and time requested by Captain Hazard. He said numerous law enforcement
agencies were present at the checkpoint.
On recross-examination, Officer Smith agreed that General Order 410-1 contained a
sample press release used to notify local media of a checkpoint. He did not have anything
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in his file indicating that the Tennessee Highway Patrol completed the sample press release
or identified a specific location for the checkpoint within Maury County.
The trial court found that the checkpoint was not conducted in accordance with the
predetermined guidelines listed in General Order 410-1 because the public did not receive
advance notice of the general location of the checkpoint or the approximate time it would be
conducted. The trial court concluded that the failure of the advance notice to comply with
General Order 410-1 rendered the checkpoint an unreasonable seizure under Article I,
Section 7 of the Tennessee Constitution and granted the Defendant’s motion to suppress the
evidence obtained at the checkpoint. This appeal followed.
The State claims that the trial court erred by concluding that the Defendant was
unreasonably seized at the checkpoint because the advance publicity did not comply with
General Order 410-1. The State argues that this single factor was not dispositive of the
reasonableness of the roadblock, that the trial court’s suppression order was improperly
based upon a single factor, and that the failure of the advance notice to comply with General
Order 410-1 does not justify suppression of the evidence when the checkpoint was otherwise
constitutional. The Defendant claims that the trial court properly concluded that the notice
published in the Columbia Daily Herald did not comply with the predetermined guidelines
listed in General Order 410-1 and thus rendered the checkpoint an unconstitutional seizure.
We conclude that the trial court erred by not considering each of the factors enumerated in
State v. Downey, 945 S.W.2d 102 (Tenn. 1997), and State v. Hicks, 55 S.W.3d 515 (Tenn.
2001), in assessing the overall reasonableness of the checkpoint and whether genuine
limitations were placed on the discretion of the officers in the field.
A trial court’s factual findings on a motion to suppress are conclusive on appeal
unless the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn.
1996); State v. Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Questions about the
“credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts
in the evidence are matters entrusted to the trial judge as the trier of fact.” Odom, 928
S.W.2d at 23. The prevailing party is entitled to the strongest legitimate view of the evidence
and all reasonable inferences drawn from that evidence. Hicks, 55 S.W.3d at 521. The
application of the law to the facts as determined by the trial court is a question of law, which
is reviewed de novo on appeal. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).
The Fourth Amendment to the United States Constitution protects against
unreasonable searches and seizures, and “‘article 1, section 7 [of the Tennessee Constitution]
is identical in intent and purpose with the Fourth Amendment.’” Downey, 945 S.W.2d at 106
(quoting Sneed v. State, 423 S.W.2d 857, 860 (1968)). A sobriety checkpoint can constitute
a reasonable seizure if “it is established and operated in accordance with predetermined
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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.” Downey,
945 S.W.2d at 104. See also Michigan v. Sitz, 496 U.S. 444, 450-55 (1990). The State bears
the burden of showing that the government roadblock was reasonable. Hicks, 55 S.W.3d at
527, 535 (citing State v. Bartram, 925 S.W.2d 227, 230 (Tenn. 1996)).
The “most important attribute of a reasonable roadblock is the presence of genuine
limitations upon the discretion of the officers in the field.” Id. at 533 (citing Downey, 945
S.W.2d at 110-12). The State must establish that (1) an authority superior to the officers in
the field established the time and location of the roadblock and (2) the field officers
conducted the roadblock according to “neutral standards previously fixed by administrative
decision or regulation.” Id. The absence of either of these mandatory factors renders a
roadblock unconstitutional per se. Id. Four additional factors minimize the risk of an
arbitrary intrusion during 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.
Id. at 533 (citing Downey, 945 S.W.2d at 110-12). “Although the absence of any one of
these factors does not necessarily invalidate a roadblock, they each weigh heavily in
determining the overall reasonableness of the checkpoint.” Id. No single factor is
dispositive of the issue, and a roadblock can be upheld despite a factor weighing against the
State. Downey, 945 S.W.2d at 110; see also State v. Sherman Boddie, No.
W2007-00685-CCA-R3-CD, Tipton County, slip op. at 4 (Tenn. Crim. App. Dec. 11, 2007)
(holding that lack of advance publicity did not invalidate a sobriety roadblock conducted by
the Tennessee Highway Patrol and governed by General Order 410-1 when the State proved
the existence of both mandatory Downey/Hicks factors and three of the four remaining
factors beyond a reasonable doubt). “Instead, the overriding question is whether the
roadblock was established and operated in a constitutionally reasonable manner that
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minimized the intrusion on individuals and limited the discretion afforded to officers at the
scene.” Downey, 945 S.W.2d at 110.
Preliminarily, we note that although the State failed to carry its burden of proof at
the hearing on the Defendant’s motion to suppress, such a failure can be attributed to the
instructions of the trial court. At the hearing, the Defendant conceded that the police stopped
all cars traveling in both directions, took adequate safety precautions, and conducted the
roadblock using uniformed officers and marked patrol cars with flashing emergency lights.
The Defendant agreed with the trial court that he intended to rely solely on the lack of
advance publicity to support his motion. After the State said that it was “satisfactory” for the
Defendant to rely on this factor during the hearing, the trial court stated that the hearing
would “focus” on the issue of advance publicity. The State then called Officer Smith to the
stand and attempted to “present every single step” of the checkpoint to establish its validity,
but was interrupted when the trial court stated, “My understanding is that [the] motion to
suppress does not involve 1, 2, or 3 at this time.” When the State agreed that the Defendant’s
motion was focused on the issue of advance publicity, the trial court stated, “Okay. . . this
motion is solely limited to No. 4 or D in your case.” The State complied with the trial court’s
instructions and did not attempt to present further evidence of the mandatory Downey/Hicks
factors or of three of the four remaining factors. The Defendant did not concede either of the
mandatory factors from Downey and Hicks. See Hicks, 55 S.W.3d at 533. Although Officer
Smith testified during cross-examination that a superior authority established the time and
location of the roadblock, no proof was presented regarding whether the field officers
conducted the roadblock according to “neutral standards previously fixed by administrative
decision or regulation.” Id.
We agree with the trial court’s finding that the advance notice of the checkpoint did
not comply with General Order 410-1 because it did not list the general location of the
checkpoint or the approximate time it would be conducted. We disagree that this single
shortcoming necessarily rendered the checkpoint an unconstitutional seizure. The
insufficient advance notice weighs against the overall reasonableness of the checkpoint, but
it does not necessarily invalidate the checkpoint. The presence or absence of publicity is a
factor to be considered when assessing the reasonableness of a roadblock but is not
dispositive of the issue. We conclude that the trial court erred by not considering all relevant
factors in determining the overall reasonableness of the checkpoint and whether the
checkpoint was conducted in accordance with the mandatory requirements of Downey and
Hicks.
With regard to the State’s claim that the failure of the advance notice to comply with
General Order 410-1 does not justify suppression of the evidence when the checkpoint was
otherwise constitutional, we reiterate that the lack of sufficient advance notice weighs against
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the overall reasonableness of the checkpoint. Although 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. See Downey, 945 S.W.2d at 111 n.8;
Hicks, 55 S.W.3d at 535 n.11.
We caution that our holding does not condone the Tennessee Highway Patrol’s failure
to provide sufficient advance notice in compliance with its own guidelines. If incidents of
insufficient advance notice continue to occur, the circumstances may render a checkpoint
invalid and justify exclusion of evidence.
In consideration of the foregoing and the record as a whole, we reverse the trial
court’s order granting the motion to suppress and remand the case for further proceedings.
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JOSEPH M. TIPTON, PRESIDING JUDGE
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