State v. Levitt

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs September 25, 2001

STATE OF TENNESSEE v. JOSEPH J. LEVITT, JR.

Direct Appeal from the Criminal Court for Knox County
No. 66082 E. Shayne Sexton, Judge

No. E2000-03051-CCA-R3-CD
December 18, 2001

The defendant drove up behind a vehicle which had halted because of a driver’s license roadblock
near Knoxville. He then proceeded onto the right shoulder to get around that vehicle and was
stopped by the Tennessee Highway Patrol officer conducting the roadblock. What next occurred was
highly disputed, but the events culminated with the defendant’s being sprayed with Freeze, some of
which was deflected back onto the officer, partially incapacitating him also. The defendant was
charged with resisting arrest, reckless driving, and failure to carry and display a driver’s license on
demand. The reckless driving charge was nolle prosequi and, following a jury trial, the defendant
was found not guilty of resisting arrest but was convicted of the driver’s license charge, sentenced
to ten days confinement, which was suspended, and ordered to pay a $50 fine and court costs. He
timely appealed the conviction, arguing that the roadblock was unconstitutional. Based upon our
review, we conclude that the roadblock was unconstitutional and that the officers lacked probable
cause to stop the defendant’s vehicle. Accordingly, we reverse the conviction and dismiss the
charge.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed
and Dismissed

ALAN E. GLENN, J., delivered the opinion of the court, in which JOE G. RILEY and THOMAS T.
WOODALL, JJ., joined.

James A. H. Bell, Knoxville, Tennessee, for the appellant, Joseph J. Levitt, Jr.

Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General;
and Eric D. Christiansen, District Attorney General Pro Tem, for the appellee, State of Tennessee.

OPINION

Following a jury trial, the defendant was found not guilty of resisting arrest but guilty of
failure to carry and display his driver’s license on demand, in violation of Tennessee Code Annotated
Section 55-50-351, a Class C misdemeanor. The trial court sentenced the defendant to ten days in
the county jail, suspended upon payment of a $50 fine and all court costs. Following the denial of
his motion for a new trial, the defendant filed a timely notice of appeal to this court, raising two
issues, which he states in his brief as follows:

I. The Trial Court erred in determining that the roadblock operated
by members of the Tennessee Highway Patrol was constitutionally
permissible and denying the Appellant’s Motion to Suppress all
evidence obtained as a result of this roadblock.

II. The evidence presented at trial was insufficient to prove beyond
a reasonable doubt that the Appellant was operating a motor vehicle
in violation of T.C.A. § 55-50-351, requiring that an individual carry
a valid drivers [sic] license and display same when asked to by law
enforcement officers.

Although the evidence presented was sufficient to sustain the conviction, we conclude that
the trial court erred in denying the defendant’s motion to suppress evidence relating to the charge
of failure to carry and display his license on demand, reverse the conviction, and dismiss the charge.

FACTS

On Saturday, April 5, 1997, at the beginning of their shifts, Troopers Frank Shearl and
Stephen Parsley of the Tennessee Highway Patrol approached their supervisor, Sergeant Dennis
Murray, at the Rocky Top gas station in Knoxville, informed him that they wanted to conduct a
“traffic enforcement” roadblock together that day, pursuant to General Order 410,1 and received his
permission to establish a driver’s license checkpoint underneath the South Knoxville Bridge on
Riverside Drive in Knoxville. The spot was a “preapproved” roadblock site, where many roadblocks
had been conducted in the past. The road was two-lane, approximately twenty to twenty-two feet
wide, and ran east to west underneath the bridge. Paved shoulders that were at least ten feet wide
made it possible for the troopers to pull vehicles to the side of the road in safety. Approximately 100
to 200 feet east of the site, and 400 to 500 feet west, sharp curves in the road hid the roadblock from
approaching traffic. The troopers acknowledged that they had no traffic statistics or data that
indicated the need for a traffic enforcement roadblock at that site. Instead, the location was chosen
because it was a convenient site for the officers to conduct a roadblock.2

The roadblock was begun at 4:15 p.m., and operated until approximately 6:30 p.m. Trooper
Shearl, as the officer with the most seniority, was in charge. Trooper Parsley testified at the
suppression hearing that their “predetermined” plan was to stop every vehicle that came through the

1
Tenne ssee Departm ent of Safety Genera l Ord er 410, governing the operation and estab lishment of traffic
enforcement roadblocks, requires the presence of only two officers. Sobriety roadblocks, by contrast, require six officers.

2
It was possible for a roadblock at that location to be cond ucted by o nly two officers. The site was also
centrally located, making it possible for the troop ers to respond fairly q uickly to emergency calls throughout the county.

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roadblock, unless the conditions became too hazardous to do so. Both troopers were in uniform, and
the blue lights on their patrol cars, which were parked on the westbound shoulder of the road, were
activated. However, no advance publicity of the checkpoint was given, no traffic cones were set up
to direct motorists through the roadblock, and there were no signs to warn approaching drivers of
the roadblock.

The checkpoint had been in operation for approximately an hour and a half to two hours
when the sixty-five-year-old defendant, Knoxville lawyer Joseph J. Levitt, Jr., approached it in the
eastbound lane. The defendant, who had been mowing grass at one of his rental properties, was
driving a 1977 Chevrolet van and towing a medium-sized trailer carrying lawn equipment. Trooper
Shearl was in his patrol car, parked on the westbound shoulder of the road, writing a ticket to a
violator who was parked on the eastbound shoulder. Immediately in front of the defendant, in the
eastbound lane, Trooper Parsley had stopped a small, older model Chevrolet Blazer sport utility
vehicle. The Blazer was towing a ten-foot-wide boat trailer carrying a twenty-four-foot- long
pontoon boat that had a mooring cover over it. Trooper Parsley was standing beside the driver’s
door, checking the license of the driver of the Blazer. There were no vehicles stopped in the
westbound lane.

At the suppression hearing, Trooper Parsley testified that he was talking to the driver of the
Blazer when he “heard gravel being kicked up, ” and looked up to see the defendant’s orange and
white van coming around on the right, traveling on the gravel portion of the shoulder. He said that
he saw the van veer, and almost strike a parked vehicle ahead of it on the shoulder, before reentering
the paved shoulder and then the traffic lane. Later in his testimony, he said that the defendant came
within “two to three feet” of the parked vehicle, before moving back over into the eastbound lane.
He estimated the speed of the defendant’s van as between twenty-five and thirty miles per hour, and
said that, although that was within the speed limit on Riverside Drive, the manner in which the
defendant was driving “was unsafe for the conditions at the time we were there at the roadblock.”

Trooper Parsley testified that when he yelled “stop,” the defendant stopped with his vehicle
at a slight angle, with the “left front portion” of his bumper “a few inches” over the center double
yellow line. He said that he handed back the driver’s license of the driver of the Blazer, walked up
to the defendant, told him that he could not “drive around the shoulder like that,” and asked to see
his license. According to Trooper Parsley, the defendant, who appeared “very irate,” told him that
he did not have to stop, and that Trooper Parsley was to call him “sir.”3

3
The State did not question Trooper Parsley about what occurred following the stop. At trial, however, he
testified that after he “calmly” approached the defendant’s van and told him that he could not “go around traffic like
that,” the d efendant answ ered, “Yo u-all shouldn’t have the damn road blocked,” and said that Trooper Parsley was to
address him as “sir.” Trooper Parsley said that he responded that he did not have to call the defendant sir, and that he
needed to see his driver’s license. According to Trooper Parsley, he asked three times to see the defendant’s license,
saying, “I need to see your driver’s license. I need to see your driver’s license. I need to see your driver’s license[,]”
but all three times the defendant refused, using the curse words “damn” and “damnit.” Trooper Parsley said that he then
opened the door to the defendant’s van, and told him to step out and show his identification. Instead of complying, the
(continued...)

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 On cross-examination, Trooper Parsley acknowledged that from his position beside the
driver’s door of the Blazer, he could not see traffic approaching behind the large pontoon boat. He
admitted that he had not stepped away from the Blazer to signal approaching traffic to stop. He also
acknowledged that they had no traffic cones set up at the roadblock, that he was not wearing a
reflective safety vest, and that he was not using a flashlight. He pointed out, however, that it was
daylight at the time, which made reflective vests and flashlights unnecessary. When asked whether
there was anything to distinguish him “from checking out a wreck,” he answered, “In my perception,
no.” He also verified that during the preliminary hearing, he had acknowledged that whether he had
been conducting a roadblock or investigating a wreck probably would have depended on the
perception of the individual driver.

The defendant testified that the site appeared to him to be the scene of an accident. As he
rounded the sharp curve leading to the bridge, he saw the flashing lights of the patrol cars on the
shoulder on the left side of the road and the back end of the boat trailer. However, he did not see
Trooper Parsley standing in the road beside the Blazer, or anything else that would have indicated
that it was a roadblock, rather than an accident. He testified that he drove slowly toward the scene,
looking to see if the way was clear for him to drive around. He explained that he was familiar with
the road, and knew that there was another sharp curve only a short distance ahead, just beyond the
bridge. He therefore decided to pass the boat and Blazer on the right, driving around on the paved
shoulder of the roadway.

The defendant said that he was on the lookout for broken glass in the road, and was “just
creeping”4 as he drove past the boat and Blazer. After his trailer had cleared the Blazer, he began
easing back over into the lane. When he was back in the lane, he heard someone yell, “Hey,
asshole.” When he heard it again, he leaned out of the window and saw Trooper Parsley coming
toward him. The defendant said that he asked, “Officer, is there something wrong?” and that
Trooper Parsley answered, “Yes, asshole, stop.” The defendant testified that he told the officer, “I
don’t believe you should talk to citizens like that. You can call me sir.” The defendant described
what next ensued:

This officer here, Parsley, came up to my car, and by then–I had my
arm on the window, and I pushed my gear shift into park, and I asked
him, I said – again, if there was something wrong, and he called me

3
(...continued)
defendant kicked him in the shin. In response, Troope r Parsley grabbed the defendant’s left arm and pulled. When he
“yanked,” the defendant’s foot came off the brake, and the van started to roll. Trooper Parsley then sprayed the
defendant in the face with mace. By that time, Trooper Shearl had come up behind Parsley, and he also sprayed the
defendant in the face with mac e. He testified that he and Trooper Shearl “got [the defendant] out” of the van, and
“app roxim ately three feet from his van, he was laid on the concrete.” Trooper Parsley said that he searched the
defendant’s wallet after he had been placed under arrest and found an exp ired license. H e later ran the defendant’s
license number through dispatch, and learned that he possessed a current license.

4
The State asserts in its brief that the defendant testified that “he thought he had come upon the scene of an
accident, yet he went around the scene at or near the speed limit.”

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 asshole again, said he didn’t have to call me sir, and grabbed my arm
and then just boom, boom, boom. Somebody grabbed my arm. I was
sprayed in the face. The door was jerked open, and I was pulled out
and my arm, still laying up there on the thing, and it pulled the–the
vehicle out of park. And pulled me out on the ground and sprayed me
either–either once in the van and once coming out the door or twice
in the van. I’m really not sure.

Paul Michael McLain, the driver of the Chevrolet Blazer, testified that earlier that afternoon
he and his wife had driven to the boat ramp at the South Knoxville Bridge so that he could help his
friend, Randy Reynolds, tow his boat home. On their way to meet Reynolds, they drove through the
roadblock without being stopped. He said they had not realized that it was a roadblock, and had
thought they were approaching a wreck. He saw the troopers, but they were at another vehicle, and
there were no signs to indicate that they were conducting a roadblock.

On the return trip with the boat, McLain was driving Reynolds’ Blazer. With him in the
Blazer were Reynolds, Reynolds’ wife Rita, and another woman named Sharon Monday. This time,
driving in the eastbound lane, he was stopped by an officer, whom he later identified as Trooper
Parsley, who asked to see his driver’s license and whether he had been drinking. McLain said that
he told the trooper that he had not had anything but iced tea, and they were joking about that as the
defendant came driving around the Blazer on the right shoulder. He said that the defendant was
driving “very slow,” at “a speed of five miles an hour or less,” did not veer or swerve, and was not
kicking up a cloud of dust, rocks, or gravel.

McLain said that Trooper Parsley yelled “Hey” or “some words” at the defendant and that,
although the defendant did not stop immediately,5 he eventually came to a stop with the end of his
trailer approximately thirty feet in front of the Blazer. Trooper Parsley left the Blazer and went up
to the door of the defendant’s van. McLain could not hear any of the conversation, but saw Trooper
Parsley standing at the door of the van for ten or fifteen seconds. He then saw the other trooper start
across the road toward the van. Halfway across the road, this second trooper took something out of
his belt and started shaking it. When the second trooper reached the van, he sprayed something in
the driver’s window. McLain testified that the driver’s door was closed at the time. Together, the
two troopers physically removed the defendant from his van. The second trooper then jumped in the
van to stop it from rolling away, and Trooper Parsley began leading the defendant across the street.
Halfway across, he stuck his foot out, tripping the defendant, who fell to his knees and lost his
eyeglasses in the process. As the defendant groped for his glasses with his free hand, Trooper
Parsley “took his foot and, like a sweeping kick, kicked his glasses out of the way.” After the
defendant was handcuffed, the officers motioned for McLain to drive on.

5
McLain implied that he tho ught T rooper P arsley’s initial yell m ight not have been heard by the defendant
because his windo w was rolled up.

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 On cross-examination, McLain testified that he could not recall seeing the defendant kick
Trooper Parsley, and that he could not say who had opened the van door. When asked if he had seen
the defendant kick at Trooper Parsley, he answered, “The door come open, the officers was [sic]
removing him from the vehicle, I seen legs at that time, you know. Whether they were in a kicking
motion, I cannot tell you that, sir. I don’t know.” McLain admitted that he had not reported Trooper
Parsley’s treatment of the defendant to any authorities. He said that he had contacted the defendant
after Reynolds read an article in the newspaper about the incident, and recognized it as the same one
they had witnessed.

Randy Reynolds, the owner of the Blazer, testified that he was sitting in the front passenger
seat when he saw the defendant drive past the Blazer on the shoulder, traveling very slowly, at
“three, four, five mile an hour, somewhere around there.” He described what occurred:

Well, I noticed it [the defendant’s van] when he got about to the
mirror, and the officer hollered–when he got about to the front of the
Blazer, the officer hollered, “Stop,” I believe that’s what it was, and
so he kind of pulled on up a little, maybe five, ten foot, and he was
just barely rolling and one–one officer runs over and grabs the door,
and the other one runs and grabs him and jerks him out, and one
throws it in park.

Reynolds said that he did not see any signs announcing that the troopers were conducting a
roadblock. He had assumed that it was a roadblock, however, because he had had the opportunity
to watch the troopers for ten or fifteen minutes as he loaded his boat onto the trailer.

On cross-examination, he testified that the defendant’s van slowed down, but never came to
a complete stop. The rear of the defendant’s trailer, he said, was about ten feet in front of his Blazer
when the first trooper started toward the van. That trooper said something to the defendant, which
Reynolds could not hear. He then opened the door of the van and grabbed the defendant, while the
second trooper put the van in park. After the troopers had pulled the defendant out of the van, the
first trooper, who had the defendant’s arm in a twisting hold, put his foot behind the defendant’s
legs, and “took him down” to the ground.

At the conclusion of the hearing, the trial court issued an oral ruling denying the motion to
suppress. In its ruling, the court indicated that it was finding that the constitutionality of the
roadblock was irrelevant because the defendant had driven around the checkpoint:

We’re not talking about someone who did not comply with a willful–I
don’t see the roadblock as the issue here. I don’t. I think that [the
defendant] candidly said that he thought it was a wreck, and I’ll take
that–I’ll take that as money in the bank. The question becomes
after–I don’t think he did anything improper. I don’t think he did
anything improper by going by, but the question is, once the officer

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 says “Stop,” what happens? I think the officer at that point had a
right to say “Stop.” Up until then, I don’t see anything wrong with
this process.

However, as the following exchange makes clear, the court also gave at least some indication
that it was finding the roadblock constitutional, based on the fact that it did not substantially deviate
from the procedures established in Department of Safety General Order 410:

MR. BELL: But, Your Honor, he had him stopped, not because
of a wreck but because the officer believed he was conducting a
roadblock. That’s what–

THE COURT: You see, I don’t–well, then we go back to is this
a lawful roadblock? I believe that under General Order 410, I don’t
think that what happened deviates substantially from–what happened
factually in this case, deviates substantially from 410. Now, I think
that Downey has cleaned up a lot of what 410 did, but that’s the
problem with running these cases three years down the line.

I’ll tell you, gentlemen–I mean, I am–this is somewhat probably
unusual coming from a court, but I don’t see the problems leading up
to the stop. I see terrible problems after it happened. I mean–

When asked to clarify its ruling regarding the constitutionality of the stop, the court explained
that it did not find the procedures for constitutionally reasonable sobriety checkpoints, adopted by
our supreme court in State v. Downey, 945 S.W.2d 102 (Tenn. 1997), applicable to the case:

Your ruling is as follows. As to Downey, I find that it does not apply.
As a matter of law, I have considered the changes that were made to
General Order 410 based on the Downey case. I think I have run that
through my mind. Standing, I don’t think is an issue in this case. I
think that [the defendant] availed himself to what is a right of his,
which is to proceed around. I don’t think it was a necessarily safe
action. I don’t think that everyone would do that, but I believe that
he was within his power to do that, but I also think that the officer
had, within his duty, the option to ask [the defendant] to stop, and I
believe that occurred. I think the officer acted lawfully and [the
defendant] acted lawfully, and so I find that there was no unlawful
halt, there was no unlawful stop. I don’t find the roadblock
procedures persuasive in any way, and I think that the case will go
forward like that.

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 The court went on to find that the evidence did not support the reckless driving charge, and
that the defendant’s “action did not, in and of themselves, [sic] constitute an act that might by itself
be sufficient to stop the car.” When asked on what basis it was finding that the trooper had lawfully
stopped the defendant, the trial court stated that it was based on:

The statute of when blue lights are running, the law enforcement
officer is running whatever process on the road, whether he’s working
a wreck, whether he’s running a roadblock, whatever it is, at that
particular time, the road was quarantined off or it was at least being
supervised by the Tennessee Highway Patrol, and [the defendant]
didn’t know why. He was acting on his own. That’s fine. The
officer had different intentions, but his intentions were well founded.
He didn’t know if [the defendant] was driving around to avoid that or
to drive around to avoid a wreck, to avoid whatever, just didn’t know
if he was getting around the edge.

My ruling is that nothing improper on either side occurred. But
I think the officer had a right to stop him, and [the defendant] did
what law enforcement–or what law-abiding citizens would do, which
is stop. At that point it’s–that’s really what the jury is going to
decide, but I think I have–

Based on the trial court’s findings, defense counsel moved to amend the motion to suppress
to include an argument that the trooper had no reasonable suspicion to justify a Terry-type6 stop of
the defendant. In response, the trial court first repeated that the trooper lawfully stopped the
defendant pursuant to his authority to direct and control traffic on public roads, stating:

Well, reasonable suspicion is what the buzzword is, but this is one the
State–and I think it’s a proper contention when a law enforcement
officer has given an order for a motorist to stop, they are to stop.
We’re not talking about a search. We’re not talking about evidence
that was gained after. We’re talking about a terrible thing that
occurred after the stop.

However, the court later went on to indicate that it was finding that the trooper had reasonable
suspicion for the stop, stating that the trooper was not mistaken in the stop, and that it occurred
because “[i]n his mind he thought you were going around his roadblock.” The defendant then
proceeded to trial on the two remaining charges of the indictment.

ANALYSIS

6
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 , 20 L. Ed. 2d 88 9 (1968 ).

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 I. Trial Court’s Denial of Motion to Suppress

In challenging the trial court’s denial of his motion to suppress, the defendant argues, first,
that drivers’ license checkpoints are per se unconstitutional, and second, that even if not per se
unconstitutional, the checkpoint at issue in this case failed to satisfy the guidelines established in
State v. Downey, 945 S.W.2d 102 (Tenn. 1997), and State v. Hicks, 55 S.W.3d 515 (Tenn. 2001),
for a constitutional suspicionless stop.7 The State responds by arguing that the constitutionality of
the roadblock is irrelevant. The State contends that the defendant was stopped for the reckless
manner in which he drove around the roadblock, and that the trooper’s request for his license was
a permissible part of a valid investigatory stop.

A. Standard of Review

We review the trial court’s denial of the defendant’s motion to suppress by the following
well-established standard:

Questions of 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. The party prevailing in
the trial court is entitled to the strongest legitimate view of the
evidence adduced at the suppression hearing as well as all reasonable
and legitimate inferences that may be drawn from that evidence. So
long as the greater weight of the evidence supports the trial court’s
findings, those findings shall be upheld. In other words, a trial
court’s findings of fact in a suppression hearing will be upheld unless
the evidence preponderates otherwise.

State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). However, the trial court’s application of law to
the facts, as a matter of law, is reviewed de novo, with no presumption of correctness. State v.
Daniel, 12 S.W.3d 420, 423 (Tenn. 2000). This court may consider the proof at trial, as well as at
the suppression hearing, when considering the appropriateness of the trial court’s ruling on a pretrial
motion to suppress. See State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998) (holding that because
the rules of appellate procedure “contemplate that allegations of error should be evaluated in light
of the entire record[,]” an appellate court “may consider the proof adduced both at the suppression
hearing and at trial”).

B. Denial of Motion to Suppress

In order to set the framework for our review, and because the defendant’s brief focuses on
this topic, we will begin our analysis by examining the constitutionality of the roadblock at issue in

7
The Hicks opinion was released after the briefs were filed in this case. Pursuant to Rule 27(d) of the Tennessee
Rules of Ap pellate Pro cedure, the d efendant submitted the case as supplemental authority for his argument.

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this case. 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. See U.S.
Const. amend. IV; Tenn. Const. art. I, § 7. “These constitutional provisions are designed to
‘safeguard the privacy and security of individuals against arbitrary invasions of government
officials.’” State v. Keith, 978 S.W.2d 861, 865 (Tenn. 1998) (quoting Camara v. Municipal Court,
387 U.S. 523, 528, 87 S. Ct. 1727, 1730, 18 L. Ed. 2d 930 (1967)). A search or seizure conducted
without a warrant is presumed unreasonable, and evidence obtained as a result will be suppressed
“unless the prosecution demonstrates by a preponderance of the evidence that the search or seizure
was conducted pursuant to an exception to the warrant requirement.” Id. at 865 (citations omitted).
The stop of an automobile, even for the short duration involved in a driver’s checkpoint, constitutes
a seizure under both the United States and Tennessee Constitutions. See Whren v. United States,
517 U.S. 806, 809-10, 116 S. Ct. 1769, 1772, 135 L. Ed. 2d 89 (1996); Michigan v. Sitz, 496 U.S.
444, 449-51, 110 S. Ct. 2481, 2485, 110 L. Ed. 2d 412 (1990); Delaware v. Prouse, 440 U.S. 648,
663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660 (1979); State v. Downey, 945 S.W.2d 102, 107 (Tenn.
1997). Thus, to be considered reasonable, the warrantless stop of an automobile must fall under one
of the exceptions to the warrant requirement. These exceptions include investigative stops based on
reasonable suspicion of wrongdoing on the part of the occupants of the vehicle, see Whren, 517 U.S.
at 810, 116 S. Ct. at 1769; Prouse, 440 U.S. at 655, 99 S. Ct. at 1391; State v. Vineyard, 958 S.W.2d
730, 734 (Tenn. 1997), and roadblocks that are conducted “pursuant to a plan embodying explicit,
neutral limitations on the conduct of individual officers.” Brown v. Texas, 443 U.S. 47, 51, 99 S.
Ct. 2637, 2640, 61 L. Ed. 2d 357 (1979). Under the latter exception, the United States Supreme
Court, balancing the public interest in preventing drunk driving against the Fourth Amendment
interest of the individual, has held that a roadblock designed to check for intoxicated drivers is not
violative of the Fourth Amendment to the United States Constitution. Sitz, 496 U.S. at 453, 110 S.
Ct. at 2485.

In State v. Downey, 945 S.W.2d 102 (Tenn. 1997), our supreme court adopted the balancing
analysis used in Sitz to determine whether sobriety checkpoints violate Article I, Section 7 of the
Tennessee Constitution. Id. at 110. Under this analysis, which weighs “‘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,’” id. at 107 (quoting Brown, 443 U.S. at 50-51,
99 S. Ct. at 2640), the court concluded that a sobriety checkpoint, because of the compelling public
interest in preventing drunk driving, 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. Because the evidence in Downey
revealed that the decision to operate the checkpoint was made by an officer in the field, who acted
without any supervisory or administrative oversight of his actions, the court found that the roadblock
was unconstitutional under Article I, Section 7 of the Tennessee Constitution. Id. at 110-11.

More recently, in State v. Hicks, 55 S.W.3d 515 (Tenn. 2001), our supreme court addressed
the constitutionality of drivers’ license roadblocks under Article I, Section 7 of the Tennessee
Constitution. Id. at 519. The court explained that the balancing test used in Downey is to be applied

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not just to sobriety checkpoints, but in “all cases involving constitutional challenges to roadblocks
or checkpoints under the Tennessee Constitution.” Id. at 524. It next determined that, under the
Downey test, “a roadblock will necessarily fail constitutional examination if it lacks a sufficiently
compelling state interest.” Id. at 527. The court then considered whether there is a sufficiently
compelling state interest in roadblocks established solely to check drivers’ licenses. After examining
the State’s assertion that drivers’ license roadblocks are necessary to ensure highway safety by
detecting and deterring unlicensed drivers, it concluded that “no evidence in the record establishes
this fact, or even if true, establishes that this interest is sufficiently compelling to justify
suspicionless stops.” Id. The court wrote:

Because the exceptions to the warrant requirement “are jealously
and carefully drawn,” the State must show that “the exigencies of the
situation made the search [or seizure] imperative.” State v. Bartram,
925 S.W.2d 227, 230 (Tenn. 1996) (emphasis added and internal
quotations omitted). Therefore, as required in Downey, the State
must show that drivers not possessing a license are unable to safely
operate motor vehicles on the roads and highways of this state; that
an unlicensed driver invariably presents an imminent danger of death
or serious bodily injury to other drivers that is not typically present
with licensed drivers; and that the safety threat from unlicensed
drivers is of such a magnitude that the problem, coupled with its risk
of harm, commands heightened attention. Only when this showing
is made may courts find that the State has a sufficiently compelling
interest to justify maintaining drivers’ license roadblocks.

Id.

In a separate concurring opinion, Chief Justice Anderson, joined by Justice Birch, concluded
that drivers’ license roadblocks are per se unconstitutional under Article I, Section 7 of the
Tennessee Constitution because a sufficiently compelling state interest in drivers’ license roadblocks
can never be shown. Id. at 539. Distinguishing drivers’ license roadblocks from sobriety
roadblocks, Justice Anderson wrote: “In my view, there is no basis upon which to reasonably
conclude that a motorist who is not in possession of a valid drivers’ license necessarily poses an
immediate danger of death or serious bodily injury great enough to warrant the suspicionless stop
of all drivers at a checkpoint.” Id. at 540 (emphasis in original).

In light of Hicks, we conclude that the drivers’ license checkpoint in this case was an
unreasonable seizure, violative of Article I, Section 7 of the Tennessee Constitution. First and
foremost, the required showing of a compelling state interest was not made. “Only when the State
makes the required showing, as it has previously done with sobriety checkpoints, may courts accept
the presence of the compelling interest and proceed to further analyze the roadblock under this
decision and Downey.” Id. at 528.

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 However, even had the State established a compelling interest, we would still have no
hesitation in determining that the roadblock here failed to pass constitutional muster, based on its
failure to be established and operated in a manner that minimized its intrusiveness on individual
freedom. The Hicks court made it clear that drivers’ license roadblocks are subject to the same
requirements for constitutional reasonableness as sobriety roadblocks. Id. at 537 n.13. According
to the court:

[T]he most important attribute of a reasonable roadblock is the
presence of genuine limitations upon the discretion of the officers in
the field. Two facts are critical to finding that the officers’ discretion
on the scene was properly limited: (1) the decision to set up the
roadblock in the first instance cannot have been made by the officer
or officers actually establishing the checkpoint, and (2) the officers on
the scene cannot decide for themselves the procedures to be used in
operating the roadblock. In all cases, therefore, the State must show
that some authority superior to the officers in the field decided to
establish the roadblock, particularly as to its time and location, and
that the officers adhered to neutral standards previously fixed by
administrative decision or regulation. To be clear, these factors are
so essential to a reasonable roadblock that the absence of either of
them will necessarily result in the invalidation of the stops.

Id. at 533 (citation omitted).

The roadblock here did not meet these minimal standards for constitutionality. There was
no meaningful prior administrative authorization or approval for the establishment of the roadblock
at the Riverside Drive location on the afternoon of April 5, 1997. Troopers Parsley and Shearl
formulated the plan for the roadblock together, and had a location picked out, before approaching
Sergeant Murray at the service station to obtain his approval. Although Sergeant Murray’s
permission may have technically complied with the Downey requirement that the party responsible
for establishing the roadblock be different from the party responsible for approving it, we cannot
conclude that mere acquiescence to an already formulated plan satisfies the reasonableness
requirement. It is also clear that the officers in the field, who were totally unsupervised at the scene,
chose the time of the roadblock, the procedures to be employed, and which vehicles were to be
stopped. Further evidence supporting the unreasonableness of the roadblock includes the lack of
advance publicity, the failure to have traffic cones or warning signs in place, and testimony
indicating that Trooper Parsley used the roadblock as a subterfuge to question at least one driver
about his drinking. See generally, id. at 534-38.

Had the defendant stayed in his lane, to be stopped after Trooper Parsley concluded his
encounter with McLain, our inquiry would be ended, since there would be no doubt that he would
be entitled to the suppression of evidence obtained as the result of a seizure at an unlawful
roadblock. See State v. Keith, 978 S.W.2d 861, 865 (Tenn. 1998). However, the defendant drove

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onto the paved shoulder to pass on the right the vehicle immediately in front of him before pulling
back into the lane. Therefore, we must next consider whether the trial court erred in finding that
Trooper Parsley lawfully stopped the defendant after he had passed on the right the Blazer and its
trailer which was stopped in his lane.8

In Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed.2d 889, the United States
Supreme Court held that a law enforcement officer may conduct a brief, investigatory stop of an
individual if the officer has a reasonable suspicion, based on specific and articulable facts, of
criminal activity on the part of the individual. Under the Terry rationale, an officer may stop and
detain a vehicle based on the reasonable suspicion that one of its occupants is either engaged in, or
about to be engaged in, criminal activity. Ornelas v. United States, 517 U.S. 690, 693, 116 S. Ct.
1657, 1662, 134 L. Ed. 2d 911 (1996); State v. Simpson, 968 S.W.2d 776, 780 (Tenn. 1998);
Vineyard, 958 S.W.2d at 734. Reasonable suspicion is an objective standard, and must be
determined from the totality of the circumstances. United States v. Cortez, 449 U.S. 411, 417-18,
101 S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981); Ornelas, 517 U.S. at 696, 116 S. Ct. at 1661-62.
“Based upon that whole picture the detaining officers must have a particularized and objective basis
for suspecting the particular person stopped of criminal activity.” Cortez, 449 U.S. at 417-18, 101
S. Ct. at 695. Reasonable suspicion will be found to exist only when “the events which occurred
leading up to the stop” would cause an “objectively reasonable police officer” to suspect criminal
activity on the part of the individual stopped. Ornelas, 517 U.S. at 696, 116 S. Ct. at 1661-62.

The State argues that the defendant’s reckless manner of driving around the Blazer provided
Trooper Parsley with “more than reasonable suspicion” for the stop. We agree that the observation
of a traffic violation, such as reckless driving, would have given Trooper Parsley not only reasonable
suspicion, but probable cause, to stop the defendant. See Whren v. United States, 517 U.S. 806,
817, 116 S. Ct. 1769, 1776, 135 L. Ed. 2d 89 (1996) (citations omitted) (noting that traffic violations
provide probable cause for a stop). “As a general matter, the decision to stop an automobile is
reasonable where the police have probable cause to believe that a traffic violation has occurred.”
Id. at 810, 116 S. Ct. at 1772 (citations omitted). The descriptions were vastly differing as to the
manner in which the defendant passed to the right the pontoon boat, pulled by the Blazer, which
were stopped in his lane. The photographs of the area show that the shoulder adjacent to the spot
where the Blazer was stopped is paved and somewhat wider than the lane itself. Portions of the
surface of the paved right shoulder appear to have dirt and loose gravel on them. Paul Michael
McLain, the driver of the Blazer, testified at the trial that, as the defendant’s van came abreast of his
vehicle, the van was proceeding “[v]ery slow. Very slowly, less than five miles an hour.” He said
that the van then stopped about thirty feet in front of his vehicle. Additionally, he had testified at
the motion to suppress that the defendant’s vehicle was neither swerving nor veering and agreed that
it was not “kicking up a cloud of dust and rocks and gravel.” During the motion to suppress, he also

8
W e note, however, that in a recent unpublished opinion, another panel of this court concluded that a defendant
who accelerated past a trooper cond ucting a roadblo ck, before finally halting in the center of the road, had been stopped
at the roadbloc k. See State v. Joe W. Steward, No. M 1999-01 284-CC A-R3-CD , 2000 W L 1246 436, at *1-2 (Tenn.
Crim. App . Aug. 1 8, 20 00), perm. to appeal granted (Tenn. Oct. 8, 2001).

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said that he did not see the defendant’s van come close to hitting another car. Randy Reynolds,
sitting in the right front seat of the Blazer, agreed that the van was going “[f]our or five mile[s] an
hour” when he first saw it, and that he did not notice if it was kicking up “dust and rocks.” At the
motion to suppress, he had also testified that, as far as he knew, the defendant’s van had not come
close to striking either the Blazer or another vehicle.

In contrast to the testimony of the driver and passenger of the Blazer, Trooper Parsley
testified at the motion to suppress that he heard “gravel being kicked up,” and, looking up, saw the
defendant’s van coming around the right side of the Blazer, almost striking a vehicle parked on the
shoulder in front of the Blazer, and then reentering the lane of traffic in front of the Blazer. He
estimated the speed of the van was “25 to 30 miles per hour, not above the speed limit, but around
the speed limit or right at it.” He said that the van was being operated in a manner which was
“unsafe for the conditions at the time we were there at the roadblock.”

After hearing the testimony at the motion to suppress, the trial court concluded, apparently
both factually and legally, that the State had failed to make a case against the defendant for reckless
driving. Resolving the conflicting testimony as to the defendant’s speed and whether he nearly
struck another vehicle in passing the Blazer on the right, the trial court, as we understand its findings,
rejected the officer’s testimony and accredited the defense proof that the act of passing the Blazer,
and the manner in which the defendant did so, did not constitute reckless driving. Applying the
appropriate standard of review, we conclude that since, in this regard, “the greater weight of the
evidence supports the trial court’s findings, those findings shall be upheld.” Odom, 928 S.W.2d at
23. Thus, we conclude that the trial court did not err in determining that the defendant’s actions in
driving onto the shoulder to pass the Blazer on the right did not provide either probable cause or
reasonable suspicion for stopping his vehicle.

In addition to arguing that the defendant’s manner of driving was reckless, the prosecutor
argued at the suppression hearing that in passing the Blazer on the shoulder, the defendant violated
the statute requiring motorists to drive within the clearly marked lanes of traffic. This statute
provides, in pertinent part:

Driving on roadways laned for traffic.–Whenever any roadway has
been divided into two (2) or more clearly marked lanes for traffic, the
following rules, in addition to all others consistent herewith, shall
apply:

(1) A vehicle shall be driven as nearly as practicable entirely
within a single lane and shall not be moved from such lane until the
driver has first ascertained that such movement can be made with
safety[.]

Tenn. Code Ann. § 55-8-123(1) (1998).

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 The prosecutor also referred the trial court to the statute which permits passing on the right
only under limited conditions:

When overtaking on the right is permitted.–(a) The driver of a
vehicle may overtake and pass upon the right of another vehicle only
under the following conditions:

(1) When the vehicle overtaken is making or about to make a
left turn;

(2) Upon a street or highway with unobstructed pavement not
occupied by parked vehicles of sufficient width for two (2) or
more lines of moving vehicles in each direction; and

(3) Upon a one-way street, or upon any roadway on which
traffic is restricted to one (1) direction of movement, where
the roadway is free from obstructions and of sufficient width
for two (2) or more lines of moving vehicles.

(b) The driver of a vehicle may overtake and pass another vehicle
upon the right only under such conditions permitting such movement
in safety. In no event shall such movement be made by driving off
the pavement or main-traveled portion of the roadway.

Tenn. Code Ann. § 55-8-118 (1998). The defendant responded by advising the trial court that the
statute had been interpreted to allow travel on the shoulder.9

The trial court found that the defendant did not violate any traffic laws by passing on the
right. We agree. The defendant did not travel for any substantial distance or period of time outside
his lane of traffic, and quite obviously believed that it would be safer to pass on the right than on the
left, given the sharp curve in the road ahead. He testified that he checked to see if the way was
clear, and proceeded slowly and cautiously around the stopped vehicle and boat. The paved
shoulder, which was at least ten feet wide, provided ample room for him to maneuver, and there were
no parked vehicles impeding his path.10 The defendant was immediately behind the Blazer and boat,
and nothing in the evidence indicates that there were any other vehicles stopped behind him. Thus,

9
In Ludwick v. Doe, 914 S.W.2d 522 (Te nn. Ct. App . 199 5), the C ourt of App eals interp reted the words “street”
or “highwa y” to include “the part designated fo r vehicular travel b y the public, any paved shoulder, any unpaved
shoulder, and any remaining part of the right of wa y,” concluding that this statute was not violated by a motorist’s driving
onto the paved should er to pass on the right a vehicle which wa s stopp ed, wa iting to make a left turn. Id. at 525.

10
Trooper Parsley testified that, as the defendant had entered the right shoulder, he almost stru ck a ve hicle
parked on the shoulder and in front of the Blazer. However, the occupants of the Blazer did not observe the defendant’s
nearly striking this parked vehicle, and the trial court accredited their testimony in this regard.

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this was not the case of a motorist attempting to get around backed up traffic by traveling on the
shoulder, while the rest of the motorists waited in the lane. Instead, the defendant utilized the
shoulder only for the length of time necessary to get around what he believed to be a vehicle that had
been involved in an accident. Accordingly, we conclude that the defendant did not violate this
statute by driving onto the shoulder to pass on the right the vehicle stopped in his lane of traffic.

Next, we consider whether the defendant’s action in bypassing the roadblock was sufficient
to create reasonable suspicion for the stop. In State v. Binion, 900 S.W.2d 702, 705 (Tenn. Crim.
App. 1994), this court concluded that a motorist’s attempts to avoid a roadblock may give rise to a
reasonable suspicion of criminal activity.11 We recognized, however, that a determination of whether
reasonable suspicion exists is necessarily fact-specific, requiring a case-by-case analysis:

Whether reasonable suspicion exists must be determined from the
totality of circumstances on a case by case basis. Among the factors
to be considered is whether objective evidence indicates that the
motorist was attempting to evade arrest or detection. Such evidence
may include the distance the motorist was from the roadblock when
the turn-off or U-turn was made, whether the motorist was able to see
the roadblock before the motorist took evasive action, and the manner
in which the motorist operates his or her automobile in making the
evasive action. Other factors to be considered are the arresting
officer’s experience and any other circumstances which would
indicate the driver was intentionally avoiding the roadblock to evade
arrest or detection.

Id. at 706 (emphasis added).

All the evidence in this case supports the conclusion that the defendant was not attempting
to avoid arrest or detection by driving around the Blazer, and was not aware that he was approaching
a roadblock. The roadblock had not been publicized, no warning signs or traffic cones were erected,
and both troopers were invisible to the defendant as he drove up behind the wide, tarp-covered
pontoon boat. Trooper Parsley admitted that it would have been possible for a motorist to mistake
the roadblock for the scene of an accident. Furthermore, had the defendant been attempting to evade

11
Other jurisdictions have reached similar results, concluding that a motorist’s obvious attempts to avoid a
roadblock may provid e the reasonable su spicion sufficient for a brief, investigatory stop . See, e.g. Synder v. State, 538
N.E.2d 961 , 965 (Ind. C t. App . 198 9) (ho lding that driver’s attemp ts to avoid a roadblock by making a turn around “gives
rise to a reasonable suspicion on the part of a police officer that the driver may be co mmitting a crime”); Stroud v.
Commonwealth, 370 S.E.2d 721, 722 (Va. Ct. App. 1988) (concluding that driver’s U-turn and reversal of direction
within 100 to 15 0 feet o f road block gave officer reasonable su spicion for stop); Tims v. State, 760 S.W .2d 78, 79 (Ark.
Ct. App. 1988) (holding that motorist’s action in accelerating past roadblock pro vided reasonable suspicion for stop);
Coffman v. State, 759 S.W .2d 5 73, 5 75 (Ark. C t. App . 198 8) (stating that mo torist’s turn and reversal of direction at
sight of clearly marked roadb lock gave officers re asonable su spicion for stop); City of Las Cruces v. Betancourt, 735
P.2d 1161, 1163 (N.M. Ct. App. 1987) (holding that motorist who proceed ed past roadblo ck at “high rate o f speed ,”
almost hitting two officers, provided reasonable suspicion for officer to stop vehicle).

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arrest, it is unlikely that he would have driven in a direction that took him toward the patrol cars.
Under the unique circumstances of this case, therefore, we conclude that the defendant’s action in
driving around the roadblock did not provide reasonable suspicion to justify an investigative stop
of his vehicle.

The trial court also found that the stop was lawful based on the statute that “when blue lights
are running, the law enforcement officer is running whatever process on the road, . . . .” The trial
court did not cite the specific code section, but we believe that it was referring to the following:

Obedience to police officers.–(a) No person shall willfully fail or
refuse to comply with any lawful order or direction of any police
officer invested by law with authority to direct, control, or regulate
traffic.

Tenn. Code Ann. § 55-8-104 (1998).

Although this statute may authorize a state trooper to command a motorist to stop as part of
the direction or regulation of traffic, it does not authorize the trooper to request the motorist’s
driver’s license, in the absence of probable cause of a traffic violation or reasonable suspicion of
criminal activity. To allow a trooper to demand a motorist’s driver’s license based solely on a state
statute authorizing troopers to direct traffic would undercut the protections against unreasonable
search and seizure afforded by the Tennessee and United States Constitutions, as well as the holdings
of Downey and Hicks.

Accordingly, we conclude that Trooper Parsley had neither probable cause nor reasonable
suspicion to make an investigatory stop.

II. Sufficiency of the Evidence

As his second issue, the defendant argues that the evidence was insufficient to sustain his
conviction for the violation of Tennessee Code Annotated Section 55-50-351. Although our
determination as to the defendant’s first issue makes this claim moot, we will review it because of
the possibility of further appellate review.

In considering this issue, we apply the familiar rule that where sufficiency of the convicting
evidence is challenged, the relevant question of the reviewing court is “whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the offense charged beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). See also State v. Evans, 838 S.W.2d
185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992); Tenn.
R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall be set
aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a
reasonable doubt.”). All questions involving the credibility of witnesses, the weight and value to be

-17-
given the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge,
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory
of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the
rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and
the jury see the witnesses face to face, hear their testimony and
observe their demeanor on the stand. Thus the trial judge and jury are
the primary instrumentality of justice to determine the weight and
credibility to be given to the testimony of witnesses. In the trial
forum alone is there human atmosphere and the totality of the
evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)). A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). When the credibility of the witnesses was resolved by the jury in
favor of the State, the appellate court “may not reconsider the jury’s credibility assessments.” State
v. Carruthers, 35 S.W.3d 516, 558 (Tenn. 2000), cert. denied, ___U.S. ___, 121 S. Ct. 2600 (2001).

Applying these principles, we conclude that the evidence was sufficient for a reasonable jury
to find the defendant guilty beyond a reasonable doubt. Trooper Parsley testified at trial that he
asked three times to see the defendant’s driver’s license, but the defendant refused each time to show
it to him. This testimony was arguably supported, at least in part, by testimony of Ronald Lackey,
a K-9 training coordinator who had stopped at the roadblock in order to talk with Trooper Shearl.
Although Lackey did not testify to hearing Trooper Parsley ask for the defendant’s license, he did
say that he heard Trooper Parsley ask the defendant his name, and that the defendant replied with
“What’s your damn name?” The defendant, on the other hand, testified that the first time he was
asked for his driver’s license was when he was already handcuffed and in the back of the patrol car,
and that he told Trooper Parsley his license was in his wallet in his right rear pocket. The jury
obviously resolved these discrepancies in the proof in favor of the State, and this court may not
reconsider that assessment.

As to the defendant’s claim that the indictment was deficient because it failed to track the
statutory language by omitting the claim that the defendant did not display his license upon demand,
we note that the indictment did allege that the defendant acted “in violation of Tenn. Code Ann. §
55-50-351.” In State v. Carter, 988 S.W.2d 145 (Tenn. 1999), denying the defendant's challenge to
a felony murder indictment which referred to the appropriate proscriptive statute but failed to allege
that the killings were reckless, our supreme court stated:

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 In this case, both felony murder indictments referenced the
appropriate statute. This reference provided notice to the defendant
of the applicable mens rea, notice of the offense upon which to enter
the judgment, and protection from subsequent prosecution on the
same offense. The indictment also meets the requirements of Tenn.
Code Ann. § 40-13-202. The language of the felony murder counts
was legally sufficient under Ruff [978 S.W.2d 95 (Tenn. 1998)].

Id. at 149 (citations omitted).

Accordingly, we conclude that, by its reference to Tennessee Code Annotated Section 55-50-
351, count two of the indictment was sufficient to put the defendant on notice as to what he was
alleged to have done and to prevent reprosecution for the same offense.

CONCLUSION

Based upon the foregoing reasoning and analysis, we reverse the judgment of conviction and
dismiss the charge. The matter is remanded for further proceedings consistent with this opinion.

___________________________________
ALAN E. GLENN, JUDGE

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