As Tennessee high court ventures into letting the constitution be violated but with restrictions, Soddy-Daisy runs a roadblock on New Year’s eve that follows its guidelines. (Photo David Tulis)
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated.” — 4th Amendment to the federal constitution
The state must “safeguard the privacy and security of individuals against arbitrary invasions of government officials” (Camara v. Municipal Court, 387 U.S. 523, 528 (1967))
By David Tulis / Noogaradio 1240 AM 101.1 FM
Chattanoogans innocent of any crime come under surveillance starting Sunday on their free use of the roadways, absent any suspicion of crime or evil doing. The Tennessee Highway Patrol, whose beefy officers serve the Department of Safety and Homeland Security, will be blockading local economy and free flow of travelers through Feb. 9 in Hamilton County.
News of the friendly little choke-off of the travel pleasures of members of the public is announced in the Chattanooga Times Free Press’s Tuesday editions in a little 1-column story just at the fold of Page B5. The public notice is part of a Tennessee Supreme Court ruling that says roadblocks for alleged safety purposes must be as unobtrusive as possible against the rights of the people.
The stated purpose is “to help enforce Tennessee driver’s license laws and ensure motorists’ safety,” the story says, citing a news release. “Troopers will concentrate on vehicles driven by motorists who violate driver’s license laws because these unqualified drivers present a significant danger to the public, according to the highway patrol.” The story does not reveal the schedule or location of the checkpoints.
I could not find any details of the Chattanooga-area chokepoints at DOSHS’ website.
A dark night on Suck Creek Road
The ruling that prompts state bureaucrats and state trooper supervisors to publish news releases in the press is that of Larry Hicks, who had the unhappy chance on Oct. 11, 1997, about 1:15 a.m., to be stopped on Suck Creek Road near the Hamilton and Marion county lines. Like those blockades coming next week, the one that snagged Mr. Hicks was conducted ostensibly to check for “free drivers” — people without licenses. Six officers were involved, including two each from the THP, Chattanooga corporation police and Red Bank corporation police.
Mr. Hicks showed his driver’s license. But an officer “detected the smell of marijuana” coming from the car and sent in a relaxed police canine wagging its tail nearby. The dog went wild and Mr. Hicks was placed under arrested.
Mr. Hicks sought to suppress evidence of a five pounds of marijuana seized from his front seat.
The conflict in court and on appeal was how badly the Hamilton County roadblock was executed, and how much it offended the rights of the people. “We are unsure how law enforcement officers have come to believe that drivers’ license roadblocks may be operated with less concern for constitutional requirements than sobriety roadblocks,” Chief Justice Micky Barker of Chattanooga wonders in a footnote. “Article 1, section 7, certainly makes no distinction ***. To be sure, no authority from this Court exists for the proposition that drivers’ license checkpoints may be operated under different or lessened constitutional standard merely because of the label that attaches to them.”
The local roadblock was defective for several reasons, and evidence of contraband was ordered suppressed as evidence. I convert the court’s finding of the roadblock’s defects into a brief prescription to tuck away in the back of your mind. Here are clues in determining if the roadblock that has shanghaied you is worth an on-the-spot citizen investigation.
➤ Advance publicity. The story in the Times Free Press is part of this obligation to let the public know about roadblocks. The story gives no details, locations or schedules, however, giving the discerning motorist a way to avoid their offense. ‡
➤ Roadblock must give warning well before you arrive at it, and there must be lights, signs establishing its authenticity and other features that are part of it enhancing public safety, not reducing it. The Hicks ruling does not speak to the right of the motorist to turn off the road and go another way before the trap is sprung. If you see a sign for a roadblock and don’t to go through it, take the first opportunity to divert your route, I suggest, even go back and go another way. You are under no obligation to enter a police roadblock, though a turnaround might evoke suspicion.
➤ All cars must be stopped in both directions “unless congested traffic requires permitting motorists to pass through.” This feature mitigates the intrusiveness of the driver’s license check. The stop must be “in a safe and visible area.”
➤ “Marked patrols cars with flashing emergency lights” help establish the warning to the public and add to safety factor of blocking traffic on the roadway. The lack of flashing lights, highly visible at night from a distance, means the roadblock violates the Hicks rule. “The presence of advanced warning signs also ‘reassure[s] motorists that the stop is duly authorized,’ thereby diminishing the possibility of surprise, concern or fright.”
Again, the state’s goal is to impose roadblocks, but cause the least disturbance or “fright” to the free people of the state.
➤ The roadblock must be “established and operated in accordance with predetermined operational guidelines and supervisory authority.”
Administrative authority would be hard to determine on the scene. But the matter would emerge in the court case. On the side of the road, you could ask if the blockade is approved by police and/or highway patrol administration, and ask the name and rank of the supervisor. How does this rule benefit you? It forbids lone ranger cops setting up “pretext or subterfuge” roadblocks “to further illegitimate law enforcement practices” for a fishing expedition into your business, including a questioning about your identity, your possessions or travel plans. The people who operate the roadblock CANNOT be the ones who planned it; authority for the roadblock has to come from administration.
Though the absence of any one of these factors doesn’t not necessarily invalidate a roadblock, “they each weigh heavily in determining the overall reasonableness of the checkpoint,” Judge Barker says in the 22-page ruling.
Most important bar to offending you, the motorist
The value of Hicks is the safeguards on officer discretion and fishing expeditions. “The most important attribute of a reasonable roadblock is the presence of genuine limitations on the discretion of the officers in the field.”
Roadblocks often are fruitless exercises of police power. Judge Barker notes that at the suppression hearing the state indicated the late-night scheme “did not uncover a single driver who was operating a vehicle without a valid license.”
He seems to invite police to beef up their stated rationale for the roadblocks, or their marketing materials about roadblocks, by making a show of having a genuine public safety purpose behind them. This part of the opinion seems like friendly advice to law enforcers. It left me with an uneasy feeling, as if he were telling officers just to propagandize loudly enough to make public safety the stated issue. I’ll need to think about this point before saying anything else.
‡ I left a message with DOSHS media person Jennifer Donnals on Wednesday after she had left for home. I request the locations and schedule of these stops. I would like to help the department fulfill its duty to help in the notorious publication regarding roadblocks, to serve the public good by helping its members maintain their rights.
[This comment appeared first at Chattanoogan.com in response to the above essay published there. It is repeated here by permission. DJT]
I would like to take a moment to comment on this commentary/opinion given by Mr. Tulis, as I was the officer who initially stopped the defendant when his vehicle approached the roadblock. As with any case, upon appeal, there are things that were not told when it was argued before the judge, as no testimony is given, only arguments from the prosecution and defense.
The facts of this case are as follows:
1. I was, at the time, a detective with the Red Bank Police Department and was tasked with assisting the Chattanooga Police Department and Tennessee Highway Patrol in the conduct of this roadblock, which was set up in an attempt to apprehend a family of car thieves who, at the time, resided in Marion County.
2. This family was responsible for dozens of auto thefts in the Red Bank and Chattanooga areas. Several of these auto thefts resulted in very dangerous high speed pursuits.
3. After these subjects were identified as suspects and warrants were obtained, one or more of them committed the offense of arson, targeting the home of one of the Chattanooga auto theft detectives involved in the case.
4. The primary suspect was contacted via phone and was asked to turn himself in on the warrants. His response was laughter and hanging up the phone.
5. Very reliable information was obtained, by several different informants, that indicated that the suspects were traveling daily to Chattanooga, via Suck Creek Road, and that many members of the Suck Creek community were aiding them in evading police.
6. The decision was made to conduct roadblocks, at varying times of the day and night, on Suck Creek Road in an attempt to apprehend the suspects and several agencies were involved (Chattanooga Police Department, Red Bank Police Department, Tennessee Highway Patrol and the State Fire Marshal’s office). They were planned a week or so in advance.
7. These roadblocks had been conducted for several days prior to the defendant (in this case) approaching the roadblock, with traffic in both directions being stopped. There were marked patrol cars, with blue lights activated, at each of the roadblocks and officers in uniform. I was in plainclothes, wearing a jacket with “POLICE” emblazoned across the back in gold letters on the night of this incident. We periodically would wave vehicles through, without checking for a driver’s license, etc. Instead, as that vehicle passed, we would shine a flashlight into the vehicle to ensure that no one was hiding in the floorboard or back seat.
During the previous days, while we were conducting the roadblocks, the primary suspect would periodically call the Chattanooga Police Department and inform the dispatcher who he was, and that he would be coming off of the mountain via Suck Creek Road, and that he was going to shoot any officers out there.
**Note: Not one driver was detained any longer than it took to conduct a visual inspection of their driver’s license. Many citizens traveling Suck Creek Road during this period, expressed their gratitude for us being out there and a good many passed on tidbits of information as to where we might find the suspects which we sought.
8. The defendant’s vehicle was one of those that was being waved through, with me waving a flashlight indicating that he could proceed. The defendant voluntarily stopped his vehicle when he reached me and he then rolled down his window, with a burning marijuana cigarette hanging from his mouth. He handed me his driver’s license and informed me that it was revoked from a previous DUI. It was at that time that I instructed him to pull to the side of the roadway and he complied. As he stepped out of his car, he threw down the burning joint and removed his hat, at which time I saw another joint tucked behind his ear. A subsequent search of his vehicle revealed the five pounds of marijuana, in plastic Bi-Lo bags, lying on the front seat.
9. Due to the fact that we were within the Chattanooga city limits, a Chattanooga Police officer made the arrest of the defendant and at no time was a dog present during this stop.
10. I was never called to testify as to my actions leading up to this arrest, otherwise there may have been a completely different ruling in this case on appeal.
11. I have no idea where some of the “facts,” mentioned in the appeal came from.
You may call what we did a “fishing expedition,” but I call it good police work. We were out there, after exhausting all other means of apprehending these suspects, and shaking bushes. The fact of the matter is, a day or so after this arrest, one of the primary suspects in the auto theft ring was in fact arrested at one of our roadblocks. Another fact, surrounding his arrest, is that he almost died that day when he attempted to pull a .45 caliber pistol on the two state troopers who discovered him hiding under a coat in the back seat of a car. These suspects were responsible for several hundred thousands of dollars in insurance claims due to stolen vehicles that were never recovered, not to mention the arson and other property damage that they committed while trying to elude police on several occasions.
I am a firm believer in our Constitution and, during the 20 years that I was a police officer, I did my level best to never violate a citizen’s rights guaranteed to them under the Constitution. However, for decades now, liberal defense attorneys and the courts have consistently found ways to tie the hands of the police, making it harder for us to do our jobs. You dang near have to have a law degree to be a police officer nowadays, to make sure that you did everything by the book and that you aren’t going to be beaten or chastised in court, or having to answer to Internal Affairs.
The job used to be fun. I got to meet people from all walks of life and help the when they needed help. I took pride in taking bad guys off of the streets and I was, and still am, proud of my conviction rate (on the cases that actually went to trial and weren’t pled down – but that is a story that I could write about for days). Now it is just a job…where the bad guys have all of the rights and defense attorneys keep putting these guys back on the street (Hey, it’s job security for them and they just might get their name published in a law review or something) to make more innocent citizens into victims.
Another fact is, publishing the locations of roadblocks only endangers the public when it comes to drunk drivers, or allows a burglar or armed robber to plan out his avenue of escape. It is a totally asinine rule that provides no deterrent to criminals. The courts might as well give that drunk driver, who might otherwise have been deterred from driving drunk, a beer before he gets behind the wheel…or in this case, help load the five pounds of marijuana in the car so that it can be driven to its destination with no fear of being stopped at a roadblock.
There is no deterrent in our justice system. The bad guys pay their lawyers to wheel and deal, more often than not ending up on some level of probation, only to be back on the streets doing the same thing all over again. I honestly do not know why I typed those last two sentences…every citizen in Chattanooga and around the country knows it. You only have to read the paper or watch the news, or better yet, go to http://www.hamiltontn.gov and work your way to viewing the court dockets. You will see the same names, week after week. Then take those same names and search them on the court dates and disposition page. Then you will see that some people need the key thrown away. You can not rehabilitate a person who does not want be rehabilitated.
To my brothers and sisters still out there working the streets, be safe and God Bless.
Marty Penny
Kabul, Afghanistan