08/21/2018 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE October 10, 2017 Session

STATE OF TENNESSEE v. ROBERT A. FRANKLIN Appeal from the Criminal Court for Hamilton County No. 286862 Don W. Poole, Judge ___________________________________

No. E2017-00334-CCA-R3-CD ___________________________________

The Hamilton County Grand Jury indicted Robert A. Franklin, the Defendant-Appellant, for driving under the influence of an intoxicant (DUI by impairment), driving while the alcohol concentration in his blood or breath was 0.08% or more (DUI per se), violating the financial responsibility law, and violating the vehicle registration law. Prior to trial, Franklin filed a motion to suppress evidence from his search, seizure, and arrest on the basis that the sobriety checkpoint where this evidence was obtained was unconstitutional. After the trial court denied this motion to suppress, Franklin filed a motion to reconsider, which was also denied. Franklin next filed a motion to dismiss the indictment, or in the alternative, to exclude the evidence from his blood test, arguing that Code section 55-10- 413 is unconstitutional because it creates a fee system that violates the right to due process and a fair trial. Although Franklin’s request to dismiss the indictment or exclude the evidence was denied, the trial court granted his request for a jury instruction regarding the fee in Code Section 55-10-413(f). Thereafter, during voir dire, Franklin asserted that the State engaged in purposeful discrimination in violation of Batson v. Kentucky, 476 U.S. 79 (1986), when it used its peremptory challenges to exclude two African-American individuals from the jury pool. At the ensuing trial, the jury convicted Franklin of DUI per se and violating the vehicle registration law but acquitted him of DUI by impairment, and the State dismissed the charge for violating the financial responsibility law. On appeal, Franklin argues that the trial court erred in: (1) denying his motion to suppress because the checkpoint was unconstitutional; (2) overruling his Batson challenge; and (3) denying his motion to dismiss the indictment, or in the alternative, to exclude the evidence based on the unconstitutionality of Tennessee Code Annotated section 55-10-413(f) (2017). Because the trial court erred in denying the motion to suppress given the unconstitutionality of the checkpoint, we reverse the judgments of the trial court, vacate Franklin’s convictions, and dismiss the charges.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed; Convictions Vacated; Charges Dismissed

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and ROBERT L. HOLLOWAY, JJ., joined.

Jerry H. Summers, Chattanooga, Tennessee, for the appellant, Robert A. Franklin.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; Neal Pinkston, District Attorney General; and Kate Lavery, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Motion to Suppress. Franklin filed a motion to suppress, as well as two supplements to this motion, generally arguing that evidence from his search, seizure, and arrest should be suppressed because the sobriety checkpoint where this evidence was obtained violated the Fourth Amendment of the United States Constitution and article I, section 7 of the Tennessee Constitution.

At the April 15, 2013 hearing on Franklin’s motion to suppress, District Captain David McGill of the Tennessee Highway Patrol (THP) testified that he requested a sobriety checkpoint, or roadblock, take place on June 15, 2012, from 11:00 p.m. to 12:30 a.m. at an old motel on Cherokee Boulevard in Chattanooga (hereinafter “checkpoint”). Captain McGill stated that he completed a THP Checkpoint Request/Authorization form (hereinafter “Request/Authorization form”) regarding his request and that this checkpoint was approved by Lieutenant Colonel Wayne Springer, his superior officer. This Request/Authorization form, which was admitted as an exhibit, stated that “[a]ll personnel participating in Checkpoints will be responsible for following procedures outlined in General Orders” and ordered that “[a]ll” vehicles at the checkpoint would be “momentarily stopped and the operator asked to exhibit the necessary information.”

Captain McGill acknowledged that although the normal procedure was to provide advance notice of the checkpoint to the media, the media was never notified of this checkpoint. The THP Checkpoint Site Selection/Removal Checklist form (hereinafter “Site Selection/Removal Checklist”) for the Cherokee Boulevard site, which was entered as an exhibit, had boxes that could be checked if certain factors had been considered for a particular checkpoint location. For the checkpoint in issue, all of the boxes on the form were checked, indicating that the following factors had been considered for that site: the frequency of traffic violations or traffic crashes; historical statistical evidence and the knowledge of alcohol related or other types of crashes where impairment was indicated as a contributing factor; the location provided for the safety of motorists and officers and provided adequate visibility for oncoming traffic; the location avoided undue inconveniences to the public; the location gave motorists adequate prior warning that a checkpoint was ahead; the location provided sufficient space to display adequate advance warning signs and sufficient lighting to ensure motorists’ and officers’ safety; the location provided ample room for police and subject vehicles; the location provided a safe area to move a vehicle from traffic in the event further inquiry of the driver was necessary; the location was away from businesses, residential driveways, alleys, and intersecting streets or highways that could be impacted by the operation; the location was free from obvious hazards on the highway; and the deterrent effect created by the operation of the checkpoint.

Captain McGill noted that he and Lieutenant Phillips signed this Site Selection/Removal Checklist.” The form itself shows that Lieutenant Phillips and Captain McGill signed the form on December 31, 2010, approximately two-and-a-half years prior to the time the checkpoint took place. Lieutenant Phillips signed under the portion of the form stating “Inspected By.” The form also had boxes where the District Captain could check “Approved” or “Denied,” and Captain McGill checked the box for “Approved.”

Captain McGill affirmed that he was not present at the checkpoint. He acknowledged that he could not confirm whether all the factors marked on the Site Selection/Removal Checklist had actually been considered prior to choosing the June 15, 2012 checkpoint location, only that these were the factors the Tennessee Highway Patrol had said it considered when choosing this site.

THP Lieutenant Christie Phillips testified that she and Captain McGill requested the checkpoint and that the checkpoint had been approved by Lieutenant Colonel Springer, their superior officer. Lieutenant Phillips said the checkpoint site had come from a list of approved sites that had been prepared “years ago,” prior to the time that she became a lieutenant. She said that this particular site was chosen because there had been crashes on Highway 27, but because THP could not conduct a checkpoint on Highway 27, they had chosen Cherokee Boulevard as the location for the checkpoint because it ran parallel to Highway 27. Lieutenant Phillips confirmed that an event known as the Riverbend Festival had taken place on the same night as the checkpoint.

Lieutenant Phillips confirmed that neither she nor Captain McGill worked at the checkpoint and that the site supervisor had the discretion to cancel the checkpoint for bad weather or insufficient personnel. She also said that if traffic became congested, the site supervisor also had the discretion to wave traffic through in order to keep vehicles moving for safety reasons. Lieutenant Phillips identified Exhibit 3, General Order 410-1 (“the Order”), which supplied the guidelines the THP used for sobriety checkpoints. She stated that Section (E) of this Order required that the supervisor not participate in stopping vehicles, that there be at least four uniformed personnel at the checkpoint, and that the supervisor determine the number of other personnel involved in the checkpoint. She also said that Section (F) of this Order provided the standard operating procedure requiring the use of traffic cones, marked patrol vehicles, good lighting, and vests and flashlights by officers. In addition, Lieutenant Phillips noted section (G) stated that sobriety checkpoints were to be conducted for a minimum of one hour and a maximum of two hours. She confirmed that the site supervisor had the discretion to terminate a checkpoint if the site was causing a hazardous condition.

Lieutenant Phillips stated that she and Captain McGill signed the THP Checkpoint Activity Report (“Activity Report”), which was completed after the conclusion of the checkpoint. This Activity Report showed the date, time, and location of the sobriety checkpoint, the personnel participating in the checkpoint, the fact that patrol units had their emergency lights activated, that the site had been approved, that the media had been notified, that traffic cones had been used, and that the checkpoint location had been illuminated. The report specifically stated that THP Sergeant David Matthews, Trooper Billy Collins, and Trooper Ronnie Swafford as well as six police officers, presumably from the Red Bank Police Department (RPD), were present at the June 15, 2012 sobriety checkpoint. Lieutenant Phillips confirmed that although the “media notified” box on the Activity Report had been checked, the media had not been notified of the checkpoint. She added that this was the first time she was aware of the media not being notified of an impending checkpoint. The State stipulated that a media release had not been completed for this checkpoint.

A copy of the Activity Report, which was entered as an exhibit, specified that a review of department guidelines had been conducted, that the site had been approved prior to the checkpoint, that the site had been approved by Lieutenant Phillips, and that the media had been notified by way of “radio” and “printable” materials. The Activity Report also stated that it had been “submitted by” and “keyed by” Sergeant Steve Bearden, an officer who was not present at the checkpoint.

Lieutenant Phillips confirmed that 285 vehicles passed through the checkpoint on June 15, 2012. He stated that one person was written a citation for “DUI,” eight individuals were written citations for “DWI,” and several individuals were written citations for “open container” and other minor violations during the checkpoint. Lieutenant Phillips also said that one person was arrested for a felony and one person was arrested for a misdemeanor at the checkpoint.

Lieutenant Phillips acknowledged that there were only three THP officers at the checkpoint even though Section III(E)(2)(a) of the Order required a minimum of four uniformed officers. She said that because she was not present at the checkpoint, she relied upon what the officers, who were present at the checkpoint, told her regarding the location of the traffic cones and vehicles. After acknowledging that the THP kept statistics regarding vehicle wrecks in specific areas, Lieutenant Phillips identified a document from the THP that contained statistics for traffic crashes on Cherokee Boulevard in the area between Frazier Avenue, North Market Street, and West Bell Avenue, the general area in which the checkpoint in this case was located. This document, which was admitted as an exhibit, stated that during the period from 2003 to 2012, there were no alcohol-related crashes involving fatalities and only four alcohol- related crashes with injuries at the location of the June 15, 2012 checkpoint. The record shows that Lieutenant Phillips did not actively consider these statistics when the decision to have a checkpoint at that location was made and that the site for the checkpoint came from a preauthorized list of locations for checkpoints.

THP Sergeant David Matthews testified that he was the site supervisor for the checkpoint conducted on June 15, 2012, on Cherokee Boulevard. He confirmed that he had nothing to do with the selection of the checkpoint location, the authorization of the checkpoint, or the time of the checkpoint. Sergeant Matthews said he conducted a pre- checkpoint briefing, where he told the officers that they should stop every vehicle momentarily and that if they did not observe any signs of impairment or another violation, they should allow the vehicle to pass through the checkpoint. Sergeant Matthews added that he “[n]ormally” completes the Activity Report. When asked how the media notification box was checked on the Activity Report when no media notification actually occurred for this checkpoint, Sergeant Matthews said that as site supervisor, he had “no way of really knowing” whether the media had been notified. He said he was “under the assumption” that the media had been notified because the checkpoint had been approved by the chain of command and that “the chain of command in the higher ups [we]re the one that’s [sic] supposed to see to that.”

Sergeant Matthews said signs were placed to warn drivers of the checkpoint, and street lights and a four-lane road provided sufficient light and space to ensure the safety of motorists and officers. He also said there were parking lots located close to the site, where vehicles could be moved if further investigation was needed. Sergeant Matthews asserted that although THP policy required that the checkpoint last a minimum of one hour and a maximum of two hours, he had the authority as site supervisor to terminate the checkpoint for bad weather, or an emergency, or if arrests reduced the number of officers present at the checkpoint. He said that while a supervisor and three officers were required to be present, these officers did not have to be state troopers. Sergeant Matthews confirmed that he, Trooper Collins, and Trooper Swafford were the only state troopers at the checkpoint.

Sergeant Matthews said that when Trooper Collins and Trooper Swafford left the checkpoint to transport Franklin following his arrest, he was the only THP officer at the site, so he decided to terminate the checkpoint. Although Sergeant Matthews acknowledged that he could have continued the checkpoint with just the officers who were present from the Red Bank Police Department, he claimed this would have kept these Red Bank officers from responding to their priority calls.

Sergeant Matthews also stated that he terminated the checkpoint for safety reasons because of heavy traffic. He explained, “After about an hour[,] Riverbend [Festival] had started letting out pretty heavily[,]” and they were “getting an extreme amount of traffic coming through the tunnel” and could not allow the vehicles to back up into the tunnel for safety reasons. Sergeant Matthews said that at that point, the officers were motioning so much traffic through that they were unable to check anyone, so he terminated the checkpoint.

Sergeant Matthews was unable to recall where he was when Franklin came through the checkpoint and could not remember whether traffic became congested before or after Franklin passed through the checkpoint. He acknowledged that he did not personally notify the district attorney of this checkpoint, as was required by the Section D of the Order. In addition, although Section D required that all local law enforcement agencies within the jurisdiction be notified of the checkpoint, Sergeant Matthews was unsure whether the Chattanooga Police Department or the Hamilton County Sheriff’s Office had been notified in accordance with the Order. Moreover, although the Order required the district captain to prepare a press release to the local media stating that the Tennessee Highway Patrol would be conducting checkpoints, he did not personally ensure that this was done. Sergeant Matthews admitted that he did not ensure that all the requirements listed on the Site Selection/Removal Checklist were completed and assumed that Lieutenant Phillips and Captain McGill, who signed that form, had made sure that those requirements had been completed.

Sergeant Matthews acknowledged that all checkpoints had to be recorded. He stated that although he had not viewed these recordings, a video recording had been made of the vehicles passing through the checkpoint and a second video recording had been made of Franklin’s field sobriety tests. He stated, “[I]f you’re talking to the subject and anything you’re doing with the subject[,] then you’re supposed to have [the microphone] on. But if they’re discussing things between themselves about it[,] then they can [turn the microphone off].” While Sergeant Matthews said he would not recommend that THP officers turn off their microphones while discussing a subject’s performance on field sobriety tests, he was unsure whether doing so was actually a violation of THP policy.

THP Trooper William Collins testified that he stopped Franklin at the checkpoint. At the time of the stop, he noted that Franklin had “an odor of intoxicant” emanating from his person and saw that Franklin’s license tags had expired. Thereafter, Trooper Collins and his trainee, Trooper Swafford, had Franklin perform field sobriety tests, and based on Franklin’s performance on these tests, Trooper Collins believed Franklin was impaired. When Trooper Collins was asked whether he thought it was necessary that his dialogue with trainee Trooper Swafford be included in the video recording from the checkpoint, he replied, “Yes. I mean, you know, I don’t want it to look like we’re hiding anything.” Trooper Collins said that if the video recording did not include his conversation with Trooper Swafford, this was “[b]y accident.” He stated that Franklin’s blood alcohol content was later found to be 0.12%.

Trooper Collins asserted that there was a tunnel near the checkpoint, and there were signs instructing drivers about the checkpoint on the north end of the tunnel. Once a vehicle entered the tunnel, there was no way to turn around to avoid the checkpoint, and the only way to avoid the checkpoint was to exit the tunnel and then turn down Ashmore Avenue. Trooper Collins said that as traffic began backing up in the tunnel, the site supervisor told them to wave vehicles through the checkpoint. He did not recall whether Franklin was stopped at a time when all the vehicles were being stopped or when traffic was being waved through the checkpoint. He confirmed that when traffic began backing up into the tunnel where it could cause an accident, then the site supervisor instructed them to wave traffic through the checkpoint. The recordings of Franklin’s field sobriety tests and arrest as well as the two recordings of the checkpoint were introduced as exhibits during Trooper Collins’ testimony.

THP Trooper Ronnie Swafford testified that he noticed that Franklin had an expired tag as he was passing through the sobriety checkpoint. He approached Franklin’s window, told him his tag had expired, and asked him if he had been drinking that night. When Franklin responded that he had consumed a couple of drinks, Trooper Swafford noticed that Franklin had “a little slurred speech” and “was fumbling around in the vehicle looking for his insurance and for his registration.” Franklin was also looking for his driver’s license in his billfold, even though his license was hanging from a lanyard around his neck. In addition to these observations, Trooper Swafford said he smelled alcohol coming from Franklin’s person. At that point, he asked Franklin to pull over to the side of the road, where he had him perform field sobriety tests. When Franklin performed poorly on these tests and had indicators showing his blood alcohol concentration (BAC) was above the legal limit, he was arrested. Because Trooper Swafford and Trooper Collins left the scene after they arrested Franklin, Sergeant Matthews was the only trooper who remained at the checkpoint. Franklin’s impairment was later verified when TBI testing of Franklin’s blood sample showed that his BAC was 0.12%.

Trooper Swafford acknowledged that the checkpoint was on one side of the tunnel and that all of the signs warning drivers were on the same side of the tunnel as the checkpoint and the officers. He said that he and the other officers waved cars through the checkpoint when traffic became congested in the tunnel and that he did not recall any backup of vehicles when Franklin came through the checkpoint. Trooper Swafford acknowledged that he and Trooper Collins turned their microphones off when they conferred after Franklin completed his field sobriety tests.

Following Trooper Swafford’s testimony, a letter from THP Administrative Sergeant James D. Van Dyke was entered into evidence. This letter, which was in response to defense counsel’s request for information about the June 15, 2012 checkpoint, stated that “[r]ecords pertaining to media notification [of the June 15, 2012 sobriety checkpoint in Hamilton County], required by Department of Safety General Order 410-1, could not be located,” which led Sergeant Van Dyke to conclude that “the required media notification of this sobriety checkpoint was not accomplished.” This letter explained that the only records related to this checkpoint were “the request and approval to hold this checkpoint and the checkpoint activity sheet.”

Jeffrey Street testified that on June 15, 2012, he left his work and drove downtown to pick up his friend Melissa Powell, who had attended the Riverbend Festival. Street drove Powell to her car on the North Shore. Thereafter, Street and Powell, who were in separate cars, drove down Cherokee Boulevard to Dayton Boulevard, where they drove through the tunnel prior to encountering the checkpoint. Street said that there were not a large number of vehicles stopped as he went through the tunnel and that he did not recall a lot of traffic as he approached the checkpoint. He added that he was allowed to go through the checkpoint without being stopped.

Melissa Powell testified that when she drove through the tunnel on Cherokee Boulevard, she saw blue lights flashing. She stated that she never saw any indication that there was a checkpoint before she exited the tunnel. Powell said she stopped prior to reaching the checkpoint but was allowed to pass through the checkpoint without being questioned by any officers and without having to roll down her window. She said she drove through the checkpoint at 11:45 p.m., and there did not appear to be a lot of traffic backed up in the tunnel at that time, although she acknowledged that there was traffic on the road.

On May 10, 2013, the trial court entered an order denying the motion to suppress, which stated in pertinent part:

The Court understands the [S]tate to contend that, because [State v. Downey, 945 S.W.2d 102 (Tenn. 1997),] recognizes a compelling state interest in deterring motorists from driving under the influence of an intoxicant and sobriety checkpoints on public roads advance that interest, it need never prove that any particular checkpoint advances that interest. The Court agrees that Downey recognizes, for all cases, a compelling state interest in deterring motorists from driving under the influence of an intoxicant. It respectfully disagrees, however, that, by also recognizing the value of sobriety checkpoints, Downey entirely establishes the value of any particular checkpoint. The [Elliott] Aloyo court does not treat Downey as doing so. It remarks on the number of arrests at the checkpoint and the possible deterrent effect of the checkpoint because of prior publicity before finding that “this checkpoint has met the second prong of the Downey test,” [No. M2008-02359-CCA-R3-CD, 2010 WL 596435, at *4 (Tenn. Crim. App. Feb. 19, 2010)].

In this case, unlike Aloyo, there was no advance publicity and therefore no possible advance deterrent value. In addition, the arrest rate in this case, one arrest in one hour, was twenty-five percent less than in Aloyo, three arrests in two-and-one-quarter hours, or one arrest in three- quarters of an hour. Furthermore, in this case, unlike Aloyo, apparently, there was no knowledge or review of recent statistics from the site and the only reason for the selection of the site was a years-old approval.

It seems to the Court, however, that what gives the checkpoint in this case deterrent value, future deterrent value, is its proximity, temporal and spatial, to a summer festival at which, presumably, some festival goers consume intoxicants. Nor does the Court regard the termination of the checkpoint after one arrest as nullifying this value. Although the initial number of uniformed officers in this case and the number of officers in Aloyo, nine, was the same, one of the officers in this case was in training. In addition, the traffic in this case, more than two hundred eighty-five vehicles (two hundred eighty-five vehicles checked; an unknown number greater than two not checked) in one hour was more than twenty percent heavier than in Aloyo, five hundred twelve vehicles (five hundred eleven vehicles checked and one vehicle not checked) in two and one-quarter hours.

The Court understands the defendant to contend there were several flaws in the execution of the checkpoint and, as a consequence, even if the checkpoint satisfies the public-interest and efficacy parts of the Downey test, it does not meet the interference-with-individual-liberties part of the Downey test. The Court respectfully disagrees.

First, the officers in the field did not make the decision to conduct the checkpoint. A superior did so. Second, in conducting the checkpoint, the officers in the field were implementing “neutral standards previously fixed by an administrative decision or regulation[,”] the general order, Exhibit 3.

Third, the lack of one or more avoidance routes before the checkpoint does not violate the general order. The general order contains no requirement that one or more avoidance routes be available to motorists who wish to avoid the checkpoint. Section V(H) of the order provides as follows:

The placement of personnel at locations to observe for and procedures to follow when detection occurs of a motorist turning around to avoid the checkpoint will also be addressed [in the pre-checkpoint briefing].

1. A motorist who chooses to avoid a checkpoint should be allowed to proceed unless traffic violations are observed or probable cause exists to take other action.

Fourth, that officers did not stop all vehicles does not necessarily violate the general order. The checkpoint authorization, Exhibit 1, requires officers to stop “all” vehicles and ask their operators to exhibit the necessary information. The checkpoint-activity report, Exhibit 4, also states that the predetermined sequence or pattern for stopping vehicles was “every vehicle[.”] Subsection III(G)(5)(c) of the general order, however, provides in part:

If traffic backs up creating a hazardous condition, all vehicles will be allowed to pass until the back-up is cleared.

In this case, Mr. Street testified that officers did not stop him, though traffic in the tunnel was unremarkable, and Ms. Powell, who was following Mr. Street, testified that she stopped at the checkpoint but did not open her window. Mr. Street and Ms. Powell, however, may not have noticed congestion in the tunnel because they arrived at the back of a group of vehicles cleared through the checkpoint and were included in the group. The site supervisor was in a better position than any motorist to assess the necessity to clear traffic.

- 10 -

Nor does the average volume of traffic belie the site supervisor’s testimony in this respect. In Aloyo, nine officers were able to stop an average of about five cars a minute without having to clear congestion. Traffic, however, ebbs and flows. It is not reasonable to presume a constant volume. In addition, the rate of detentions in this case, ten in one hour, was more than twice than in Aloyo, nine in two-and-one-quarter hours. Absent a video recording of the checkpoint approaches that belies the site supervisor’s account of the necessity to clear traffic through the checkpoint, the Court accredits his testimony that there was such a necessity.

Fifth, in finding the site supervisor in a better position than motorists to assess congestion at the checkpoint, the Court recognizes the difficulty for defendants in challenging the execution of a sobriety checkpoint without a video recording. The general order, however, does not require a video recording. Nor does any Tennessee case of which the Court is aware.

Sixth, the early termination of the checkpoint after one hour for lack of personnel does not necessarily violate the general order. In criticizing the decision to terminate the checkpoint on the ground that his arrest occupied only two troopers, leaving the site supervisor and six [Red Bank Police Department] officers to man the checkpoint, the defendant does not consider that the number of personnel above the minimum necessary to man a checkpoint depends in part on the volume of traffic and the coincidence, number, and duration of other detentions.

Seventh, although the record does not contain proof that the checkpoint was bi-directional, as section III(G)(5)(a) of the general order requires, the Court does not attribute the omission to a violation of the general order in this respect. The defendant did not allege any violation of the general order in this respect.

The Court does find one flaw in the execution of the checkpoint: the lack of advance publicity. The site supervisor assumed and reported media notification, but, as a letter to counsel, Exhibit 8 reflects, officials were unable to locate any record of media notification. As the [S]tate contends, however, the constitutionality of a checkpoint does not depend on flawless execution and no one circumstance is necessarily outcome determinative. Considering that the lack of media notification did not deprive the checkpoint of all deterrent value, only advance deterrent value, the Court does not regard this omission as outcome-determinative. - 11 -

Motion to Reconsider. On June 30, 2013, Franklin filed a motion to reconsider the denial of the motion to suppress, arguing that testimony from the April 15, 2013 hearing established that the sobriety checkpoint failed to comply with the Order because (1) there was no warning of the checkpoint until after the cars had entered the area of the checkpoint, (2) there was no media announcement given prior to the checkpoint and (3) the State and its agents failed to preserve audio recordings related to his field sobriety tests that were critical to establishing that the checkpoint was conducted in conformity with the Order and constitutional mandates.

At the September 30, 2013 Hearing on Franklin’s motion to reconsider, RPD Officer Mark Taylor testified that he assisted with the checkpoint. He stated that drivers exiting the tunnel could turn onto Ashmore Avenue before they reached the checkpoint and that many drivers did avoid the checkpoint by turning onto this road. Officer Taylor stated that he was at the entrance to the Cherokee Motel, and there were officers closer to the tunnel than he was. He said that no law enforcement officers should have been posted between the tunnel and Ashmore Avenue.

Franklin, the Defendant-Appellant, testified that he attended the Riverbend Festival prior to encountering the checkpoint on June 15, 2012. He said he did not see any signs indicating that there was a checkpoint as he entered the tunnel from the south. However, “[a]bout one or two car lengths” after exiting the tunnel, Franklin observed a “sea of blue lights” and saw officers in the road. Franklin stated that the officers were positioned “right at Ashmore [Avenue] . . . in the intersection essentially” and that he never saw any signs stating that he could avoid the checkpoint by turning onto Ashmore Avenue. He said he did not attempt to avoid the checkpoint, and an officer waved him out of the line of cars “right there at Ashmore.” He recalled being stopped at Ashmore Avenue because he pulled his car over in front of the porte cochere in front of a pet grooming business, which is at the intersection of Ashmore Avenue and Dayton Boulevard. Franklin asserted that he never had an opportunity to avoid the checkpoint and that he never observed any vehicles turning onto Ashmore Avenue that night.

On October 14, 2013, the trial court entered an order denying the motion to reconsider, stating the following:

With respect to the issue of entrapment, to the extent that the defendant now suggests that the constitutionality of the checkpoint stop depends on its consensual nature and therefore on the existence of one or more escape routes, which, in this case, is now perhaps more doubtful that it was, the Court respectfully disagrees. State v. Downey, 945 S.W.2d 102, 104 (Tenn. 1997) and State v. Varner, 160 S.W.3d 535, 547 (Tenn. Crim. App. 2004), classify checkpoint stops as suspicionless seizures. Cf. State v. - 12 -

Moats, 403 S.W.3d 170, 186 n.7 (Tenn. 2013) (noting that, “since the United States Supreme Court decided [Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973)], the community caretaking function has been extended to include ‘sobriety checkpoints, border searches, drug testing, inventory searches, and searches in public schools’”) (citations omitted).

Furthermore, neither Downey nor Varner recognizes a right of avoidance or treats the existence of one or more escape routes as relevant on the issue of the constitutionality of a checkpoint. Presumably, consent would render a Downey analysis redundant.

As for the issue of unpreserved evidence, the defendant does not dispute that the only part of the recording that is inaudible is one or more pre-arrest consultations between trainer and trainee troopers. The Court respectfully disagrees with the defendant that the failure to preserve this evidence entitles him to dismissal of the indictment or a jury instruction on the failure to preserve evidence.

....

The Court finds that the troopers did not have a duty to preserve their consultations. The defendant does not cite and the Court is not aware of any discovery rule that requires the disclosure of such consultations, despite the potential impeachment value of every prior statement. See Tenn. R. Crim. P. 16(a)(1)(G), (a)(2) (conditioning the necessity to disclose the results or reports of examinations, tests, or experiments in part on the existence of the results or reports and generally excepting from disclosure internal state documents and witness statements, respectively). Cf. Tenn. R. Crim. P. 26.2 (requiring production of certain witness statements).

Furthermore, to the extent that the troopers’ consultation is relevant, its outcome, the defendant’s arrest, indicates that, on the whole, their observations and conclusions were not favorable to him. In [State v. Merriman, 410 S.W.3d 779, 795 (Tenn. 2013),] “[t]he lost evidence was significant because it recorded Ms. Merriman’s conduct, which provided the factual basis for her charges.” . . . A consultation between trainer and trainee troopers, however, does not have the same significance to the defense as the conduct underlying a charge.

- 13 - The Court observes that, even if the troopers did have a duty to preserve their consultations and their failure to do so was a matter of policy, as Sgt. Matthews’ testimony at the hearing on the original motion to suppress seems to indicate, the defendant’s conduct, including his performance on field sobriety tests, was reported in an affidavit of complaint at least and was recorded. There is therefore equally or more reliable substitute evidence on the issues of impeachment and guilt. In addition, the significance of the troopers’ consultation(s) remains low. Although, at the second hearing, Off. Taylor did not testify about the reasons for the defendant’s arrest for driving under the influence, at the first hearing, before the sufficiency of the evidence against the defendant was in issue, Sgt. Matthews testified that a video recording was made of the checkpoint and the defendant’s field sobriety tests and [Troopers] Collins and Swafford testified that the defendant smelled of alcohol, admitted that he had been drinking, fumbled for his registration, performed poorly on field sobriety tests, and had a blood-alcohol concentration of twelve- hundredths of one percent. The affidavit of complaint, too, recites sufficient cause for the defendant’s arrest for driving under the influence: his admission to consumption of two or three drinks, the strong odor of intoxicant on his person, and his performance on field sobriety tests, including swaying, having watery eyes, on the walk-and turn, starting too soon, being unable to keep his balance, stepping from the line one time, and not placing heel to toe several times, and, on the one-leg stand, placing a foot on the ground inappropriately and raising his hands. Motion to Dismiss, or in the Alternative, Motion to Exclude. On January 31, 2014, Franklin filed a motion requesting the trial court to dismiss his case, or alternatively, exclude all evidence related to blood or breath testing. In this motion, Franklin argued that Code section 55-10-413 is unconstitutional because it creates a fee system that violates his right to due process and a fair trial. Franklin’s motion was later consolidated for the purpose of argument with the motions of over twenty similarly- situated defendants and heard before the three Hamilton County Criminal Court Judges, sitting en banc. We note that the companion case on this issue is State v. Rosemary L. Decosimo, No. E2017-00696-CCA-R3-CD, 2018 WL 733218 (Tenn. Crim. App. Feb. ^[6], 2018), perm. app. granted (Tenn. Mar. 21, 2018). On March 21, 2018, the Tennessee Supreme Court granted the State’s application for permission to appeal our decision in Rosemary L. Decosimo on the issue of whether the fee system established in Code section 55-10- 413(f) violates due process. State v. Rosemary L. Decosimo, No. E2017-00696-SC-R11- - 14 - CD (Tenn. Mar. 21, 2018) (order granting the State’s application for permission to appeal pursuant to Tennessee Rule of Appellate Procedure 11(a)). Because Franklin’s motion on the unconstitutionality of Code section 55-10-413 was consolidated for the purpose of argument with Decosimo’s motion as well as the motions other similarly-situated defendants, the proof offered at Franklin’s motion hearing is substantially the same as that offered at Decosimo’s motion hearing, and a detailed summary of this proof can be found at Rosemary L. Decosimo, 2018 WL 733218 at *1-6. Denial of Motion to Dismiss, or in the Alternative, Motion to Suppress. On December 11, 2014, the three Hamilton County Criminal Court Judges, sitting en banc, entered an order denying the motion but granting the defense’s request for a jury instruction. In this order, the trial court made the following findings of fact and conclusions of law: [W]hat the Court must determine is whether the statute in issue creates such pressure on TBI forensic scientists and expert witnesses that admission of their evidence deprives defendants of due process or a fair trial. The statutory financial interest is not negligible. It is true that, in any one case, the interest is small. Were there no statute, i.e., were there no reason to consider more than one case at a time, thorough cross- examination and jury instruction would suffice to preserve a defendant’s rights to due process and a fair trial. The statute, however, not only creates a contingent-fee system, like the one in Brown [v. Edwards, 721 F.2d 1442 (5th Cir. 1984),]; it creates a contingent-free-dependent system. In the aggregate of cases, the financial interest is very large. The statutory fees fund laboratory positions, equipment, professional development, and more. Arguably, the statutory, contingent-fee dependent system encourages both personal and institutional bias in scientific work much of the value of which even the state recognizes depends on the lack of influence on the scientist. Apparently, too, such a system is unnecessary, the state not disputing the existence of acceptable alternatives. Furthermore, that the parties do not cite and the Court does not find any precedent for giving forensic scientists and laboratories a statutory financial interest in DUI convictions suggests that other states, who, presumably, share this state’s legitimate goal of discouraging DUI in part by making offenders responsible for laboratory costs, do not regard such an interest as fair. - 15 - Despite the magnitude of the aggregate financial interest, however, the Court concludes that it does not necessitate the exclusion of the results of breath or blood tests. Presumably, it is impossible to calibrate breath-test machines to overstate any positive result. Thus, no financial interest on the calibrator’s part can affect the results of breath tests. As for blood tests, presumably, despite the evidence of acknowledged and unacknowledged errors in blood tests, it is impossible to calibrate blood-test machines to overstate any positive result. The sole acknowledged error in the record was a transposition error; perhaps the unacknowledged errors in the record lie within the margin of error. Presumably, too, despite the statement in the reports in the record that “[t]he above represents the interpretations and opinions of the analyst[,”] blood tests are subject to minimal, if any, interpretation or opinion. Although deliberate falsifications attributable to financial interest remain a possibility, presumably, what protects defendants from accidental transposition errors also protects them from deliberate falsifications: the availability of independent analysis of blood, at state expense in appropriate cases, and the availability of underlying “technical notes and data” that, according to a statement in the reports in the record, the laboratory maintains in its case records. Thus, the financial interest in obtaining DUI convictions is offset by financial and other interests in continuing to have employment and avoiding criminal liability, making the possibility of a deliberate falsification attributable to financial interest remote without necessarily changing defendants’ calculations regarding the advisability of independent analysis. Denial of Application for Interlocutory Appeal. Following entry of the December 11, 2014 order, Franklin and the other defendants filed a consolidated motion for an interlocutory appeal, which the trial court granted. Thereafter, this court denied the defendants’ application for an interlocutory appeal, and the Tennessee Supreme Court denied the defendants’ application to appeal from this court’s order of denial. The State also filed a motion for an interlocutory appeal regarding the trial court’s decision to grant a jury instruction regarding the $250 BADT fee, but this motion was denied by the trial court on the grounds that the motion was untimely, that another hearing on the State’s motion would subject the defendants to additional and unnecessary burden and expense, and that the State could file an extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. Following the denial of the interlocutory appeal, the trial judge assigned to Franklin’s case recused himself from the case, and the case was reassigned to another Hamilton County Criminal Court judge. - 16 - Trial. The evidence at Franklin’s trial substantially conformed to the evidence presented that the suppression hearing. During trial, TBI Special Agent Kelly Hopkins testified that she tested Franklin’s blood sample and determined that it had a BAC of 0.12%. She noted that Franklin declined to request an independent test of his sample. Agent Hopkins explained that defendants convicted of DUI were assessed a $250 fee that helped defray the costs of testing blood samples. She said that she did not personally benefit from this $250 fee, that the money from this fee went into the TBI general fund, and that she was a salaried employee who did not receive more or less money based on the results of the tests she performed. However, Agent Hopkins acknowledged that she had not read the statute creating this $250 fee and did not know how the money from this $250 fee was used because information about these fees was not shared with TBI employees. Agent Hopkins said she had tested “thousands” of blood samples and had testified on behalf of both the prosecution and the defense. She added that her employment with the TBI would be terminated if she falsified any test result. Hopkins said the TBI’s crime labs in Memphis, Nashville, and Knoxville were accredited November 2014 by ASCLD Lab International and that prior to that date, the labs were ASCLD Lab Accredited. She said these different accreditations reflected different standards related to competency of testing and calibration for laboratories. Franklin also testified, asserting that he consumed three drinks over the entire night of June 15, 2012. Following the presentation of proof, the defense requested the following special instruction regarding the TBI’s conflict of interest regarding the $250 fee for blood or breath tests: I charge you that in considering the credibility of the Tennessee Bureau of Investigation (TBI) expert witness, Kelly Hopkins, you may consider whether her testimony was influenced in any manner by the fact that her employer (TBI) receives two hundred fifty to three hundred fifty dollars ($250.00-$350.00) for each Driving Under the Influence conviction under T.C.A. § 55-10-401 where she analyzes a sample of the defendant’s blood. After the trial court provided its own jury instruction on this issue, which follows, the defense objected to it because it failed to identify Agent Kelly Hopkins. The court overruled this objection and provided the following instruction on this issue to the jury at trial: Credibility of witnesses. It is your job to decide what the facts of this case are. You must decide which witnesses you believe and how - 17 - important you think their testimony is. You do not have to accept or reject everything a witness said. You are free to believe all, none, or part of any person’s testimony. In deciding which testimony you believe, you should rely on your own common sense and everyday experience. There is no fixed set of rules for judging whether you believe a witness, but it may help you to think about these questions. .... Nine, does the witness or the witness’s employer have a financial interest in the defendant’s conviction. State law provides that upon conviction for driving under the influence, a motorist who submitted to a blood alcohol test must pay, in addition to all other fines, fees, costs and punishments now prescribed by law, a fee of $250, which goes to the Tennessee Bureau of Investigation to fund forensic scientist positions, to employ[] forensic scientists to fill the positions, to purchase equipment and supplies, pay for education, training and scientific development of employees, or for any other purpose so as to allow the Bureau to operate in a more efficient and expeditious manner, and, to the extent that additional funds are available, employ[] personnel, purchase equipment and supplies, pay for the education, training and scientific development of employees, or any other purpose so as to allow the bureau to operate in a more eff[i]cient and expeditious manner. ANALYSIS I. Denial of Motion to Suppress. Franklin argues that the trial court erred in denying his motion to suppress on the ground that the checkpoint was unconstitutional. Specifically, he claims that the checkpoint violated the Fourth Amendment to the United States Constitution and article I, section 7 of the Tennessee Constitution because it failed to comply with the Order and because it violated the standards for checkpoints established in Tennessee case law. The State counters that the checkpoint constituted a reasonable seizure and that the trial court properly denied the motion to suppress. A trial court’s findings of fact in a suppression hearing will be upheld unless the evidence preponderates otherwise. State v. Odom, 28 S.W.2d 18, 23 (Tenn. 1996). The prevailing party 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.” Id. Moreover, “[q]uestions of - 18 - 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.” Id. Despite the deference given to trial court’s findings of fact, this court reviews the trial court’s application of the law to the facts de novo with no presumption of correctness. State v. Montgomery, 462 S.W.3d 482, 486 (Tenn. 2015) (citing State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001)). When evaluating the correctness of a trial court’s ruling on a motion to suppress, this court may consider not only the proof offered at the suppression hearing but also the evidence presented at trial. State v. Bishop, 431 S.W.3d 22, 34-35 (Tenn. 2014). Both the Fourth Amendment of the United States Constitution and article I, section 7 of the Tennessee Constitution protect against unreasonable searches and seizures. U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”); Tenn. Const. art. I, § 7 (“That the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures . . . .”). The Tennessee Supreme Court has concluded that article I, section 7 of the Tennessee Constitution is “identical in intent and purpose” with the Fourth Amendment. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001) (citing State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000); State v. Vineyard, 958 S.W.2d 730, 733 (Tenn. 1997)). The essence of this protection against unreasonable searches and seizures “is to ‘safeguard the privacy and security of individuals against arbitrary invasions of government officials.’” Downey, 945 S.W.2d at 106 (quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967)). Under the United States Constitution and the Tennessee Constitution, “‘a warrantless search or seizure is presumed unreasonable, and evidence discovered as a result thereof is subject to suppression unless the State demonstrates that the search or seizure was conducted pursuant to one of the narrowly defined exceptions to the warrant requirement.’” State v. Hayes, 188 S.W.3d 505, 511 (Tenn. 2006) (quoting State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997)). We recognize that the “the temporary detention of individuals during the stop of a vehicle by police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ which implicates the protection of both the state and federal constitutional provisions.” Vineyard, 958 S.W.2d at 734; see Yeargan, 958 S.W.2d at 631. While officers must generally possess probable cause or reasonable suspicion that unlawful conduct has occurred in order to stop a motorist, “[a] roadblock seizure . . . is a departure from these fundamental constitutional principles” because “[i]t permits officers to stop and question persons whose conduct is ordinary, innocent, and free from suspicion.” Downey, 945 S.W.2d at 104. Consequently, when determining the reasonableness of a - 19 - seizure at a checkpoint, “we must balance the public interest served by the seizure with the severity of the interference with individual liberty.” Id. In Downey, the Tennessee Supreme Court held that a sobriety checkpoint that is “established and operated in accordance with predetermined guidelines and supervisory authority that minimize the risk of arbitrary intrusions on individuals and limit the discretion of law enforcement officers at the scene is valid under the Tennessee Constitution.” Id. at 112. The court adopted a three-part balancing test, which specified that the reasonableness of a sobriety checkpoint depends on the balancing of “‘(1) the gravity of the public concerns served by the seizure, (2) the degree to which the seizure advances the public interest, and (3) the severity of the interference with individual liberty.’” Id. at 107, 110 (quoting Michigan v. Sitz, 496 U.S. 444, 457 (1979)). The State has the burden of establishing the reasonableness of a checkpoint. Hicks, 55 S.W.3d at 535; Varner, 160 S.W.3d at 540. The Downey court held that such seizures are constitutionally permissible so long as “an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field, and the seizure is carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” Downey, 945 S.W.2d at 110. A. Gravity of Public Concerns Served by Checkpoint. While Franklin concedes that this first factor can be generally satisfied in the case of sobriety checkpoints, he claims that the State’s interest in detecting and deterring drunk drivers had diminished for this particular checkpoint site. Cf. State v. Kenneth B. Nevels, No. M2007-00902-CCA-R3-CD, 2008 WL 4071877, at *4-5 (Tenn. Crim. App. Sept. ^[3], 2008) (recognizing the defendant’s argument that the State had to show that intoxicated drivers remained a problem of “grave public interest” in the county where the checkpoint took place but concluding that the defendant failed to present any evidence that the State’s compelling interest in detecting and deterring drunk drivers had diminished or that the county at issue was immune to the problem of intoxicated drivers). Franklin asserts that the “lack of statistical support” showing that a checkpoint at this location would address problems regarding drunk driving prevents the State from establishing that intoxicated drivers remained a problem of grave public interest in this area. Referencing the Order, Section III, which requires that a site location for the checkpoint be chosen “based on historical statistical evidence and the knowledge of alcohol related to other types of crashes where impairment was indicated as a contributing factor,” Franklin contends that if a checkpoint is to address the public’s concern, then the statistical evidence must show a history of drunk driving in the area. He notes that in this case, the statistical evidence of crashes in the area of the checkpoint showed that there had been zero fatal accidents related to alcohol from 2003 to 2012 and only four alcohol-related accidents resulting in injuries during that same time frame. - 20 - Franklin also notes Lieutenant Phillips’ testimony that the site for the checkpoint was chosen because crashes had occurred on a parallel highway and not Cherokee Boulevard itself. For these reasons, Franklin contends that the statistical evidence for this checkpoint and law enforcement’s concern about the safety on a parallel highway do not support a finding that this checkpoint served the State’s compelling interest in detecting and deterring impaired drivers. In response to these arguments, the State insists that individuals who drink and drive constitute a grave public concern and that this concern was served by the checkpoint in this case. Citing Downey, 945 S.W.2d at 110, it reiterates that the State has a compelling interest in decreasing drunk driving and that checkpoints are an effective tool for detecting impaired drivers. Moreover, as to Franklin’s assertion that the statistical evidences does not support Cherokee Boulevard as an acceptable checkpoint site, the State contends that Franklin has failed to provide any authority supporting his claim and that nothing in the Order requires the THP to only consider crashes involving death or injury in determining the site for a checkpoint. We note that the first Downey factor is satisfied when the State asserts that it has a “compelling interest in detecting and deterring motorists who drive while under the influence of alcohol.” Id. at 110. The Downey court specifically recognized that “more deaths and injuries have resulted from such motor vehicle accidents on our nation’s highways than from all the wars this country has fought.” Id. (citing Sitz, 496 U.S. at 456 (Blackmun, J., concurring)). At the suppression hearing, the State generally argued that it had a compelling interest in “detecting and deterring DUI drivers.” However, given the State’s concession at that hearing that no advance public notice of the checkpoint in this case was given, any attempt by the State to rely on the deterrence of impaired drivers as a justification for the checkpoint is substantially diminished. Because the record in this case shows that the State had a compelling interest in detecting impaired drivers, we conclude that this first Downey factor has been established, and we will consider Franklin’s arguments regarding the absence of statistical evidence of drunk driving at the checkpoint site under the second Downey factor, which considers the degree to which this particular checkpoint advanced the public interest. B. The Degree to Which the Checkpoint Advanced the Public Interest. Franklin also argues that the checkpoint failed to advance the public interest because (1) there was no advance publicity of the checkpoint and (2) the checkpoint was terminated for lack of manpower after a single DUI arrest. He claims that because law enforcement obtained only one DUI arrest after stopping 285 cars over the course of the one-hour checkpoint, the State’s interest in reducing impaired driving was not advanced. The State - 21 - counters that the checkpoint advanced the public’s interest in deterring and detecting impaired drivers. We note that the second Downey factor, the degree to which the checkpoint advanced the public interest, may be established “when one can fairly say that roadblocks contribute in a meaningful way to achieving the sufficiently compelling state interest [established under the first Downey prong].” Hicks, 55 S.W.3d at 531. In other words, the State must demonstrate “some meaningful link between its establishment [of the roadblock] and the achievement of its compelling interest.” Id. at 532. However, the State is not required to show that the checkpoint was the most effective means of achieving its stated goal. Id. at 531. First, Franklin contends that that the checkpoint in this case failed to advance the public interest given that there was no advance publicity of it. While the State acknowledges that no advance notice was given of the checkpoint, it asserts that the lack of advance publicity does not invalidate the checkpoint. Franklin references Section III(D) of the Order, which provides the notification requirements for checkpoints: D. Notification to the Public: 1. The District Attorney of the area in which the sobriety checkpoint is to be conducted should be notified by the District Captain or a designated representative. ^[2]. All local law enforcement agencies within the jurisdiction where the checkpoint is to be held should be notified, and their participation in all activities will be accepted and welcomed. ^[3]. The District Captain, or designated representative, shall prepare a press release for distribution to the local media in the area of the checkpoint, advising that the Tennessee Highway Patrol will be conducting sobriety checkpoints. In urban areas, it may not be possible to notify each news media because of the large number involved. In these cases, the District Captain or designated representative may contact the Public Information Officer (PIO) who is permitted to make checkpoint notifications to media contacts throughout the state. - 22 - a. This notification will include the date and county the checkpoint will be held. The notification will also identify the general location the checkpoint will be conducted. b. This notification will be given no later than two (2) weeks prior to the date the checkpoint is to be held. c. An example of a press release is attached with this Order. d. After media notification has been made, it is the responsibility of the site supervisor to verify that each checkpoint has been publicized prior to beginning checkpoint activity. (1) Checkpoints shall not be conducted unless they have been publicized. Franklin argues that Section III(D) of the Order was violated because the record clearly shows that there was no advance publicity of the checkpoint. Specifically, he cites to Section III(D)(3)(d)(1), which states, “Checkpoints shall not be conducted unless they have been publicized.” He also mentions Section III(D)(3)(d), which provides, “[I]t is the responsibility of the site supervisor to verify that each checkpoint has been publicized prior to beginning checkpoint activity.” Franklin also contends that Section III(D)(1) and (2) were violated because the District Attorney and all local law enforcement were never given advance notice of the checkpoint. Although the record shows that the Red Bank Police Department participated in this checkpoint, Franklin contends that the order’s requirement that “all local law enforcement agencies within the jurisdiction” be notified of the checkpoint necessarily included the Chattanooga Police Department and the Hamilton County Sheriff’s Office, who were never notified of this checkpoint. At the suppression hearing, THP Captain McGill testified that although the normal procedure was for a media release to be completed, there was no media release done in this case. In addition, THP Lieutenant Phillips testified that although the box on the Activity Report had been checked indicating that the media had been notified, no media notification of the checkpoint had been given. THP Sergeant Matthews, the site supervisor for the checkpoint, admitted that he checked the box regarding the media release on the Activity Report because he assumed that those officers higher in command had notified the media. Following this testimony, the State stipulated that “a media release was not done for this checkpoint.” Later in the hearing, the defense admitted a letter from THP Sergeant James Van Dyke, stating that he had searched the records for a media notification for the relevant checkpoint and because had been unable - 23 - to such a notification, his “only conclusion [was] that the required media notification of this sobriety checkpoint was not accomplished.” We agree with Franklin that the language in Section III(D) of the Order requires media notification, and we conclude that neither Captain McGill, Sergeant Matthews, nor any other individual had the discretion to disregard this requirement. Franklin also argues that in addition to the specific notice requirements in the Order, several Tennessee cases have emphasized the importance of advance publicity on the basis that advance notice of an impending checkpoint can deter drunk driving. See Downey, 945 S.W.2d at 111 (“We believe advance publicity furthers the deterrence rationale for use of a sobriety roadblock . . . . It is the publicity about roadblocks [that] is the chief means of deterring driving while intoxicated.”); Hicks, 55 S.W.3d at 532, 534 (concluding that advance publicity may be essential if the State relies on deterrence as a rationale to support the checkpoint and that advance publicity provides citizens with “the important choice of not exposing themselves to state intrusion without prior suspicion of wrongdoing” and allows citizens to “‘anticipate and understand the circumstances’ of the stop” (citation omitted)). While acknowledging that the number of DUI arrests does not necessarily indicate the success of a checkpoint because publicity can deter individuals from impaired driving, Franklin argues that the lack of advance publicity of the checkpoint resulted in zero individuals being deterred from drinking and driving on the night in question, which means that the State cannot rely on DUI deterrence when determining whether the checkpoint advanced the public interest. Second, Franklin argues that the checkpoint failed to advance the public interest because it was terminated after only one DUI arrest. He references the Activity Report, which shows that there was only one misdemeanor arrest for DUI, which was Franklin’s arrest, and only one felony arrest. In addition, Franklin argues that Sergeant Matthews’ testimony, that he terminated the checkpoint because Trooper Collins and Trooper Swafford had left the scene and because he did not want to keep the Red Bank police officers from their priority calls, undermines the State’s claim that the checkpoint advanced the public interest of detecting drunk drivers. He claims that one DUI arrest after stopping 285 cars did not effectively curb impaired driving. As to this claim, the State, citing the unpublished case of Elliott Aloyo, 2010 WL 596435, at *4, argues that the number of arrests is not determinative of whether a checkpoint advances the public interest. In Elliott Aloyo, this court held that the relevant question is not whether the checkpoint was the most effective way of achieving the State’s goal but whether “‘one can fairly say [the roadblock] contributes in a meaningful way to achieving the sufficiently compelling state interest.’” Id. (quoting Hayes, 188 S.W.3d at 515). The court also recognized that checkpoints were effective tools for stopping impaired drivers. Id. Based on Elliott Aloyo, the State asserts that the - 24 - checkpoint in this case, which took place on Cherokee Boulevard near Highway 27 where several DUI incidents had occurred, prevented accidents and, consequently, advanced the public interest in reducing drunk driving. Lastly, we consider Franklin’s argument from the previous section, that the statistical evidence for this checkpoint and law enforcement’s concern regarding the safety on a parallel highway do not support a finding that this checkpoint served the State’s compelling interest in reducing drunk driving. While the State acknowledges that the statistical information showed no fatal alcohol-related crashes and only four alcohol- related crashes with injuries, it asserts that Franklin has cited no authority to support his claim that the THP can only consider crashes involving death or injury and that the Order does not contain such a requirement. The State also asserts that the checkpoint, which was chosen from the THP’s pre-approved list, was set up on Cherokee Boulevard to prevent impaired drivers from accessing Highway 27 and causing accidents. We agree with both of these arguments. The record shows that the State generally argued that it had a compelling interest in both “detecting and deterring DUI drivers.” We agree with Franklin that the legitimacy of the State’s deterrence argument is greatly diminished because the public was never given notice of the impending checkpoint. Removing deterrence as a rationale severely undercuts the State’s claim that the searches and seizures at this checkpoint were justified. See Hicks, 55 S.W.3d at 531-32 (“[S]o long as the State chooses to rely on deterrence as a rationale supporting any roadblock, we reiterate that advance publicity of the roadblock may be essential, and in those cases where this factor is absent, the State’s ability to rely upon deterrence to justify the stops is correspondingly diminished.”). Therefore, proceeding on the basis that the State’s only interest served by the checkpoint was to detect impaired drivers, we must next consider whether the method employed by the State advanced this more limited interest. In considering this issue, we note that the checkpoint resulted in a single arrest for DUI. We also recognize that because of the excessive traffic from the Riverbend Festival, the checkpoint had to be terminated early because officers were waving large numbers of cars through the checkpoint without stopping them. Despite this evidence, we recognize that some minimal proof was presented that suggested that the time and location of the sobriety checkpoint was chosen because of its effectiveness in detecting impaired drivers who had attended the Riverbend Festival. The proof also established that four alcohol-related accidents resulting in injuries had occurred at this location during the period from 2003 to 2012 and that the site for this checkpoint was chosen because crashes had occurred on a parallel highway. Consequently, the site for this checkpoint, which was located on one of the major thoroughfares for traffic exiting the Riverbend Festival, logically relates to the State’s interest in detecting impaired drivers. Therefore, we conclude that the sobriety - 25 - checkpoint in this case contributed in a meaningful way to achieving the State’s interest in detecting impaired drivers in that area on June 15, 2012. C. Severity of the Checkpoint’s Interference with an Individual’s Liberty or Privacy. As for this third Downey factor, Franklin contends that the checkpoint severely interfered with his privacy and liberty because the officers strayed too far from the guidelines of the Order and exercised too much discretion in the operation of the checkpoint. He reiterates that there was no advanced publicity of the checkpoint, in contravention of the Order. He also claims that law enforcement exercised too much discretion in failing to place adequate signs warning drivers of the checkpoint, in preventing motorists from avoiding the checkpoint, in determining which cars to stop, in failing to record a discussion between troopers immediately after Franklin’s field sobriety tests, and in deciding when to terminate the checkpoint. In response, the State argues that the lack of advance notice of the checkpoint did not invalidate it and that the checkpoint did not interfere with Franklin’s liberty or privacy interests because the officers’ discretion at the scene was sufficiently limited. We conclude that the lack of advance notice, the officers’ exercise of substantial discretion at the scene, and the substantial deviations from the Order severely interfered with Franklin’s privacy and liberty. In considering this third Downey factor, this court must determine whether the checkpoint was “‘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 533 (quoting Downey, 945 S.W.2d at 104); see 5 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 10.8(d) (5th ed. 2017) (“[A] police procedure is less threatening to Fourth Amendment values when the discretionary authority of the police (and thus the risk of arbitrary action) is kept at an absolute minimum.”). We recognize that “the most important attribute of a reasonable roadblock is the presence of genuine limitations upon the discretion of officers in the field.” Hicks, 55 S.W.3d at 533. Factors to be considered when determining whether the officers’ discretion on the scene was properly limited are the following: “(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.” Id. The absence of either of these factors will result in the invalidation of the roadblock. Id. In all roadblock cases, the State must establish 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.” Id. “[A]ctive and careful supervision is critical to the constitutional reasonableness of any roadblock[.]” Id. at 536. In addition, “[t]he central concern with - 26 - suspicionless seizures . . . is not how an officer exercises his or her discretion in the field, but whether he or she exercises an inordinate amount of it” and “[a]ny deviation - from established guidelines indicates that an on-site officer’s discretion is not properly limited.” Varner, 160 S.W.3d at 547. There are three steps when evaluating the third Downey factor: First, the court must decide whether the initial decision to conduct a roadblock was made by an authority superior to the officers in the field. Second, the court must decide whether the officers conducting the roadblock decided for themselves what procedures to use, or if they adhered to neutral standards previously fixed by an administrative decision or regulation. These two steps can be outcome-determinative in that the failure to abide by Downey and its progeny with respect to either necessarily terminates our inquiry and invalidates the stop. But if the roadblock at issue survives the first two steps, the court then examines the execution of the roadblock to determine if it has the other characteristics of a constitutionally permissible roadblock. However, unlike in the first two steps, the presence or absence of a particular characteristic is not necessarily outcome-determinative. Elliott Aloyo, 2010 WL 596435, at *6. 1. Decision to Establish the Checkpoint. This first step is satisfied because the decision to set up the checkpoint was not made by the officers who worked at the checkpoint. Here, the request for the checkpoint and the site for the checkpoint were chosen in advance by THP Captain McGill and Lieutenant Phillips, neither of whom were present during the operation of the checkpoint. Because the decision to establish the checkpoint, as well as its time and location, was not made by an officer who executed the checkpoint, we conclude that the first step, as outlined in Elliott Aloyo, is established. ^[2]. Discretion Given to the Officers On the Scene. For the second step, we must consider whether the officers on the scene decided for themselves the procedures to be used in operating this checkpoint. Our review of the video recording of the checkpoint shows that officers were not stopping all cars in both directions, even though they were instructed to do so by site supervisor Sergeant Matthews in accordance with the Request/Authorization form. While the officers appeared to be stopping all south-bound traffic, officers checking the north-bound traffic were, at times, stopping every other car or every third car and were intermittently waving all cars through before eventually returning to momentarily stop cars at random intervals. See Downey, 945 S.W.2d at 111 (“[T]he question of which vehicles to stop at the roadblock should not be left to the - 27 - unfettered discretion of police officers at the scene, but instead should be in accordance with objective standards prefixed by administrative decision.” (internal quotation marks and citation omitted)). Although the State claims that officers, in accordance with the Order, failed to stop every car only when traffic at the checkpoint became congested, the video recording of the checkpoint simply does not support this claim. Instead, this video recording shows that officers checking traffic in the north-bound lane were utilizing their discretion to intermittently stop every other car, to stop every third car, and to wave large numbers of cars through without regard to the actual traffic congestion on the road. The video recording of the checkpoint also shows that it was being operated for purposes other than a sobriety checkpoint. At the suppression hearing, Sergeant Matthews testified that he instructed all officers during the pre-checkpoint briefing to momentarily stop every vehicle and that if they did not observe any signs of impairment or another violation, to allow the vehicle to pass through the checkpoint. However, the video recording of the checkpoint shows that most, if not all officers, were checking for expired tags during these momentary stops of motorists. Because checking for expired tags is entirely unrelated to the State’s asserted interest in detecting impaired drivers, we conclude that the officers at this checkpoint were “pursuing investigatory agendas that were wholly distinct and apart from the State’s claimed interest.” Hicks, 55 S.W.3d at 537. Moreover, the fact that illegitimate objectives were being pursued during the checkpoint is a “reflection of the overall failure by law enforcement officers to establish this roadblock in a manner consistent with administrative and supervisory oversight.” Downey, 945 S.W.2d at 111. We reiterate that “[w]hen police officers are permitted, either through administrative design or supervisory neglect, to actively engage in suspicionless investigation of criminal activity wholly unrelated to the purposes of the checkpoint, the constitutional protections afforded by [a]rticle I, section 7 are rendered utterly without effect or meaning.” Hicks, 55 S.W.3d at 538. Finally, the appellate record shows that Sergeant Matthews failed to properly supervise the conduct of the officers at the checkpoint. The record shows that Sergeant Matthews had absolutely no interaction with Franklin prior to his arrest. At the suppression hearing, Sergeant Matthews was unable to recall his exact location at the time Franklin came through the checkpoint, although he stated that he was “probably in the road.” The video recording of Franklin’s field sobriety tests and arrest show that Trooper Collins and Trooper Swafford were the only officers who interacted with Franklin. Trooper Collins and Trooper Swafford, a trainee, utilized their own discretion in conducting field sobriety tests and in determining whether to arrest Franklin. All of - 28 - these issues weigh against the reasonableness of this checkpoint and lead us to conclude that the second step in Elliott Aloyo has not been established.^[1] 3. Characteristics of the Checkpoint. Although we have already held that the second step was not established, which automatically results in the invalidation of the checkpoint, we will nevertheless consider the third step in Elliott Aloyo, whether this checkpoint had the characteristics of a constitutionally permissible roadblock, in order to conclusively determine the validity of the checkpoint in this case. The Tennessee Supreme Court identified several factors that minimized the risk of arbitrary intrusions on liberty and privacy and supported a finding that a checkpoint is constitutionally permissible, including: (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). While each of these four factors weighs heavily in determining the overall reasonableness of a checkpoint, the absence of any one of these factors does not necessarily invalidate a checkpoint. Id.