There is an interesting case out of North Carolina where Dorothy Hoogland Verkerk, a professor at the University of North Carolina, has objected to her arrest for drunken driving on rather novel grounds: she was pulled over by a fire truck. In May 2011, Fire Lt. Gordon Shatley spotted Verkerk driving in an unsafe manner and pulled her over. She was found to be intoxicated but Verkerk insisted that the stop was illegal because fire fighters are not empowered with such authority.
The Chapel Hill Fire Department officer suspected that Verkerk was drunk on his way to a fire report. Here is how the court laid out the facts in State v. Verkerk, 2013 N.C. App. LEXIS 931 :
At around 10:30 p.m. on 27 May 2011, Lieutenant Shatley was dispatched to 1512 East Franklin Street in Chapel Hill in response to a fire alarm. At the time that Lieutenant Shatley’s fire engine stopped at the intersection of Estes Drive and Fordham Boulevard, he noticed a light-colored Mercedes approaching the intersection on his left. Although there was a “pouring downpour,” the headlights on the Mercedes were not on. Instead, the Mercedes was illuminated solely by an interior dome light and auxiliary front lights. A window in the Mercedes was partially down despite the rain, and the vehicle was stopped partway into the intersection, “further out into the road than you would normally stop at a stoplight.”
After the traffic light turned green, Lieutenant Shatley’s fire engine continued on its way to the location associated with the fire alarm. Upon arriving at the location to which he had been dispatched, Lieutenant Shatley learned that another fire engine had already responded to the call and that he could return to the fire station. As he drove back towards the fire station along Fordham Boulevard, Lieutenant Shatley saw the same Mercedes ahead of him. An amber light, which appeared to be either a turn signal or a hazard light, on the vehicle was flashing. Although the Mercedes did not appear to be moving at the time that he first saw it, Lieutenant Shatley observed as the fire engine drew closer that was it proceeding at approximately 30 m.p.h., some fifteen miles per hour below the posted speed limit of 45 m.p.h. In addition, the Mercedes repeatedly weaved over the center line before moving to the far right fog line. After making these observations, Lieutenant Shatley radioed police communications, reported that he was following a possibly impaired driver, and provided his location and a description of the vehicle in question.
After the Mercedes exited onto Raleigh Road, which was the same direction that the fire engine needed to go in order to return to the station, Lieutenant Shatley followed it. As it entered the ramp leading to Raleigh Road, the Mercedes drove out of its lane and onto an area marked “not for traffic.” Upon entering Raleigh Road, the Mercedes got into the center lane; however, it continued to weave in and out of its lane of travel. As Lieutenant Shatley followed the Mercedes, he observed that, upon approaching an intersection simultaneously with a passing bus, the Mercedes drifted into the bus’ lane of travel and came within three feet of hitting it. At an intersection, Lieutenant Shatley made another call to report the location of a possibly impaired driver.
As the Mercedes continued to weave in and out of its lane of travel and other vehicles were passing both the fire truck and the Mercedes, Lieutenant Shatley instructed the fire truck’s driver to activate the vehicle’s red lights. Lieutenant Shatley did not order that this action be taken in order to effectuate a “traffic stop;” instead, Lieutenant Shatley acted in this manner in the hope that other cars would stop passing them. Lieutenant Shatley testified that, if the car had not stopped, he intended to continue following it and providing police communications with additional updates concerning the vehicle’s location.
At the time that Lieutenant Shatley activated the fire engine’s red lights and tapped the siren twice, the Mercedes drifted to the right in an abrupt manner and hit the gutter curbing with sufficient force that sparks resulted from the contact that the rim of the Mercedes made with the curbing before coming to a stop. Once the fire truck had stopped behind the Mercedes, Lieutenant Shatley called police communications to report the vehicle’s location and then spoke with Defendant, who was driving the Mercedes. Lieutenant Shatley did not ask Defendant if she had been drinking or request that she perform field sobriety tests. However, when Defendant asked why he had stopped her, Lieutenant Shatley explained that he was “concerned because of her driving” and “just wanted to make sure she was okay.”
After speaking with Defendant for a few minutes without hearing anything from the Chapel Hill Police Department, Lieutenant Shatley, who had intended [*6] to ask one of the assistant firefighters to park Defendant’s car, inquired of Defendant as to whether she would be willing to park her car and have someone pick her up. Although Defendant agreed to this request, she then “drove off” while Lieutenant Shatley “just stood there” and watched as she turned onto Environ Way, a side street to the right of Raleigh Road.
Shortly after Defendant drove off, officers of the Chapel Hill Police Department arrived on the scene. Lieutenant Shatley reported the observations that he had made about Defendant’s driving and pointed out her vehicle to investigating officers. Upon receiving the information which Lieutenant Shatley provided, officers of the Chapel Hill Police Department pursued Defendant and stopped her vehicle. In the meantime, Lieutenant Shatley left the scene and returned to the fire station. To the best of Lieutenant Shatley’s recollection, about “ten minutes maybe” had elapsed between the time he activated his red lights and the time at which officers of the Chapel Hill Police Department arrived.
Verkerk insisted that the stop violated her fourth amendment rights as an unlawful search or seizure. The question turned on whether Shatley was making a citizen arrest or using his governmental position in stopping Verkerk. The appellate court sent the case back down to determine the answer to that question. In a prior case, State v. Lavergne, 991 So. 2d 86 (La. App. 2008), cert. denied, 1 So. 3d 494 (La. 2009), a fire fighter stop was treated as the action of a citizen and not a government agent. I tend to agree with the dissenting judge, Hunter, in the opinion, when he concluded that this was clearly not a citizen arrest. Here the officer used his lights and siren to stop Verkerk. This was a show of official authority and most citizens would consider themselves compelled to stop. He noted:
Although the majority remands the case for the trial court to make additional findings as to whether Lieutenant Shatley was a state actor when he seized defendant, I conclude the trial court’s findings establish that he was a state actor and that he violated defendant’s right to be free from unlawful seizure under our state constitution. The trial court found that Lieutenant Shatley stopped defendant with the use of Fire Engine 32, of which he was in command and which was returning to the fire station after being dispatched to the scene of a possible fire. After notifying “emergency communications” that defendant may be an impaired driver, Lieutenant Shatley “ordered” the driver of the fire engine to activate its red lights, sirens, and horn to cause defendant to stop her vehicle. Once stopped, Lieutenant Shatley did not [*56] pass defendant, but parked Engine 32 behind defendant’s vehicle. Lieutenant Shatley exited the fire truck and approached defendant wearing his firefighter’s uniform. The fire engine’s emergency lights continued to flash as defendant asked Lieutenant Shatley why he had stopped her, and he spoke to defendant for at least ten minutes. Chapel Hill police officers arrived on the scene shortly thereafter.
Treating such stops as citizen arrests would create yet another exception to our constitutional criminal protections and allow for a wide array of actions to be taken outside of the limitations of the fourth amendment.
Professor Verderk specializes on Medieval studies and is an Associate Professor and Assistant Department Chair and Director of Graduate Studies in Art History at North Carolina.