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.
Those comments above that state a traffic stop is not a seizure are wrong:
(NORTH CAROLINA COURT OF APPEALS, STATE v. VERKERK, NO. COA12-1579, page 10, PDF). The majority opinion states that the stop by the firefighter was a seizure.
The issue remaining is whether or not he was an agent of the government at the time.
If he was an agent of the government, then the defendant wins, if he was a private citizen for 4th amendment search or seizure purposes, then the conviction stands.
Since he is a firefighter who has responsibility for public safety and any illness manifesting itself in an obvious manner, he had a duty to stop and render aid or to stop and find out the reason for the obvious impairment. At no time did he act as a police officer. He did act as a public officer to find out what the problem was with the person who was obviously ill or impaired. Had she only been seriously ill, his stopping her would not have even been contested. He also did not detain her, which would be the subject of a lawsuit if she had gone on and killed or injured another. To take the position that the firefighter is not allowed to stop her, is to set-up a damn if you do, and damned if you don’t legal precedent.
It was not an arrest by the fireman, or a seizure, or a search, and the cops can probably get a conviction on what the cops saw and heard from her when they pulled her over. If she has an objection to the testimony of the fireman for what he observed, what is the form of the objection?
Since she was not “breaching the peace” by alleged erratic driving, the firefighter could not, as a citizen, detain her.
The question, then, is whether or not he could legally detain her in his official capacity as a firefighter.
I read the news article link at the top of this blog thread:
http://www.heraldsun.com/news/x1576247907/Did-firefighter-have-the-right-to-stop-a-suspected-drunk-driver
I find that, as I was born, I had neither the lawful authority nor the training to be born; thereupon, I find my birth as an autistic person to have been neither lawful nor the activity of a person properly trained to be born.
I find my birth to have been in violation of the law. I find my life to have always been in violation of the law.
I suppose, if I were actually a legal person (a non-biologically-alive corporation), then, and only then, would my biological existence not violate the law; doing so simply because I would have no biological existence.
I find that I have no lawful authority to take another breath, neither have I any training for the taking of another breath; hence, for my lifelong violation of the law, I expect to receive the death penalty at such time as my body is no longer able to violate the law by taking one more breath.
Not bad for an engineer.
Do we not all have a social duty to attempt to stop individuals that are causing an eminent danger? Perhaps the ability to make a Citizen’s arrest is more important them many conclude. Perhaps the problem of increased Police brutality which is even much more severe than is being reported, could be rectified by such actions by Citizens. Our Police State is surely becoming more arrogant and brutal as more and more abrogations of the Constitution are authorized and protected. It’s appears she is guilty. The question is will she be let off on a technicality to protect the larger issue of what I think is the legality of Citizen’s arrest.
The citizen’s arrest side of the coin is governed by this statute:
(North Carolina General Statutes § 15A-404 Detention of offenders by private persons, 1973, c. 1286, s. 1.). The only exception is (b)(2) – a breach of the peace.
Driving erratically is not generally considered breach of the peace in the common law, and the term is not defined in the statute.
She knew he was not a police officer. I a fire engine had its lights and siren on I would pull to the side of the road for it to pass, as required to do. If the fireman stopped behind me and walked over to my car I know he is not a policeman. Unless I was drunk or otherwise incapacitated there would be no confusion but that this was not a policeman and he did not have the authority to “arrest” me which he apparently did not do.
The law seems to rest a lot on the splitting of hairs and it looks to this nonlawyer that this is a very, very thin hair.
Surely in this case the court cannot convict, the fire engine should have carried on passed her. By virtue of the fire engine stopping and Lieutenant Shatley getting out and talking to the driver he acknowledges that she stopped because of his actions even if this was unintentional.
The fire service cannot be put in the situation of acting as the police service. If this case finds they were right to stop their vehicle and talk to the driver then fire services all over could be open to being sued for not doing this in future. Also abuse, it’s bad enough with police abuse without having fire service abuse too.
Also there is no evidence she was intoxicated other than his observations.
That said drunk drivers should be banned from driving unless they’re attractive young females in which case a slap on the wrists should suffice. ;D < note smiley face!!
There are several people who take Ms. Verkerk’s drunkenness as justification for stopping her.
That drunkenness is not the issue.
Ms. Verkerk was stopped by an “authority figure” – we are required by law to pull over and stop when an emergency vehicle is behind us and uses its lights/siren.
However, Ms. Verkerk should have known her rights and left the scene as soon as Lt. Shatley started questioning her.
This reinforces the old adage – “Never talk to a cop” (or a wannabe cop).
Steve, The fact is that the Lt had a DUTY to stop her. He observed an impaired driver and there are lots of other conditions that can cause such driving, like medication problems, heart attack, stroke, diabetes, etc… He did not attempt to detain her once he found that she was drunk, nor did he conduct a sobriety test. THAT would be acting as a police officer and exceeding his duty. Had he not done that, and if she were having a heart attack, he would have been sued for not checking on her condition.
This is akin to his driving by a burning house which fire has not been reported. Nobody in their right mind would say that he and his unit should continue on until it is reported. He has a DUTY to stop and report and fight the fire. Now he also has a duty to make sure that no people or pets are in that burning house. He enters that house, finds a person on the floor unconscious, and at the same time sees a pile of drugs. He takes the victim out and calls the police about the drugs. He treats the victim until the cops arrive, and they arrest the person. Can that case be thrown out on constitutional grounds since he did not have a search warrant nor is he a trained an authorized police officer? The cops of course, enter and find the drugs, can that evidence be thrown out too. Will the firefighter be barred from testifying in court as to what he saw? I most certainly hope not.
Dan, you are correct. I did read a bit fast. I was speed reading trying to get out the door and to the office. I’ll try to slow down next time. 😉
I so don’t think this is a citizens arrest…. The best they have her for is public intoxication….,careless or reckless driving…. This is too far of a stretch….you start allowing firemen to arrest, stop or detain…. In which they are not trained…usually…. You open the door to abuses….l
Once again, I have to agree with OS and all who disagree with the dissenting judge. She did not have to stop, nor was she compelled to do so by the Lt. If the truck had forced her over, and kept her there or prevented her from leaving as she did later, THEN the judge may have had a case. So even with a finding that he was acting in his capacity as a state figure, the Lt did nothing beyond his legal authority.
It also raises the probability that had the Lt done nothing other than reporting the condition, had she had an accident, the Lt and the fire dept. would be held responsible for not acting to stop her. They would also be held to be at fault if they did not follow her, since they would be found to be negligent in putting distance between the site of a very likely accident and themselves.
In short, common sense should prevail instead of hair splitting. If the judge finds in favor of the defendant, the legislature needs to fix that problem by granting the firefighters that power of arrest.
“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.”
The issue is whether the stop was by the government or by a citizen.
So is the subsequent activity fruit of the poison tree?
” The firefighter detained her until police arrived to make the arrest.”
Don’t read too fast. She was not detained. She drove off. The arrest happened elsewhere.
” 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. ”
I don’t agree with this. Everyone knows the difference between a fire engine and a police car. As far as I know, the emergency lights are different colors in all jurisdictions.
The stopping by the fire engine seems to me to be an irrelevance. The arrest and everything else was done by the police, separately.
Though I find impaired driving reprehensible, government employees who are not law enforcement officers cannot use the trappings of their employment to act as if they are police. The use of lights and siren to get someone to pull over should be reserved for law enforcement officers with reasonable cause.
To call that an arrest is a real stretch. The firefighter detained her until police arrived to make the arrest. In some jurisdictions, firefighters and EMT’s have arrest authority. That is little different than a security guard, who may detain a suspect until police arrive. There is a reason my daughter carries handcuffs on her belt.
Drunks are capable of fantastic feats of denial rather than admit they have a problem. It sounds as if this woman needs help. If I were her department head or in human resources, she would be in my office for a long talk, and probably suspended with pay, pending a fitness for returning to work evaluation. I do those kinds of evaluations myself, and have one on my desk at the moment I have to finish this afternoon for the head of risk assessment at a government office.
Too bad a court can’t allow this conviction to stand and then say “No more of this in the future. She was drunk, she should pay, and her good deed of challenging this will be paid forward.”
Too bad Gomer Pyle wasn’t there to make a “Citizen’s arrest, citizen’s arrest.”
He didn’t search or seize the vehicle. It stopped of its own accord.He did not chase it down when the defendant left. When the defendant was actually arrested, it was by a police officer, not a fireman. I have no sympathy for the driver and don’t think a SAFETY OFFICER should be questioned for doing what was obviously in the interests of protecting the driver and those around her. It wasn’t punitive, it wasn’t an arrest.
His job is to protect the community and if he watched all that and just let her go and then was called back to repair some tragedy that the driver had caused-you know who would be blamed? The safety officers who observed obviously impaired driving and did nothing to stop it! How sick are we all of hearing about the guy who won’t do certain obvious things because “it’s not my job” or “union rules prohibit it”. It infuriates us all! He did the right thing and she should not be rewarded for her actions AT ALL.
My thanks to the firefighter who went above and beyond to do his job well.