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.
Is this fireman a George Zimmerman wanna be…..
It doesn’t bother me that the fire fighter was able to identify an impaired driver and aid in their removal from the public roads. I find it strange that the firetruck was responding to a fire alarm and yet stopped for a red light and even waited for it to turn green before proceeding. No wonder they were beaten to the site by another unit.
hskiprob 1, September 13, 2013 at 4:10 pm
@Dredd – So …
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You will have to take all that up with the legislators and courts of North Carolina.
In so doing, your opinion will not matter as much as theirs.
I was simply quoting the authority in that state as applied to the case we are discussing today.
Agreed. I have sat and watched lawyers for a couple of decades now and fought a number of cases pro se and I’ve observed that you guys (attorneys and paralegals) have a very tough job in part because of having to fight in an arena where the foundation of law has been abrogated to such a degree that often no one knows if they are right or wrong because of both the many poor decisions but the inconsistencies in decisions. It appears to be causing attorneys to dislike the very profession they have chosen and makes it difficult many times to know which case is a good one or not to take. I think it is so bad that we must make a change. I’m sad to say that the Judiciary has in mine and many many others, become the “dredd”ed rubber stamp of the government.
hskiprob,
http://www.diffen.com/difference/Eminent_vs_Imminent
woops
hskiprob 1, September 13, 2013 at 2:48 pm
@Dredd – She was breaching the peace if she was creating an eminent danger and the proof is she was intoxicated.
…
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The appellate court held:
(State v Verkerk). The citizen’s arrest statute is irrelevant because the activity of the firefighter does not constitute an arrest, it was a seizure.
The issue on remand is whether or not the poisonous fruit doctrine will apply which will be determined by the firefighter’s status – government agent or private citizen.
Anyone who might rescue a comment?
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. – Jonathan Turley
“A wide array of actions”, indeed:
https://www.aclu.org/criminal-law-reform/aclu-challenges-excessive-and-unlawful-searches-police-etowah-county-alabama
Police Abuse of Power, Plain and Simple, in Etowah County, Alabama
by Brandon Buskey, ACLU Criminal Law Reform Project & Ezekiel Edwards, ACLU Criminal Law Reform Project
The Etowah County Sheriff’s Office has a Fourth Amendment problem.
https://www.aclu.org/blog/technology-and-liberty-criminal-law-reform-free-speech/police-abuse-power-plain-and-simple
About once a month, a marked sheriff’s car shows up, unannounced and after dark, outside a family’s home in Alabama. Uniformed officers walk to the family’s door, in plain sight of every neighbor. They knock and demand to be let in. If the family refuses, the police threaten them with arrest. Once inside, the officers search the family’s home – all without ever obtaining a warrant.
These unannounced intrusions are an ongoing, regular practice of the Etowah County Sheriff’s Office. That practice is the basis for a lawsuit filed today by the ACLU, the ACLU of Alabama, and the law firm Jaffe & Drennan challenging these random and suspicionless searches as unconstitutional – and unfounded – harassment.
Why would law enforcement officers harass this family? When one member of the family was a child, he was found guilty of committing a sexual offense (an appeals court suggested the charges were bogus and that the child’s lawyer was ineffective, but that’s another story). Now, he must register with the state. Since his release, he has fulfilled every requirement under Alabama’s Sex Offender Registration and Community Notification Act (RCNA). This includes registering in person at the Sheriff’s office four times a year, which he has done without fail, and which he must continue to do for the rest of his life.
The Department of Youth Services has found that this young man is at low risk of reoffending, and he has complied with every requirement placed upon him by the state, including court-mandated treatment. Yet, every month, the Sheriff’s department goes far beyond Alabama law – not to mention the Constitution – with their frequent, random intrusions into the plaintiffs’ home. Nothing in the RCNA or any other law gives the sheriff’s department license to invade this family’s home without a warrant, or to conduct these inspections without any reason to suspect that the plaintiffs have done something wrong. What’s more, Alabama state law protects the anonymity of anyone registered under the RCNA, and yet conspicuous law enforcement intrusions clearly draw unwanted attention to this family.
This is police abuse of power, plain and simple. And since the Sheriff’s Department has announced on its website a policy of “random, monthly” visits to the home and work of everyone registered under the RCNA, we fear this may be happening over and over again to families throughout the county.
The lawsuit we filed today seeks to stop the Sheriff’s Department from continuing its unconstitutional searches of the plaintiffs’ home and to end its broader policy of inspecting the homes of every registrant in the county without suspicion. It’s time to call off the witch hunt.
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Too many of these witch hunts. They need to be halted.
AY
WA prosecutes unlawful use of emergency lights in two ways. (it does not apply to vehicles designated as emergeency vehicles)
1) Just having the red / blue lights on a non-authorized emergency vehicle is a traffic infraction (like having defective tail lights)
2) Pulling someone over, such as the seemingly annual event where some police wannabe doof buys a retired police car and plays cop making traffic stops, is considered felony unlawful imprisonment. (common law)
But, strangely, the RCW allows for citizens to detain individuals under circumstances where an assault (and a few other issues) has happened for the police to arrive. So it would be surious as to if wannabe cop saw Joe Blow assault another person and then pulled him over with his Adam-12 police kit and detained him for police.
So in our example here it is not a violation of WA traffic law for a firefighter or police to use the lights in a non emergency situation, but it might be a violation of their department policy.
There are also cases where people other than police can have police power in WA; some are strange.
Firefighters are authorized here to make arrests for violations relating to arson and reckless burning. Shopkeepers and their employees or agents are allowed to arrest shoplifters. (in fact an appeals court here ruled a few years ago that assaulting the shopkeeper by the suspect was the same felony assault as assaulting a police officer) A judge may order a private person the authority to arrest another person if the judge sees a violation of a court order committed outside the court room and the strangest one of all: A person who is the supervisor of a cemetery may arrest a person who is interfering with a funeral, acting disorderly, or damaging property at the cemetery.
@Dredd – So a Police Officer can do an investigative stop but a Citizen must be absolutely sure if a person is creating an eminent danger before acting? So if I see a person driving recklessly I should do nothing because as we all know, it is impossible to know beforehand any potential evidence? ——- You stated “On the other hand, nothing in N.C. Gen. Stat § 15A-404 authorizes private citizens to conduct investigatory stops based on “reasonable articulable suspicion” for the purpose of ascertaining whether a criminal offense has been committed.” —- One cannot know if a person is intoxicated or having a heart attack so I do not know if State v. Benefiel is a good decision or a bad decision but these two cases appear to do a very good job at eliminating the validity of Citizens arrests. I can see where in a particular case this might be relevant but in Verkerk, it appeared obvious that something was wrong with her and that she was creating an imminent danger. If a person is creating an imminent danger, I must know in advance which criminal act they are breaking before trying to stop them. What if they are having a heart attack and I’m able to stop them before the harming someone? Because he didn’t know in advance for sure, a DUI should be potentially thrown out because he was in a fire truck and turned his lights on to get her to stop. Illogical and a bad decision in my opinion.
Too bad he wasn’t caused by her driving to drive right over her with the fire truck and given a true justice prevailing, Community Service Award……
That common sense is so twisted by Criminal Lawyers is atrocious!
@Dredd – She was breaching the peace if she was creating an eminent danger and the proof is she was intoxicated. That is what an eminent danger is. The questions are: is there two or more witnesses that saw her driving recklessly and was it sufficient to be deemed an eminent danger? Come on, driving excessively slow, swerving and almost causing an accident with a school bus, no exterior lights on and over stopping at the intersection and “found” to be intoxicating. It doesn’t matter if he was acting individually or in his capacity as a State authority and the fact that she “was” found intoxicated pretty much preempts the need for a second witness. She lost most of her rights once she became an aggressor whether it was malicious of not. We the People have the right to protect ourselves against eminent dangers. However, it’s obviously good to be right, if you make an attempt to stop someone who is creating an eminent danger.
Max-1,
According to the report this engine was not needed as another responded…. And they were on their way back to the station….
Max-1
1, September 13, 2013 at 2:22 pm
So all I need is some flashing lights and a siren and a cell phone that dials 9-1-1 and I too, can stop anyone I think is a drunk driver?
And before anyone accuses me of impersonating a police officer I’ll gladly correct them…
… I am impersonating a fireman neglecting his duty.
A Y, yes there is a difference. But “a non emergency reason”, by the firefighters description I think there was an emergency, just as I thought when I made the off-duty stop. A very fine legal line, gray area. Again, if the firefighter is telling the truth he still did the right thing, maybe saved somebody’s life. If she walks, she walks, maybe because he saved her life. I certainly didn’t make my off duty stop just to be a cop and see some old man loose his job and go to jail, it was concern for people’s safety. I realize that isn’t the point of the discussion here. Was what he did legal? Damned if I know.
You are right on man. It’s about justice or the lack there of. Without justice we have become a demoralized society near economic collapse. 1 out of 5 Americans now on food stamps? Really. What happens when the printing presses stop?
The Chapel Hill Fire Department officer suspected that Verkerk was drunk on his way to a fire report.
… So he stopped performing HIS citizens’ service, thus placing other citizens in potential risk, so that he can play good cop?
Well, if he’s not needed in HIS capacity, then…
So all I need is some flashing lights and a siren and a cell phone that dials 9-1-1 and I too, can stop anyone I think is a drunk driver?
Sg,
Distinction…. You were certified LEO…. You were off duty…. You effectuated a citizens arrest…. Here, fireman on duty, No LEO certification…. Activated lights in a non emergency reason…..for a reason he was not authorized to do…. Using official equipment….hmmmm…. Think there’s a difference?
Let me relate a similar incident. I was a New Mexico commissioned/certified law enforcement officer off duty and in a civilian vehicle when I saw a USDA Forest Service truck swerving into oncoming traffic (2 lane road). Vehicles were able to pull over far enough to avoid a collision mainly due to the vehicle’s slow speed. The driver appeared older and it was mid day, what was the problem? I always had a State Police radio with me, we lived in a remote mountainous area with few law enforcement officers and back up a long ways off at most times. I radioed the State Police dispatcher with the information and she dispatched the nearest on duty officer. The situation was obviously dangerous to both the driver and other traffic. I used blinking my headlights to get the driver to stop. Screw the legality, safety was my concern. I talked with the driver, frankly I was more worried he was sick at first, than believed he could be DUI. I asked no questions, except to assertain he was not ill, only requested he remain in the vehicle and turn the engine off. State Police arrived and arrested him for DUI. Was i wrong? Was it a Constitutional violation? I hope not (my instructors at the NM Law Enforcement Academy called me “Get an Attorney…..) but I don’t care if he walked on a technicality, he and somebody else would have died or been seriously injured if I had not done what I did. So yea, if the firefighter is telling the truth, he did the right thing, whether she walks or not.
Thanks Darren…. See, this is where wide, and varying experiences make this one of the best blog sites around…..
Question…. Is it unlawful in your state to use emergency lights when there is no emergency? I know a few jurisdictions have fired a few officers for doing this just to get through intersections…. Ie they were not responding to any direct call…..
I see two separate actions. One is an arrest for impaired driving. The arrest was by police officers who should have their own evidence for the arrest. She should do the best she can with this charge. The fire fighter’s role was to report her driving and location to the police.
The second was a brief detention by the fire fighter whose defense would be that he was trying to determine why she was driving so strangely for which there are many possible reasons. Although he was acting as a state agent with the use of the fire engine lights and her requirement to pull over, he didn’t prevent her from leaving.
She should be thankful that the firefighter was bold enough to check that she hadn’t had a stroke or some other medical condition that needed assistance.
My view is that the traffic stop was unlawful. It was instigated by government agents who lacked the authority to enforce the traffic laws of that state. The firefighters were government agents due to their official capacity and used government equipment to cause the driver to stop.
An interesting way that might have mitigated the legal issue (if this state allows it) Several states allow LEOs to assign authority to citizen to have arrest authority. It is commonly referred to Deputizing. If the fire fighters would have been in direct contact with a commissioned LE who ordered the traffic stop this would have been technically correct. I dont’ see this being the case here and doing so would have been hazardous by the police ordering someone with no training or equipment to deal with a possible violent or combative driver who could assault the person directed.
A purely private citizen driving their own car (and for some reason having blue/red emergency light available) cannot go around pulling people over and doing so could lead them to be arrested for unlawful imprisonment . But when government employees do this the fourth amendment applies and so do the rules of evidence.