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.
If you read Mr. Turley’s opinion, you will see that he says if this is allowed this will be another exception to our constitutional protections. That is what I was responding to. I also know that the title is misleading.
Reread the article and the linked reference. The dispute is whether or not the firefighter was acting as a private citizen or an agent of the state. If he was acting as a private citizen, his testimony can be used. If he was acting as a state agent, his testimony should not be used. The judge didn’t ask the right questions to make the determination.
It’s a fine point that should probably be resolved, but I don’t see that it makes a whole lot of difference to the outcome of the case. Her BAC should be sufficient to maintain the guilty verdict.
The subject of the thread is incorrect. The firefighter did not do the arrest.
First let me say, I am a firefighter and have been following this case and think she is guilty as hell and grasping at any straw to get out of this. Having said that let me state the case as I see it..She was observed driving erratically twice..the Fire Officer alerted the Police..it was only after nearly hitting a bus that the lights were turned on…She had no reason to believe this was a traffic stop of any kind..for all she knew they were getting a call and responding when the lights came on and she pulled over as anyone should..to me, this is splitting hairs..she should not be able to benefit from this technicality in the law..shes guilty and should pay the price..if she had driven off then killed someone, would we be having this discussion..NO!
Thank You Debra thats how i see it also.. especially in todays society where you can be arrested for seeing someone yell at or hit their child and not calling the cops… you can be arrested for witnessing a accident where you do not know either party but because you happened to be there and have information that the enforcement agencies have decided you have no choice but to give them..
and this man is going to pay for trying to make sure the lady was alright along with the rest of the community. and all because of her po lie trickers connections
FYI, Verkerk was a long time Chapel Hill city council member. I seem to remember that she recently tried to get appointed to that body again to fill a vacancy. She has lots of political connections in the area. And, while I am no lawyer, it seems to me that the firefighter was trying to protect the public from an impaired driver.
ok i have a couple of opinions regarding this article.
1. if she knew he was a firefighter and she didnt have to stop. then why did she? the article states she abruptly pulled over to the right!
2.he did not order her specifically to stop. over the horn. he put on his lights and siren. SHE CHOSE TO STOP and because of her stopping imo the firefighter could have gotten out just to make sure she was alright since she was driving erratically as many posters have stated. if he had not then she or her family would be suing saying he had a official duty to do it.
3.why did she lie to him and say she would be alright with parking her car and waiting for someone to come get her? and yet then pull off!!!
4. how many of you would be siding with the lady if her drunk driving had of injured a family member or a close friend?
5. 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.
6. 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.”
7. 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
can anyone please tell me where and when did the Lt Firefighter arrest her?
Darren, flying while intoxicated comes under 14 CFR §91.17 of the Federal Air Regulations. Local laws may be stiffer than Federal charges; Nevada is one such state which can bring more serious charges for FUI than the Feds. Pilots have been convicted on both misdemeanor and felony charges. It is far worse if the plane is a big one, like a cargo plane or airliner.
Chuck:
I could tell the issue was a sensitive one with the old aircraft just based on past post you made here 🙂
I read the reports, it was pretty easy to draw a conclusion there. I was surprised to see how brief those were. A DUI packet here was about 12 pages long and it typically took three or four typed pages of narrative for a run of the mill arrest.
I am curious, is it a felony on the federal level for piloting an aircraft while intoxicated? It is a gross misdemeanor here. In my view it should be a felony. I ran across a new law that came out last year that allows the ems to send a bill of up to $2,500 to a person convicted of DUI / Boating while intoxicated / piloting an aircraft while intoxicated to cover costs of the response.
Darren,
When you were here, it is a good thing the subject of selling the airplane did not come up. This is still very much of a sore spot with Li’l Bit, and she has a tendency to talk really loud and wag her finger when it comes up. I will probably never hear the last of it.
Darren,
That reminded me of the people who bought my plane. The guy I sold it to used to work for the FAA. His son and a friend decided to go shoot landings in the middle of the night. The story they told did not exactly make sense to me. At any rate, they took down through a stand of pine trees at the end of the runway. All the people in the plane, the two guys and a woman they had picked up were injured, but no fatalities. Strange, the test on the guy in the left seat was not tested for hours. The guy in the right front seat was the son of the man who bought it, and he was the one who grabbed the controls and caused it to crash. They never did a BAC on him. Curious y’think? Did I mention his old man was retired from the FAA?
Here is the Factual Report. Below that is the link to the Probable Cause Report. The Factual Report is always published before the Probable Cause, which is the final report of findings. Read it and draw your own conclusions.
http://dms.ntsb.gov/aviation/AccidentReports/lvshty45iu0odsryahqklei51/F09142013120000.pdf
http://dms.ntsb.gov/aviation/AccidentReports/y1puo245cxmjxofu4p41p1551/I09142013120000.pdf
AY
If I read it correctly it was 10 minutes between when the FD red lighted her and the time the PD later stopped her. I don’t know if she would have had time to make it home for a quickie then.
For the other readers here, BAC level drops about .015 per hour if the body has no new alcohol to process into the system (going down)
So what was the professors BAC at the time of the initial stop…. Could they have not gotten home and started drinking then….
Darren,
By the time the officer got to the place where the driver was found…. In my opinion is public intoxication,,,,, the defense could easily raise I didn’t drink until I was secure ….. Excellent points by the way….
I think the salient question the court remanded this case for was the fireman acting as not as a fireman but as a private citizen…. If so, there are other consequences that need to be considered…. And one is the removal of he firemn for acting outside the scope of duty, misuse of county equipment…. Etc….. I used to try about 15 to 20 cases a year….
Chuck:
The question is not whether or not it was prudent to get this impaired driver off the road, it is whether or not she can be convicted of a DUI based upon rules of evidence.
If a traffic stop is held to be unlawful, that is the officer lacked reasonable suspicion to stop or the stop was extra territorial, any evidence gathered after this is inadmissible. (Fruit of the poison tree). Since evidence of drunk driving is only sufficient upon contacting the driver and determining actual impairment, as opposed to simply driving over a center line, if the stop is unlawful it is nearly fatal to the DUI case.
There is one concept that you touched upon, it is one (perhaps labeled differently) Inevitable Discovery. That is that the police would have later pulled over the woman since they were directed to her location prior to the traffic stop. I think this is a possibility but it is a bit beyond my legal understanding of common law to render an opinion on this.
As for the medical angle to check on the woman based upon she possibly having a diabetic or other issue. That is legally tricky. If the woman was stopped for traffic and the fire fighter walked up to her and contacted her through a rolled down side window there is not a stop per se. But pulling her over can be considered a seizure by a government agent.
WA state law has a provision where a law enforcement officer can pull over a vehicle due to a hazardous condition either equipment or due to the driver being a hazard to safety. But, this only applies to LEOs by statute. It could be argued that an exigent circumstance was in play, which by common law would permit this for the fire fighters or anyone else. However, WA has case law against pre-text stops where if the fire fighters used the medical angle while at the same time were contacting police it would seem pre-textual in scope and the evidence would be suppressed.
Do I think the fire fighters were acting in bad faith? No, but it might at the very least be that they acted doing the right thing in arranging to have a drunk driver removed from the road, but a consequence of their actions could be that no conviction is possible.
Let’s look at this objectively. Lt. Shatley radioed the dispatcher twice giving them all the information. After he saw her almost hit a bus and driving dangerously, he then used equipment to get her to pull over. Concerned she might be medically impaired, he asked her if she was all right. She drove off and he returned to the fire station. Sometime after Lt. Shatley and professor Verkerk both left the scene, the police finally arrived and effected an arrest at a different location.
Frankly, I fail to see any relevance or connection between the fact he stopped her and talked to her briefly, and the traffic stop for DUI. He had already called the information in to dispatch, and was long gone before the police caught her. What connection is there between the fact he got her to stop briefly and the DUI arrest?
And BTW many, if not most, firefighters have had at least some EMT type training; enough to allow them to make a quick assessment of any obvious medical condition like a stroke or diabetic crisis. It sounds from the writeup that is what he did.
I agree with Ms. Crawford.
We have a “He said, Drunk said” situation. He claims he was flashing his lights for public safety to warn people about an erratic driver, and can plausibly be hitting his siren for the same reason, to make people pay attention. She pulled over. Again for public safety, he stopped behind her and talked to her, and suggested she park somewhere beside the middle of the street. The fireman did NOT arrest her, he got out and talked to her. Her drunken misinterpretation notwithstanding; she was able to drive away and that without penalty or sanction by the fireman or the court.
I think the court ruled wrong; she was ACTUALLY officially stopped and arrested by the police; not by the fireman. As far as I can tell he never told her she was under arrest or could not leave, he never restrained her or threatened her.
I had always heard that if you see a car driving in a way that makes you suspect DUI, or driving in a visibly unsafe manner to try and get the license number and call the police.
I do wonder why he didn’t just do that when he first noticed the Mercedes without the lights on. That was sufficient to make it a hazard.. Another firefighter was driving the firetruck so it should have been easy for him to do.
I think we should now debate the arbitrary intoxication level. lol. Apparently she didn’t challenge that. @randyjet …Interesting, because the fact that he used his fire truck to get her to stop only allowed him to find out if she was drunk. So he broke a rule. She can counter sue. A separate matter is if the evidence is even needed. He called it in. She should have challenged the second stop by the police as there was insufficient probable cause. The prosecution should than allow the actual stop to be thrown out. It just goes to show that when we over analize we defeat the pure essence of justice.
The only way she could challenge the second stop is if she suddenly sobered up in the few minutes between the first and second stop. I seriously doubt her driving improved within that time frame. So the only thing she could claim is that by stopping her, the Lt hindered her getaway from being arrested. I am sure that the cops had more than enough probable cause to stop her since she had already been reported by the Lt. If this is allowed to void her conviction, that means that NO cop can stop a driver if they have been reported. That is simply absurd as is this whole claim of unreasonable stop.
I wonder why the fireman stopping the woman is even relevant to the case. She drove OFF before the police arrived, and the Lt was long gone when the traffic stop was made. I could see how it would be germane if the cops showed up while the Lt had her stopped, but this is a real stretch. Maybe some of our legal folks could elucidate.
Are you saying …
hs,
Then you better get your wallet out cause the governments gonna be needing help…..
As far as this thread goes…. Are you implying that the fireman is raising revenues by stopping this person? Or ate you saying in general that this is how the states earn revenues….