Did firefighter have the right to stop a suspected drunk driver?
Did a fireman in a Chapel Hill fire truck have the right to pull over a woman he thought might be drunk?
That's the question the N.C. Court of Appeals had to answer in the case of Dorothy H. Verkerk, who was charged with driving while impaired in May 2011.
Three members of the court who considered the question couldn't agree and issued two opinions about the matter Tuesday morning.
The case involved Dorothy H. Verkerk, a former member of the Chapel Hill Town Council and an art professor at UNC, who was pulled over by a Chapel Hill fire engine and later pleaded guilty to driving while impaired.
Verkerk entered into a plea agreement last September in which she pleaded guilty to driving while impaired and was placed on supervised probation for 18 months, ordered to pay a $1,000 fine and perform 72 hours of community service.
Although she pleaded guilty, she reserved her right to appeal a decision by Judge Elaine Bushfan, who previously denied her motion to suppress evidence based on the theory that the fire engine stop was unconstitutional.
The incident began about 10:30 p.m. when Lt. Gordon Shatley of the Chapel Hill Fire Department was commanding a fire engine that had been sent on a fire call. On the way, he noticed a Mercedes sticking out into an intersection with its lights off. When the dispatcher told him the fire truck wasn't needed at the fire call, the fire truck headed back to its station and he saw the same Mercedes driving slowly and weaving on Fordham Boulevard.
Shatley called police communications several times to report that he thought he was following an impaired driver and where he was. As the fire engine followed the Mercedes onto Raleigh Road, he saw it nearly collide with a bus.
After seeing the Mercedes continue to weave, he ordered the fire truck's driver to activate its red lights. The Mercedes pulled over to the right and hit the curb, and the fire engine stopped behind it.
Shatley then asked Verkerk if she would mind calling someone to pick her up and asked if one of his men could park her car for her. She said OK, but then she drove off.
Chapel Hill police officers arrived, and they stopped her car on another street and charged her with driving while impaired. She registered a .23 blood alcohol level.
Verkerk was driving on a limited license because she had been charged with driving while impaired four months earlier.
During a motion to suppress, Bushfan ruled that stopping Verkerk did not constitute a seizure for Fourth Amendment purposes, and if it was a seizure, it was a lawful detention by a private citizen and did not violate Verkerk's constitutional rights or violate North Carolina law.
The Court of Appeals, however, ruled that the stop was a seizure.
It also found that Bushfan did not go through the proper procedure in making her ruling. One of the questions that Bushfan had to answer in making her ruling was whether Shatley was acting as a private citizen or an agent of the state, but Bushfan never explicitly determined his status or made findings to conduct the required analysis, according to the Court of Appeals ruling written by Judge Sam Ervin IV.
She also did not make findings to determine whether Shatley stopped the Mercedes for law enforcement reasons or because he wanted to protect Verkerk and the public.
The Court of Appeals ruled that the case should be sent back for Bushfan to make additional findings.
If she finds Shatley was acting as a private citizen, then she should deny Verkerk's motion to suppress and reinstate her judgment.
However, if she determines that Shatley was acting as a government agent when he stopped the Mercedes, she should then address whether the stop violated Verkerk's constitutional rights, the opinion stated.
Court of Appeals Judges Sam Ervin, who wrote the ruling, and Donna Stroud agreed on the issues, but Court of Appeals Judge Robert C. Hunter disagreed on parts of it.
Hunter wrote in a dissenting opinion that he believed Shatley was not acting as a private person when he stopped the Mercedes.
"He seized defendant while acting in his official capacity as a fireman, a state actor, and did so without lawful authority in violation of the defendants rights ... ," Hunter wrote.
State law allows firemen to do limited law enforcement duties such as directing traffic at a fire, but they are not considered law enforcement or traffic control officers, Hunter wrote.
"Under our current statutes, Lieutenant Shatley had no lawful authority or training to stop defendant," Hunter wrote. "Because Lieutenant Shatley used the appearance of the state's police powers to effectuate a traffic stop, I conclude that he was a state actor acting outside of his lawful authority to seize defendant."