The North Carolina Supreme Court recently penned an opinion regarding the legal basis for “stopping” a vehicle suspected of impaired driving. It is an interesting opinion more for the legal issue(s) not addressed, than those cited as a basis for reversing the case. . .which had previously been held in favor of the accused. The case is formally entitled North Carolina vs. Dorothy Hoogland Verkerk or State v. Verkerk
The Factual Background – Reasonable Suspicion Factors to Consider
The facts of the case, or what attorneys refer to as the “factual basis,” are quite interesting. Ms. Verkerk was allegedly operating a motor vehicle in Chapel Hill, North Carolina. Local Fire Department staff, while traveling behind Ms. Verkerk in a fire engine, noticed what appeared to be erratic and potentially dangerous driving.
Indeed, Fire Department Lieutenant Gordon Shatley, whom was in command of Fire Engine 32 of the Chapel Hill Fire Department, became concerned after Ms. Verkerk’s vehicle drifted “between lanes and then nearly strike a bus.”
Thereafter Lt. Shatley directed Engine 32 activate its emergency equipment. Apparently there had been some communication with law enforcement, yet police were not available to immediately respond to the area, which was on US 15-501 South in Chapel Hill.
The purpose of activating the Fire Department emergency equipment was, “. . .[H]e did so to keep other motorists from passing both vehicles.” That is an important consideration, in that “emergency equipment” for Law Enforcement and the Fire Department can have separate functions. Although both may serve the purpose of providing a warning to other motorists of dangers in the area, Law Enforcement blue lights also carry a substantial amount of additional power and authority.
Ms. Verkerk’s vehicle went into the left lane and then swerved to the right, striking the curb to such extent and with sufficient force that sparks shot upward. Lt. Shatley made contact with Ms. Verkerk and after speaking with her for some ten minutes, some agreement was made to park the vehicle in a nearby parking lot. Mr. Verkerk decided later to drive the vehicle again, which was reported to law enforcement. Based upon the assertions made by Fire Department staff, law enforcement eventually located and executed a stop on the vehicle.
Reasonable Suspicion & Probable Cause
The Supreme Court specifically set forth the legal issues involved, noting allegations of two “stops” to wit:
NON-Law Enforcement - Engine 32 Fire Department
Law Enforcement
At first glance the legal issue might appear to be the purpose of Engine 32 turning on the flashing lights: Was it to warn others and/or use the Fire Truck as a buffer zone, in that vehicles are supposed to pull over when those lights are flashing and certainly are not allowed to pass the fire truck? Or, was the Fire Engine trying to “pull over” the suspect vehicle?
The Supreme Court closed that door pretty quickly writing, “The motion focused on whether a firefighter possessed legal authority to stop her car, not on the actions taken by or the evidence presented by the police officers who later stopped her again and charged her. Because she has never challenged the actions of the arresting officers, defendant has presented no legal basis for suppressing the evidence supporting her conviction.”
“Reasonable suspicion [is] the necessary standard for stops based on traffic violations.” State v. Styles, 362 N.C. 412 (2008). A traffic stop is permitted if the officer has a “reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 675, 145 L. Ed. 2d 570, 576 (2000).
Under the law, Traffic Stops are deemed “seizures.” Probable Cause is not necessarily required, yet may be an additional (and in fact more legally firm) basis for the encounter with law enforcement. For example, when a police officer personally observes a violation of the law, s/he would not be “suspicious” that criminal activity is afoot. They KNOW the law has been broken. That observation, in simple terms, would appropriately be deemed Probable Cause and a legally sufficient basis to stop.
Reasonable Suspicion, on the other hand, does not require someone actually breaking the law. Police, based on the totality of facts and circumstances, may be “reasonably suspicious” a law is being, or about to be, broken. The suspicion cannot be based upon mere speculation or a “hunch.” At the same time, police need not wait until the law is formally broken to activate emergency equipment and investigate further. While the Court in Styles relegates the basis of Traffic Stops to Reasonable Suspicion, it makes sense for the purpose of this submission to distinguish the difference(s) between the two in technical, legal terms of art. In fact, one might reasonably deduce that Probable Cause is actually the LOWER of the two standards.
For example, whereas Reasonable Suspicion requires an analysis by the Finder of Law (the Judge) of reasonableness and judicial review of the stated “suspicions” that did not technically result in an abridgment of the law, Probable Cause cuts to the chase. If an officer observes a known violation of the law, they need not be suspicious (but may be) of anything else. That’s all that is required to perform a legal seizure. Evidence thereafter obtained would be properly admitted into evidence.
Tips
Discerning the legal basis for the opinion in State v. Verkerk requires a little reading between the lines. It appears the legal challenge by the Defense focused on the activation of emergency equipment by NON-Law Enforcement personnel. That would actually be an interesting legal issue to review; unfortunately, the Supreme Court side-stepped the fact pattern for the time being, as technically it became legally irrelevant. One would be remiss in failing to acknowledge the importance of the stated Factual Basis, specifically as it pertains to driving itself in the case-at-hand, to that point.
One would be hard-pressed to deny the alleged driving per se would amount to Reasonable Suspicion to stop by a police officer. As stated previously, if Law Enforcement followed the vehicle and the readily observed violations of the law, Probable Cause would have existed. While a police officer may have also developed Reasonable Suspicion of Impaired Driving based upon the totality of the circumstances, legal analysis of that issue would be unnecessary. Again, if someone breaks the law in the presence of the officer, they need not be “suspicious” of anything. They can stop and thereby seize the offender.
Now the more interesting legal issue, and frankly what is key here, is whether Engine 32 was acting as a “State Agent” for law enforcement. The Court focused on information provided by Engine 32 to police and the reasonableness of the officer(s) in relying on the same.
In effect, Engine 32 was a “tipster” of sorts. Tips generally disfavored in that there is an “. . .[I]herent unreliability of anonymous tips standing on their own.” State v. Johnson, 204 N.C. App. 259 (2010). There are exceptions, important exceptions, to such disfavor.
Reasonable Suspicion may develop if the tip itself contains strong indicators of reliability, such as very detailed information, or (2) the police are able to corroborate the tip in a meaningful way, or (3) the circumstances behind the tip are reliable and withstand scrutiny. State v. Peele, 96 N.C. App. 668 (2009).
Fire Truck Lieutenants likely enjoy stellar credibility in the Courts, especially when transmitting incredibly specific, real-time, detailed factual information, while on-duty, in a fire engine, following a potentially hazardous motorist. A defense based upon challenging the reliability of that “tip” would not enjoy very long consideration.
Therein Lies The Rub
” ‘Devoutly to be wish’d. To die, to sleep; To sleep: perchance to dream: ay, there’s the rub: For in that sleep of death what dreams may come, When we have shuffled off this mortal coil, Must give us pause: there’s the respect That makes calamity of so long life;’
To Be Reasonable Suspicion, or Not To Be. That is the question. The interesting legal issue involves a slightly different fact pattern or perhaps patterns, where Fire Department personnel attempt a Gomer-esque “citizens arrest” (people always forget Gomer was the one whom declared an arrest on Deputy Barney Fife) of a motorist. Joking aside, it is a complicated legal issue in that Fire Personnel are more than ordinary citizens, especially when effectuating their legal duties.
For example, what if the driving had been relatively good, but the Lieutenant stopped a vehicle, observed red, glassy eyes, slurred speech and unsteadiness on feet? Could the evidence obtained after the stop, namely the appearance of impairment, be used by Law Enforcement to formulate reasonable suspicion? The answer is, a “definite maybe.” Again, the reliability of the proponent of information would be considered; yet, that is only true if such person gathered that evidence legally after a lawful stop.
The factual basis has been and will always remain the key. Courts review issues of Reasonable Suspicion and Probable Cause to Stop a Vehicle in North Carolina in the “totality of the circumstances.” In the case at hand, the legal analysis from the Defense appears to have focused on the authority of the Fire Engine staff. The Supreme Court of North Carolina drew attention to the actions of Law Enforcement, based on the information provided to them by said Fire Engine staff. . .which it found to be reasonable. The key consideration was the driving, not the information obtained pertaining to impairment. The driving, in and of itself, couple with the character of person sharing the information, amounted to sufficient Reasonable Suspicion to Stop.
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