Appeals court reverses Orange County DWI case

tgrubb@newsobserver.comSeptember 18, 2013 

— An appeals court ordered an Orange County judge last week to question again whether a firefighter legally stopped a driver in a 2011 DWI case.

The three-member N.C. Court of Appeals panel raised three questions:

• Did Chapel Hill Fire Department Lt. Gordon Shatley act as a private citizen or as a government officer when he stopped driver Dorothy H. Verkerk?

• If he acted as a government officer, did he have reasonable suspicion that Verkerk was committing a crime, as required by the Fourth Amendment?

• If the stop was unconstitutional, did that taint the police stop that followed and the evidence obtained in the case?

If a Superior Court judge denies Verkerk’s attempt to throw out the evidence against her a second time, the drunken-driving conviction and her sentence will be reinstated. If the judge allows her argument, Verkirk will get a new trial.

Orange County District Court Judge Lunsford Long convicted Verkerk, a Chapel Hill Town Council member from 2001-05, in January 2012 of driving while impaired and sentenced her to 24 months in jail. She appealed to Orange County Superior Court and asked Judge Elaine Bushfan to throw out the evidence because she claimed the traffic stop was unconstitutional.

Bushfan denied the motion, saying Shatley either did not seize Verkerk’s car by stopping her or, if he did, it was a “citizen’s arrest” allowed under state law. The stop did not violate Verkerk’s state or federal rights, Bushfan said. She suspended the sentence and ordered Verkerk to spend 30 days in jail, serve probation for 18 months, pay a $1,000 fine and court costs and perform 72 hours of community service. Verkerk’s driver’s license was revoked.

According to court documents, Shatley was responding to a fire around 10:30 p.m. May 27, 2011, when he saw a Mercedes stopped partly in the intersection at Estes Drive and Fordham Boulevard. The car’s headlights were off and a window was rolled down despite the pouring rain; the interior dome light and auxiliary lights were lit, documents state.

The truck continued to the fire but was no longer needed, and the firefighters returned to the station, coming up behind the Mercedes on Fordham Boulevard, documents state. Shatley said the car had a blinking signal or hazard light on and was weaving at 30 mph in the 45 mph zone, documents state. He called police to report a possible impaired driver.

The firetruck and Mercedes turned onto Raleigh Road, where Shatley said the driver kept swerving and nearly hit a passing bus, documents state. Shatley said he asked the firetruck’s driver to turn on the lights and the siren so other cars would stop passing.

According to court documents, “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.”

Shatley said he got out and talked with Verkerk, the driver, to make sure she was OK. He did not ask her if she had been drinking or perform field sobriety tests, but he did ask if she was would park her car and let someone pick her up, documents state. She agreed but then drove away, Shatley said.

Chapel Hill police arrived within 10 minutes, and Shatley told them what happened. Police later stopped Verkerk and charged her with driving while impaired and driving with a revoked license.

In its decision, the appeals court said the Fourth Amendment protection against illegal search and seizure did apply to the stop, and Shatley lacked the authority to make a citizen’s arrest, because he didn’t know if Verkerk had committed a crime.

However, Appeals Court Judge Robert C. Hunter split from his peers in stating definitively that Shatley was a government officer when he stopped Verkerk. Shatley was wearing his uniform and ordered the driver to activate the truck’s lights and siren, he wrote. Shatley also lacked the police training and legal authority to make an official traffic stop, Hunter wrote.

If Shatley had been a police officer, Verkerk’s actions would have warranted an investigation, he added.

Grubb: 919-932-8746

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