State v. Verkerk
| Citation | 747 S.E.2d 658 |
| Decision Date | 03 September 2013 |
| Docket Number | No. COA12–1579.,COA12–1579. |
| Parties | STATE of North Carolina v. Dorothy Hoogland VERKERK. |
| Court | Court of Appeal of North Carolina (US) |
OPINION TEXT STARTS HERE
Appeal by defendant from judgment entered 7 September 2012 by Judge A. Robinson Hassell in Orange County Superior Court. Heard in the Court of Appeals 22 May 2013.
Attorney General Roy Cooper, by Assistant Attorney General Lauren D. Tally, for the State.
Law Office of Matthew Charles Suczynski, PLLC, Chapel Hill, by Matthew C. Suczynski and Michael R. Paduchowski, for Defendant-appellant.
Defendant Dorothy Hoogland Verkerk appeals from a judgment sentencing her to a term of 24 months imprisonment and suspending that sentence for a period of 18 months on the condition that she serve an active term of 30 days imprisonment, be on supervised probation for a period of 18 months, comply with the usual terms and conditions of probation, pay a $1,000.00 fine and the costs, perform 72 hours of community service, and not drive until properly licensed to do so based upon her conviction for driving while impaired. On appeal, Defendant argues that Judge Elaine Bushfan erred by denying her motion to suppress evidence that she contends was obtained as the result of an unconstitutional vehicle stop performed by Lieutenant Gordon Shatley of the Chapel Hill Fire Department. After careful consideration of Defendant's challenges to the trial court's judgment in light of the record and the applicable law, we conclude that Defendant's conviction must be vacated and that this case must be remanded to the Orange County Superior Court for the entry of a new order containing findings of fact and conclusions of law that adequately address the issues raised by Defendant's suppression motion.
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 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.
On 27 May 2011, a citation charging Defendant with driving while impaired and driving while license revoked was issued. On 10 January 2012, Judge Lunsford Long found Defendant guilty of driving while impaired and entered a judgment imposing a Level I punishment. On 19 January 2012, Defendant noted an appeal to the Orange County Superior Court for a trial de novo.
On 23 July 2012, Defendant filed a motion seeking to have any evidence obtained as a result of the stopping of her vehicle suppressed. A hearing on Defendant's suppression motion was held before Judge Bushfan on 2 August 2012. 1 On 23 August 2012, Judge Bushfan entered an order denying Defendant's suppression motion on the grounds that (1) the stopping of Defendant's Mercedes did not constitute a seizure for Fourth Amendment purposes; (2) in the alternative, if the stopping of Defendant's vehicle constituted a seizure, it represented a lawful detention by a private citizen as authorized by N.C. Gen.Stat. § 15A–404(b); and (3) in the alternative, if the stop of Defendant's car constituted a seizure that was not authorized by N.C. Gen.Stat. § 15A–404, the seizure in question was neither a violation of Defendant's constitutional rights nor the result of a substantial violation of any provision of Chapter 15A of the North Carolina General Statutes.
On 7 September 2012, Defendant entered a negotiated plea of guilty to driving while impaired and stipulated that she was subject to Level I punishment on the understanding that the State would voluntarily dismiss the driving while license revoked charge and that sentencing would be in the discretion of the court. In the transcript of plea which embodied her plea agreement, Defendant specifically reserved the right to seek appellate review of the denial of her suppression motion.After accepting Defendant's plea, the trial court entered a judgment sentencing Defendant to a term of 24 months imprisonment and suspending that sentence for a term of 18 months on the condition that Defendant serve an active term of 30 days imprisonment, be subject to supervised probation for a period of 18 months, pay a $1,000.00 fine and the costs, comply with the usual terms and conditions of probation, perform 72 hours of community service, and not drive until properly licensed to do so. Defendant noted an appeal to this Court from the trial court's judgment.
“The standard of review in evaluating the denial of a motion to suppress is whether competent evidence supports the trial court's findings of fact and whether the findings of fact support the conclusions of law.” State v. Biber, 365 N.C. 162, 167–68, 712 S.E.2d 874, 878 (2011) (citing State v. Brooks, 337 N.C. 132, 140–41, 446 S.E.2d 579, 585 (1994)). “When findings of fact are not challenged on appeal, ‘such findings are presumed to be supported by competent evidence and are...
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