Citizen’s Arrest!

You don’t have to attend basic law enforcement training to identify a potential impaired driver.  Plenty of folks without police training could roll off a list of tell-tale signs, including excessive weaving, driving without headlights, and driving with the windows down in cold weather, particular when those signs are observed in the evening hours in the vicinity of a place serving alcohol.  Because impaired driving poses such a danger to the public, a person who suspects that a driver is impaired might reasonably deem the situation an emergency.  The most obvious course of action is to call 911.  But what if the person also is driving a vehicle equipped with some sort of warning light or siren?  Like a firefighting vehicle. Or a security vehicle.  May the concerned citizen stop the vehicle and detain the person until law enforcement officers arrive?

The answer is unclear. A private person may stop and detain another person when the private person has probable cause to believe that the other person has committed in his presence ­­a (1) felony, (2) a breach of the peace, (3) a crime involving physical injury to another person, or (4) a crime involving theft or destruction of property. G.S. 15A-404(b). The detention must be in a reasonable manner considering the offense involved and the circumstances of the detention. G.S. 15A-404(c).

A breach of the peace is the only category potentially applicable to a misdemeanor DWI that doesn’t involve injury to another or to property.  The court of appeals in Parker v. Hyatt, 196 N.C. App. 489 (2009), concluded that a North Carolina Wildlife Resources Commission Officer was authorized to stop a vehicle on suspicion that the driver was impaired and to conduct field sobriety tests because such officers were permitted to arrest for a crime that “‘constituted a threat to public peace and order which would tend to subvert the authority of the State if ignored.’” Id. at 496-97 (quoting G.S. 113-136(d)).  The similarity between this language and “breach of the peace,” might, at first glance, be construed as indicating the court’s inclination to categorize impaired driving as a breach of the peace. Further inspection of the statute relied upon by the Parker court, however, calls any such conclusion into doubt. Among the offenses for which officers of the Wildlife Resources Commission may arrest is “breach of the peace,” along with felonies, assaults and “other offenses evincing a flouting of their authority as enforcement officers.” G.S. 113-136(d).  In concluding that the officer was acting within his statutory authority, the Parker court skipped over the breach of the peace category, relying instead on the aforementioned provision about crimes that constitute a threat to public peace.

Author’s note:  A private person’s authority to detain another for a breach of the peace is discussed in further detail in Robert L. Farb, Arrest Search and Investigation in North Carolina 24 (4th ed. 2011) (characterizing a breach of the peace as an offense that disturbs public order and tends to incite others to break the peace and citing State v. Mobley, 240 N.C. 476 (1954) and State v. Tripp, 9 N.C. App. 518 (1970)). 

It happens. Whether authorized or not, impaired drivers are occasionally stopped by people other than trained law enforcement officers.

State v. Weaver. The court of appeals recently considered such a circumstance in State v. Weaver, ___ N.C. App. ___, 752 S.E.2d 240 (2013).  In that case, the defendant was stopped by a security guard for a town home community who thought the defendant was speeding.  The security guard approached the defendant’s car and identified himself as “‘Office Hunter from Metro Public Safety.’” The guard smelled alcohol on the defendant and noticed that the defendant’s eyes were bloodshot.  The guard asked the defendant whether he had been drinking and the defendant said that he had.  The guard asked the defendant to get out of the car and to sit on the sidewalk.  He called dispatch and asked the city police to send out an officer for a “‘possible DUI.’” The defendant, who subsequently was charged with DWI by a UNC-W Wilmington police officer moved to suppress the evidence gathered as a result of the stop.  The trial court granted the motion, but the court of appeals reversed, holding that the security guard was not a state actor and thus that the Fourth Amendment did not apply.

State v. Verkerk. The court confronted a more unusual fact pattern in State v. Verkerk, ___ N.C. App. ___ , 747 S.E.2d 658, 669 (2013).  In that case, a firefighter with the Chapel Hill Fire Department saw a car being driven in heavy rain, with its window down, and without its headlights illuminated.  The vehicle was travelling about 15 miles per hour below the speed limit, and repeatedly crossed the center line.  The firefighter radioed police communication and stated that he was following a possibly impaired driver.  Before the police arrived, the car drifted in front of a bus, nearly colliding with it.  The firefighter called dispatch again. As the car continued to weave, the firefighter told the driver of the fire truck to turn on its red lights so that other cars would not drive past them and into the path of the erratically driven car.  The car pulled to the right, hit the curb, and came to a stop.  The firefighter called dispatch a third time, got out of his truck, and spoke to the driver.  The driver then drove away, but was stopped soon thereafter by a Chapel Hill police officer who charged her with driving while impaired. The defendant moved to suppress evidence arising from her stop. The trial court denied the motion on several grounds, determining that there was no Fourth Amendment seizure and that even if there was, the firefighter’s actions amounted to a lawful citizen’s arrest.

The court of appeals, over a dissent, reversed the trial court and remanded for additional findings regarding whether the firefighter was acting as a private citizen or a government agent. The appellate court further held that the trial court erred in determining that the firefighter’s actions were lawful under G.S. 15A–404(b), explaining that a citizen must have “probable cause” to detain another, and that “nothing in N.C. Gen. Stat § 15A–404 authorizes private citizens to conduct investigatory stops based on ‘reasonable articulable suspicion’ for the purpose of ascertaining whether a criminal offense has been committed.” ___ N.C. App. at ___; 747 S.E.2d at 671.  The appellate court opined that at the time the firefighter stopped the vehicle, he was conducting “at most” an investigative stop as he “did not know whether she was an impaired driver or whether her erratic driving stemmed from an entirely different cause, such as illness or mechanical difficulties.” Id. at ___; 747 S.E.2d at 671-72.

What’s the harm? The trial court in Weaver and the dissenting appellate judge in Verkerk articulated concerns about investigative stops carried out by persons without the appropriate law enforcement training.  The superior court in Weaver found that “private police outnumber public police forces,” that a substantial portion of the private policing industry is unregulated, and that “[f]ew statutes protect individuals from the potential social harms of the privatized police.” Weaver, ___ N.C. App. ___, 752 S.E.2d at 243. The trial court went on to conclude that the State was responsible for the security guard’s conduct in this instance as his conduct as a private security guard was highly regulated by the State (see G.S. 74C-3) and law enforcement relied upon such guards regularly to hand off cases. In his dissent in Verkerk, Judge Robert C. Hunter labeled the firefighter a state actor and opined that “[t]o permit state actors who do not have appropriate law enforcement authority, training, and experience to make traffic stops would potentially result in greater harm than not stopping someone who commits a motor vehicle violation,” because of the extent to which such actions would intrude upon individual liberty. Verkerk, ___ N.C. App. at ___, 747 S.E.2d at 676 (Hunter, Robert C., concurring in part and dissenting in part).

The outcomes in Parker, Weaver, and Verkerk amply articulate the counter-argument.  In each case, an impaired driver was detected and stopped from driving.

Share your view.  Is there a vast, untrained private police force exercising authority over citizens?  And, if so, is that a bad thing?