             IN THE SUPREME COURT OF NORTH CAROLINA

                                  No. 421A13

                             FILED 12 JUNE 2014

STATE OF NORTH CAROLINA

            v.
DOROTHY HOOGLAND VERKERK


      Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel

of the Court of Appeals, ___ N.C. App. ___, 747 S.E.2d 658 (2013), vacating a

judgment entered on 7 September 2012 by Judge A. Robinson Hassell in Superior

Court, Orange County, and remanding to the trial court for further proceedings. On

7 November 2013, the Supreme Court allowed the State’s petition for discretionary

review of additional issues. Heard in the Supreme Court on 18 March 2014.


      Roy Cooper, Attorney General, by Derrick C. Mertz and Lauren Tally
      Earnhardt, Assistant Attorneys General, for the State-appellant/appellee.

      Law Office of Matthew Charles Suczynski, PLLC, by Matthew C. Suczynski
      and Michael R. Paduchowski, for defendant-appellant/appellee.



      EDMUNDS, Justice.


      Defendant Dorothy Verkerk pleaded guilty to the offense of driving while

impaired, reserving her right to appeal the trial court’s denial of her motion to

suppress. 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
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                                  Opinion of the Court



challenged the actions of the arresting officers, defendant has presented no legal

basis for suppressing the evidence supporting her conviction.       Accordingly, we

reverse the holding of the Court of Appeals.

      At approximately 10:30 p.m. on 27 May 2011, Fire Engine 32 of the Chapel

Hill Fire Department was returning from a call.          Fire Department Lieutenant

Gordon Shatley, who was commanding the Engine, became concerned about the

erratic driving of a vehicle proceeding in the same direction on U.S. Highway 15-501

South in Chapel Hill.      Lt. Shatley relayed information about the vehicle’s

description, actions, and location to the Chapel Hill Police Department. The police

were unable to respond promptly, so Lt. Shatley followed the vehicle. When he

observed it continue to drift between lanes and then nearly strike a bus, he ordered

the driver of Engine 32 to activate its emergency lights and siren. He testified that

he did so to keep other motorists from passing both vehicles.

      The vehicle then moved into the left lane and sharply back into the far right

lane, where it came to an abrupt stop after hitting the curb with force sufficient to

send sparks shooting into the air. Engine 32 stopped behind it and Lt. Shatley

approached the vehicle to offer assistance to defendant driver. After Lt. Shatley

spoke with defendant for at least ten minutes and she appeared to agree that her

car could be parked for the evening at a nearby lot, she unexpectedly drove away

from the scene and turned onto Environ Way, where parking was available. At

approximately the same time, Chapel Hill police officers arrived and Lt. Shatley


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                                    Opinion of the Court



indicated where the vehicle had gone. The officers drove in that direction while Lt.

Shatley and Engine 32 returned to the fire station. Thereafter, Chapel Hill police

officers encountered1 defendant, investigated her condition, and cited her for driving

while impaired and driving while license revoked.

      Defendant was found guilty of driving while impaired in District Court,

Orange County on 10 January 2012. Defendant appealed to the superior court,

where she filed a motion to suppress in which she argued that firefighters do not

have legal authority to conduct traffic stops. Following a hearing on 2 August 2012,

the trial court filed a written order denying defendant’s motion. On 7 September

2012, defendant pleaded guilty to driving while impaired but reserved her right to

appeal the court’s denial of the suppression motion. The State dismissed the charge

of driving while license revoked.

      Defendant appealed the denial of her motion to suppress to the Court of

Appeals. On 3 September 2013, a divided court issued an opinion finding that Lt.

Shatley’s actions constituted a seizure for the purposes of the Fourth Amendment.

State v. Verkerk, ___ N.C. App. ___, ___, 747 S.E.2d 658, 663-64 (2013). The court

vacated the trial court’s order and remanded the matter for further proceedings. Id.

at ___, 747 S.E.2d at 673. The dissenting judge generally agreed with the majority


      1Although the record is ambiguous as to whether defendant’s vehicle was in motion
when the Chapel Hill Police reached her and the parties disagreed on that point at oral
argument, defendant has never argued that she was not “operating” her vehicle then. See
N.C.G.S. §§ 20-4.01(25), -138.1(a) (2013). For convenience, we will refer to defendant’s
encounters with Lt. Shatley and with the Chapel Hill police as “stops.”

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                                    Opinion of the Court



regarding the seizure, but argued that a remand was unnecessary because the

evidence was sufficient to hold that Lt. Shatley was a State actor and that he had

seized defendant without sufficient legal authority. Id. at ___, 747 S.E.2d. at 673-74

(Hunter, Robert C., J., concurring in part and dissenting in part).           Defendant

appeals as of right on the basis of the dissent. N.C.G.S. § 7A-30(2) (2013). We also

allowed the State’s Petition for Discretionary Review. Id. § 7A-31 (2013).

       Defendant’s motion filed with the trial court is titled “Motion To Suppress

Traffic Stop.” The motion does not cite a specific statute, but instead states that it

is filed

               pursuant to the Fourth Amendment to the Constitution of
               the United States as . . . applied to the states through the
               Fourteenth Amendment of the Constitution of the United
               States and pursuant to the parallel provisions of the
               Constitution of North Carolina, Chapter 15A of the
               General Statutes of North Carolina and applicable
               Federal and North Carolina case law.

Defendant’s motion does not specify what evidence she seeks to suppress, instead

focusing entirely on defendant’s contention that Lt. Shatley had no legal authority

to stop her.

       The record indicates that defendant was stopped twice. The first stop was in

response to Engine 32’s lights and siren, while the second was initiated by the

Chapel Hill police after defendant drove away from Lt. Shatley. In her appeal to

this Court, defendant again contends that evidence from the first stop was

improperly obtained. Accordingly, we conclude that defendant seeks to suppress all


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                                  Opinion of the Court



evidence obtained from the moment when Engine 32’s emergency signals were

activated until she drove away from Lt. Shatley.

       However, we need not consider the extent of Lt. Shatley’s authority to

conduct a traffic stop or even whether the encounter with Lt. Shatley amounted to a

“legal stop.” The record demonstrates that sufficient other evidence was presented

to establish that the Chapel Hill police had reasonable suspicion to stop defendant

based upon Lt. Shatley’s observations of defendant’s driving that he transmitted to

the Chapel Hill police before activating the lights and siren. When Chapel Hill

police officers stopped defendant, they made their own assessment of her condition

and collected sufficient evidence to support the charges they subsequently filed. At

defendant’s plea hearing, the prosecutor quoted from the affidavit of the arresting

officer, who reported that:

              I spoke with [defendant]. She said she was on her way
              home from a party where she had at least three glasses of
              wine. I noticed a strong odor of alcohol coming from her
              person. I asked her to perform several field sobriety tests
              which she did poorly on. I tried – I had to stop one test
              due to safety concerns for [defendant].

Defendant never contradicted or challenged any evidence relating to the stop by

Chapel Hill police officers. Moreover, defendant has never argued that any legal

error in the first stop would have any effect on the admissibility of evidence

gathered before that first stop by Lt. Shatley or during the second stop by Chapel

Hill police officers.



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                                 Opinion of the Court



      Because the stop by the Chapel Hill police was supported by reasonable

suspicion independent of any evidence derived from Lt. Shatley’s stop of defendant,

we conclude that the trial court correctly denied defendant’s motion to suppress.

We reverse the holding to the contrary by the Court of Appeals.

      REVERSED.




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