lN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE,
v.
ORLANDO L. WALKER,

Defendant

Submitted:

Decided:

Kristina Lehman, Esquire

Deputy Attorney General

820 N. French Street, 7"‘ Floor
Wilmington, DE 19801

Attorney for the State of Delaware

Case No. 1803015446

\_/\/\./\/\./\/V

August 21, 2018
October 16, 2018

James M. Stiller, Esquire
Schwartz & Schwartz
1140 South State Street
Dover, DE 19901
Atlorneyfor Defena'ant

MEMORANDUM OPINION AND ORDER
ON DEFENDANT’S MOTION TO SUPPRESS

The defendant, Orlando L. Walker (hereinafter the “Defendant”), brings this Motion to
suppress evidence. Defendant was arrested and charged for Driving Under the Influence (“DUI”)
for which he now stands trial. Defendant is seeking the suppression of all evidence against him,
claiming that the stop of his vehicle by the deputy fire chief of the Odessa Fire Company
constituted an unlawful stop. The State opposes Defendant’s request and alleges that the deputy
fire chief of the Odessa Fire Company was acting as a private citizen and not as a state actor and

therefore evidence, which is fruit of said stop, is admissible and not subject to the exclusionary

rule.

On August 21, 2018, a motion hearing was held and the issue of whether the deputy fire
chief of the Odessa Fire Company is considered a state actor was presented to the Court.l
Defendant’s Motion to Suppress contained other issues which were presented to the Court at the
motion hearing and the Court ruled as to those. Reserved for purposes of this Opinion was solely
the issue of whether the deputy fire chief constituted a state actor. The Court took judicial notice
of the fact that the Odessa Fire Company is not affiliated with the Offlce of the State Fire Marshal,
thus rendering the deputy fire chief a volunteer firefighter, as requested by Defendant.2 Trial is
scheduled for November 13, 2018. This is the Final Decision and Order of the Court on

Defendant’s Motion to Suppress.

FACTS AND PROCEDURAL HISTORY

On March 24, 2018, Defendant was arrested for DUI, in violation of 21 Del. C. § 1477(a),
Leaving the Scene of a Property Collision Accident, in violation of 21 Del. C. § 4201(a), Failure
to Provide Information at Collision Scene Resulting in Property Damage, in violation of 21 Del.
C. § 4201(b), Failure to Report a Collision Involving Alcohol or Drugs, in violation of 21 Del. C.
§ 4203(a), and Careless Driving, in violation of 21 Del. C. § 4176(a). These charges are the result
of the following events.

In the early morning hours of March 24, 2018, at approximately four-thirty a.m., Defendant
allegedly struck a parked fire truck at the scene of a house-fire while Defendant was traveling north
on Summit Bridge Road (“Route 301”). Keith Thomas Shoemaker, deputy fire chief of the Odessa

Fire Company, was notified upon arrival to the house-fire that a red truck with a Pennsylvania

 

1 During the motion hearing on August 21, 2018 all parties conceded that if the Court found that the deputy fire
chief was acting under the color of state law then he would not have had legal authority to make the stop of
Defendant’s vehicle.

2 Defendant requested that the Court takejudicial notice at the motion hearing See also Def`.’s Mot. 11 5(A).

2

license plate had struck the fire truck and fled north on Route 301. The deputy fire chief then
attempted to locate Defendant by traveling north on Route 301. Upon locating a red truck with a
Pennsylvania license plate meeting the description, the deputy fire chief pulled next to Defendant’s
vehicle and behind Defendant’s vehicle in an attempt to gain Defendant’s attention without
success. It was at that time that the deputy fire chief activated his vehicle’s emergency lights which
prompted Defendant to pull over on the right shoulder of the road. The deputy fire chief pulled
behind Defendant’s vehicle driving a red Chevy Tahoe-like SUV marked with the fire company
logo and announced via the vehicle’s loudspeaker for Defendant to remain in his vehicle.
Arresting officer, Corporal Saccomanno of the Delaware State Police Troop 9 (“Troop 9”)
responded to the scene followed by Corporal Hennon, also of Troop 9. lt is unclear from the
testimony of these officers what exactly the deputy fire chief was wearing at the time of the
incident, but it is presumed that he was in uniform as he was on duty at the time in question. The
deputy fire chief effectuated a stop of Defendant in his capacity as a volunteer firefighter with the
Odessa Fire Company, as there are no allegations that the deputy fire chief represented himself as

a police officer.

PARTIES’ CONTENTIONS
Defendant argues that the deputy fire chief was a state actor and therefore, did not have
authority to stop Defendant’s vehicle.3 Defendant requests that the Court adopt the similarities

Defendant draws between the volunteer deputy fire chief in this case and a state fire marshal which

 

3 During the motion hearing on August 21, 2018, defense counsel argued several times that the only information the
deputy tire chief had at the time he effectuated the stop of Defendant’s vehicle was that the suspect was driving a red
truck with a Pennsylvania license plate. Defense counsel reiterated that the lack of additional information, such as a
license plate number, amounted to a lack of reasonable articulable suspicion. Reasonable articulable suspicion to
make a stop is a standard applied only to state actors. We need not get into the reasonable articulable suspicion
analysis, as the parties agree that if the Court were to find the deputy fire chief to be a state actor then the stop would
not be legally sound. See supra note 1.

has been recognized in Delaware to be a state actor. Defendant places emphasis in the deputy fire
chief’s use of his emergency lights in making his argument that the stop constituted state action.
The State argues that the volunteer deputy fire chief of the Odessa Fire Company, which
is a non-profit organization not affiliated with the Office of the State F irc Marshal, is a private
actor rather than a state actor. The State requests that the Court find that the deputy fire chief was
a private actor, which would prevent the Fourth Amendment from attaching to the stop of

Defendant’s vehicle, thus making fruit of the stop admissible

DISCUSSION

Delaware courts have not dealt with this precise issue of determining whether a volunteer
firefighter effectuating a stop under these circumstances constitutes governmental action.
Delaware courts have addressed whether a state fire marshal conducting a stop qualifies as state
action but there is a vital distinction that separates these cases from the one here. The state fire
marshal is undoubtedly a state actor as they are a state agency. The Court is left to decide Whether
a volunteer firefighter affiliated with a local fire company, which is a non-profit organization, is
considered a state actor.4 The State5 and Defendant6 both cite to cases that are distinguishable from
Defendant’s. Under the particular circumstances of Defendant’s case, the Court finds that the

volunteer deputy fire chief was not a governmental actor.

 

4 See Administrative Division, Frequently Asked Questions, https://statefiremarshal.delaware.gov/wp-
content/uploads/sites/l 10/2017/07/faq.pdf (last visited Oct. 3, 2018); See also Ehart v. Odessa Fire Co., 2005 WL
34831 l, at *4 (D. Del. Feb. 2, 2005) (“[O]utside the City of Wilmington, fire protection services in Delaware are
provided by private volunteer fire companies.”).

5 State v. Lawrence, 2001 WL 1558338 (Del. Com. May 17, 2001) (Smalls, ChiefJ.) (finding that two off-duty out
of state police officers who conducted a stop of the defendant’s vehicle were not state actors).

6 State v. Tinlle, 2014 WL 3534990 (Del. Com. Feb. 28, 2014) (C. Welch, .l.) (finding that a State Fire Marshal, who
was a state actor, lacked reasonable and articulable suspicion to believe the defendant was committing a crime).

4

The First Circuit Court of Appeal of Louisiana decided a case, State v. Lavergne,7 that is
nearly identical to the facts of Defendant’s case, The court held that a volunteer firefighter was not
a state actor under the circumstances Given the lack of Delaware case law pertaining to the facts
of Defendant’s case, the Court finds Lavergne persuasive in deciding this matter.

“[T]he extent to which a particular person is a governmental agent or a private person
hinges upon a detailed factual analysis which carefully considers all relevant facts and
circumstances.”8 In Lavergne, the court on appeal considered whether a “volunteer fireman who
had activated emergency lights and sirens on his vehicle, who was reasonably believed to be a
police officer, was acting under the color of state law when he stopped [the defendant’s] vehicle,”9
later resulting in the defendant being charged with a DUI. In Lavergne, a volunteer firefighter was
traveling on the interstate when he observed the defendant driving “eratically.”lo A passenger in
the firefighter’s vehicle contacted the police to make a report. The firefighter continued to follow
the defendant, activated his lights and sirens “equipped on his personal vehicle and conducted a
stop.”ll The firefighter exited his vehicle and approached defendant’s vehicle for questioning
Later, the firefighter even went as far as to remove the defendant’s keys from his vehicle after the
defendant had exited.12 The court affirmed the trial court’s holding that the firefighter acted as a
private citizen based on the following: 1) there was “no evidence that [the firefighter] acted under
the instruction of law enforcement,”13 2) the firefighter’s “possession and utilization of a siren and

emergency lights, items customarily used by police, did not automatically convert his actions to

 

7 991 So. 2d 86 (La. Ct. App. 2008), writ denied, l So. 3d 494 (La. 2009).

8 State v. Verkerk, 747 S.E.2d 658, 666 (N.C. Ct. App.), review allowed, writ allowed, 749 S.E.Zd 841 (N.C. 2013),
and rev'd, 758 S.E.2d 387 (N.C. 2014) (relying on Lavergne to determine whether a fire lieutenant was a state actor).
9 Id. at 88.

10 Id_

" Id. (emphasis added) (footnote added).

12 [d_

'3 [d. at 89.

governmental actions,”14 3) the firefighters motivation for stopping the defendant was his concern
for public safety and 4) the firefighter did not identify himself as a police officer.15

Defendant’s matter before the Court meets all of the criteria set forth in Lavergne. Like
Lavergne, there is no evidence or allegation made implying that the deputy fire chief acted under
the direction of law enforcement when conducting the stop of Defendant’s vehicle. In addition,
Lavergne says the deputy fire chief` s use of emergency lights is not enough to render the stop state
action. Also like Lavergne, the deputy fire chief s motivation for following Defendant and
stopping his vehicle was because Defendant hit a parked fire truck, clearly posing a threat to public
safety. Finally, the last prong of the Lavergne considerations are met because the deputy fire chief
never represented to Defendant that he was a police officer. In fact, Defendant’s case is a clearer
case for the finding in Lavergne because after the deputy fire chief used his intercom system to
direct Defendant to remain in his vehicle he took no further action. The firefighter in Lavergne
took measures a step further by approaching the defendant’s vehicle to question him and later
taking defendant’s keys from the ignition.

Because the Court finds that the deputy fire chief was acting as a private citizen rather than

a governmental actor, evidence resulting from the stop will not be suppressed

 

14 [d
15 [d

CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED this 16th day of October, 2018,
that Defendant’s Motion to Suppress be DENIED.

§

The Honorable Robert H. Surles
Judge

