State v. Ellis

267 N.C.App. 65

832 S.E.2d 750

STATE of North Carolina

v.Shawn Patrick ELLIS, Defendant.

No. COA18-817

Court of Appeals of North Carolina.

Filed: August 20, 2019

Attorney General Joshua H. Stein, by Assistant Attorney General, Kimberly N. Callahan, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Michele A. Goldman, for the Defendant.

DILLON, Judge.

Defendant Shawn Patrick Ellis appeals the trial court's judgment entered upon his guilty plea to resisting, delaying, and/or obstructing a public officer during a stop. Defendant contends that the trial court erred in denying his motion to suppress evidence. After careful review, we affirm.¹

I. Background

This case arises from Defendant's failure to identify himself to a trooper during a stop. It is a crime in North Carolina for one to refuse to identify himself to a police officer during a valid stop. See State v. Friend , 237 N.C. App. 490, 768 S.E.2d 146 (2014) (refusing to provide identification during a valid stop may constitute violation of N.C. Gen. Stat. § 14-223 (2017) ).

The key issue in this case is whether the trooper conducted a valid stop of Defendant. As reiterated by our Supreme Court just last year, "the Fourth Amendment permits a police officer to conduct a brief investigatory stop of an individual based on reasonable suspicion that the individual is engaged in criminal activity." See State v. Nicholson , 371 N.C. 284, 288-89, 813 S.E.2d 840, 843 (2018) (emphasis added). As explained by our Supreme Court, the "reasonable suspicion" standard required to justify the initiation of a brief, investigatory stop is a low standard, much lower than the "probable cause" standard necessary to initiate an actual arrest, and does not require that the officer witness actual criminal behavior:

The Fourth Amendment permits brief investigative stops ... when a law enforcement officer has "a particularized and objective basis for suspecting the particular person stopped of criminal activity." ... The standard takes into account the totality of "the circumstances—the whole picture." Although a mere "hunch" does not create reasonable suspicion, the level of suspicion the standard requires is "considerably less than proof of wrongdoing by a preponderance of the evidence," and "obviously less" than is necessary for probable cause.

Id. at 289, 813 S.E.2d at 843 (quoting Navarette v. California , 572 U.S. 393, 396-97, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014) ).

Here, the only evidence offered at the suppression hearing was the testimony of the trooper. Defendant did not testify or offer any evidence to refute the trooper's testimony. The trooper essentially testified that, while standing on the side of road assisting another driver in icy conditions, he witnessed Defendant wave his entire arm out the window in a distracting manner. At this time, Defendant was riding as a passenger in a vehicle traveling on a public highway in the middle of a group of vehicles all going the same direction. The trooper testified that after Defendant traveled another one hundred (100) yards past his position on the side of the road, Defendant changed his arm gesture to a pumping motion with his middle finger extended. He testified that it was unclear whether Defendant was gesturing to him all this time or was gesturing to someone in one of the other vehicles. The trooper testified that he stopped Defendant to investigate the situation but that Defendant refused to identify himself. Defendant was charged and convicted for his failure to identify himself, not for the gestures.

Defendant moved to suppress the officer's testimony concerning his refusal to identify himself, based on his contention that the facts did not give rise to establish "reasonable suspicion" to justify the stop. Based on the trooper's testimony, however, the trial court orally denied Defendant's motion to suppress. Defendant then pleaded guilty to resisting, delaying, and/or obstructing a public officer during a stop.

II. Motion to Suppress

On appeal, Defendant argues that the trial court erred in denying his motion to suppress.

A. Standard of Review

Typically, we review the denial of a motion to suppress to determine "whether competent evidence supports the trial court's findings of fact and whether the findings of fact support the conclusions of law." State v. Jackson , 368 N.C. 75, 78, 772 S.E.2d 847, 849 (2015).

In this case, though, the trial court did not make any findings or enter any written order.

Rather, following the trooper's testimony and counsels’ arguments, the trial court orally denied Defendant's motion, stating:

Based on a review of the evidence, the Court does find reasonable suspicion for the stop. In addition, based on the totality of the evidence the Court does find probable cause for the arrest [for Defendant's failure to identify himself during the stop].

Our Supreme Court has held, however, that the lack of specific findings in an order is not fatal to our ability to conduct an appellate review if the underlying facts are not in dispute. Nicholson , 371 N.C. at 288, 813 S.E.2d at 843 (stating that "when the facts are not disputed and the trial court did not make specific findings of fact either orally or in writing, we infer the findings from the trial court's decision and conduct a de novo assessment of whether those findings support the ultimate legal conclusion reached by the trial court"). Here, Defendant offered no evidence to refute any of the trooper's testimony. Therefore, we infer the factual findings based on the trooper's testimony. See Nicholson , ––– N.C. at ––––, 813 S.E.2d at 843 ("[W]e consider whether the inferred factual findings arising from the uncontested evidence presented by [the trooper] at the suppression hearing support the trial court's conclusion that reasonable suspicion existed to justify defendant's seizure.").

Further, the lack of written conclusions of law is not fatal to meaningful appellate review, as we review a trial court's conclusions of law de novo anyway. See State v. McNeill , 371 N.C. 198, 220, 813 S.E.2d 797, 813 (2018) ("We review conclusions of law de novo."). That is, the lack of written conclusions does not inhibit our ability to determine whether or not the findings inferred from the trooper's undisputed testimony support a conclusion that the stop was valid.

B. Uncontested Facts

The trial court's inferred findings based on the trooper's testimony tend to show the following:

Around lunchtime on 9 January 2017, the trooper was assisting a motorist in a disabled vehicle on the side of U.S. Highway 52 in Albemarle. There had been a heavy snowstorm in the area a few days prior, snow was still on the ground, and the temperature was still below freezing. The trooper had been assisting other motorists, as there had been a number of reported accidents in the area.

While assisting the motorist, the trooper noticed a group of three or four passing vehicles, including an SUV in the middle of the pack. As the vehicles passed, the trooper saw Defendant stick his arm all the way out of the passenger window of the SUV and make a hand-waving gesture, "a back-and-forth motion [ ] from [the trooper] towards [Defendant]." At this point, the trooper "believed that [Defendant,] was signaling for [his] attention and was requesting for [him] to respond." The trooper, therefore, turned his entire body away from the motorist he was assisting and toward the passing vehicles to get a better look.

When the SUV was one hundred (100) yards past the trooper's position, the trooper observed Defendant still gesturing with his arm, but that his gesture changed at this point to an up-and-down pumping motion with his middle finger extended:

[TROOPER:] I know there was a group of three or four cars around that passed, and then as this caught my attention, I did turn my body and completely look. The vehicle was approximately a hundred yards or so past me at this point, at which point my body turned and began to look towards the traffic. The -- hand of the passenger changed from the motioning to a middle finger and was now pumping up and down in the air like this (demonstrating).

The trooper was unsure whether Defendant was gesturing all this time at him or at someone in one of the vehicles around him:

[COUNSEL:] Okay. So based on this -- this action that you saw, what did you believe was occurring?

[TROOPER:] Actually, two things, sir. I believe, number one, this person signaled to me. For what, I don't know. And number two, they committed a crime of disorderly conduct either towards me or towards someone on the road or with other vehicles -- again, something I was unsure of and had to conduct a traffic stop to find out both of those answers.

The trooper returned to his patrol car and pursued the SUV. During the pursuit, the trooper did not observe the SUV engage in any traffic violations. The trooper, though, did pull the SUV over to investigate the matter.

The trooper approached the SUV and observed Defendant and his wife, who was in the driver's seat, take out their cell phones to record the traffic stop. The trooper knocked on Defendant's window, whereupon Defendant partially rolled it down. The trooper asked Defendant and his wife for their identification. Defendant's wife eventually gave the trooper her license, but Defendant refused to comply.

Defendant's failure to identify himself at that point was a violation of the law. The trooper then requested that Defendant step out of the vehicle. The trooper handcuffed Defendant and placed him in his patrol car. While in the patrol car, Defendant finally gave the trooper his name and told the trooper that he was gesturing toward him. After running warrants checks which yielded no results, the trooper issued Defendant a citation for resisting, delaying, and obstructing an officer and allowed Defendant and his wife to leave.

C. Analysis

Defendant argues that the trooper's stop was not valid, contending that it is not a...