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A Night To Remember

North Carolina Supreme Court: Giving Finger to Police Not Disorderly Conduct Justifying Traffic Stop

by Dale Chappell

A unanimous Supreme Court of North Carolina held on May 1, 2020, that waving the middle finger at the police was not disorderly conduct to justify a traffic stop and subsequent charges stemming from that stop.

Trooper Paul Stevens of the North Carolina Highway Patrol was assisting a stalled vehicle in Stanly County in January 2017, when Shawn Ellis went by in a vehicle with his arm out the window. He waved at Trooper Stevens and then gave him the finger. Stevens then pursued Ellis for about a half-mile until the vehicle stopped. When Stevens asked him for identification, Ellis initially refused. He was cited for resisting, delaying, or obstructing an officer.

In the trial court, Ellis moved to suppress the evidence, arguing there was no reasonable suspicion to justify the stop. In other words, he wasn’t committing a crime to justify the stop. That motion was denied, and he pleaded guilty, reserving his right to appeal the denial of his motion to suppress.

On appeal, the State argued the community caretaking exception to the warrant requirement under the Fourth Amendment was the basis for the stop, so Trooper Stevens didn’t need reasonable suspicion to stop Ellis. But the court of appeals rejected that argument and instead found that Ellis giving the police the finger was enough for reasonable suspicion. Ellis took his case to the North Carolina Supreme Court.

The question before the high court was whether the stop was valid. If not, Ellis’ conviction for obstruction could not stand. The only way the stop could have been valid was if “flipping the bird” constituted disorderly conduct, the Court noted. Under N.C.G.S. § 14-288.4(a)(2), “disorderly conduct is a public disturbance intentionally caused by any person who ... makes or uses any utterance, gesture, display or abusive language which is intended and plainly likely to provoke violent retaliation and thereby cause a breach of the peace.”

The Supreme Court found that, under the facts known at the time, Trooper Stevens did not have reasonable suspicion to suspect Ellis was engaged in disorderly conduct. Those facts were: (1) Ellis gestured with his middle finger; (2) Trooper Stevens didn’t know if his gesture was directed at him or someone else; and (3) after pursuing the vehicle for half a mile, Trooper Stevens did not observe any traffic violations or other suspicious behavior.

“We conclude that these facts alone are insufficient to provide reasonable suspicion that defendant was engaged in disorderly conduct,” the Court said. And even if Ellis was giving the finger to another person, that “does not, on its own, provide reasonable suspicion that defendant intended to or was plainly likely to provoke violent retaliation from another driver” to suspect disorderly conduct, the Court explained.

Accordingly, the Supreme Court reversed Ellis’ conviction and remanded the case. See: State v. Ellis, 841 S.E.2d 247 (N.C. 2020).

Related legal case

State v. Ellis

 

 

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