in the Court of Appeals 27 March 2019.
by Defendant from judgment entered 13 March 2018 by Judge
Karen Eady-Williams in Stanly County No. 17CRS700160 Court.
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.
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 find no error.
case arises from Defendant's failure to provide
identification to a trooper during a traffic stop. The
trooper had initiated the stop after witnessing Defendant, a
passenger in a vehicle traveling on a public highway, wave
and then extend his middle finger in the trooper's
general direction. Defendant moved to have evidence obtained
during the stop suppressed, contending that the stop was
illegal or was illegally prolonged. Based on the
trooper's testimony, which was the only evidence offered
at the suppression hearing, the trial court orally denied
Defendant's motion. Defendant then pleaded guilty to
resisting, delaying, and/or obstructing a public officer
during a stop. Defendant appeals.
Standard of Review
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).
However, in this case, the trial court did not enter any
written findings or conclusions. Rather, following testimony
from the trooper and arguments from the parties, the trial
court orally denied Defendant's motion to
suppress, stating as follows:
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.
Supreme Court has held 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. State
v. Nicholson, ___ N.C. ___, ___, 813 S.E.2d 840, 843
(2018) (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"). And at the
suppression hearing in this matter, there was no conflict in
the evidence, as the only evidence was 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 findings arising from the uncontested
evidence presented by [the officer] at the suppression
hearing support the trial court's conclusion that
reasonable suspicion existed to justify defendant's
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 the findings inferred from the
trooper's testimony support a conclusion that the stop
was illegal or was illegally prolonged.
Motion to Suppress
trial court orally concluded that the trooper had reasonable
suspicion to initiate the stop and, therefore, denied
trial court's inferred findings based on the
trooper's testimony tend to show the following:
trooper was assisting a stalled motorist on the side of U.S.
Highway 52 in Albemarle County. While assisting the motorist,
the trooper noticed a group of passing vehicles, including an
SUV. The trooper observed Defendant stick his arm out of the
passenger window of the SUV and make a hand-waving gesture in
the trooper's general direction. The trooper then
observed Defendant change the gesture to an up-and-down
pumping motion with his middle finger extended. The trooper
was unsure at whom Defendant was gesturing. In any event, the
trooper returned to his patrol car, pursued the SUV, and
pulled the SUV over.
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 and his wife, however, asked the
trooper why they had been stopped and stated that the trooper
had no right to stop them. Eventually, Defendant's wife
gave the trooper her license, but Defendant refused to
trooper requested that Defendant step out of the vehicle, and
Defendant eventually stepped out onto the side of the road.
The trooper then handcuffed Defendant and placed him into his
patrol car. While in the patrol car, Defendant gave the
officer his name. The trooper ran warrants checks and
obtained no results for Defendant nor his wife. The trooper
then issued Defendant a citation for resisting, delaying, and
obstructing an officer and allowed Defendant and his wife to
conclude that the trooper had reasonable suspicion to
initiate the stop. We note Defendant's contention that
the trooper's stop was unreasonable from the outset
because it is not a crime for one to raise his middle finger
at a trooper, as such conduct is simply an exercise of free
speech protected by the First Amendment of the United States
Constitution. U.S. Const. amend. I ("[The
legislature] shall make no law . . . abridging the freedom of
speech[.]"). Indeed, there are a number of decisions
from courts across the country where it was held that one
cannot be held criminally liable for simply raising his
middle finger at an officer.
issue here is not whether Defendant's conduct as
witnessed by the trooper - Defendant displaying a middle
finger - constitutes a crime. Indeed, Defendant was not
charged for any crime based on that particular conduct.
the issue is whether the trooper had reasonable
suspicion that criminal activity was afoot. See
State v. Barnard, 362 N.C. 244, 246-47, 658 S.E.2d 643,
645 (2008) (stating that an officer may initiate a stop based