NC Supreme Court: No Reasonable Suspicion to Stop Vehicle Where Passenger "Flipped Off" Police Officer

In a unanimous opinion filed on May 1st, 2020, the North Carolina Supreme Court reversed the Court of Appeals decision in State v. Shawn Patrick Ellis 832 S.E.2d 750 (N.C. Ct. App. 2019), and held that there was no reasonable suspicion to pull over a passing vehicle where a passenger “flipped off” a police officer. The opinion is available here.

The opinion briefly summarized the facts as follows:

“While assisting the stranded motorist, Trooper Stevens turned his attention to another car traveling on the roadway. Defendant, a passenger in a small white SUV, had his arm outside of the window and was making a back-and-forth waving motion with his hand. As Trooper Stevens turned to look towards the car, defendant’s gesture changed from a waving motion to a pumping up-and-down motion with his middle finger. Believing that defendant was committing the crime of disorderly conduct, Trooper Stevens got into his patrol car to pursue and stop the SUV. Trooper Stevens pursued the vehicle for approximately half a mile with his blue lights still activated. Trooper Stevens did not observe the SUV break any traffic laws during his pursuit, and the SUV pulled over to the side of the road without incident.”

The defendant was ultimately charged with Resisting A Public Officer for refusing to provide his identification after the stop. He argued that the evidence that he resisted an officer should have been suppressed because the stop of the vehicle he was riding in was a violation of his 4th Amendment right to be free from unreasonable seizures. A law enforcement officer may pull over a vehicle (and seize the occupants) for a brief investigatory stop when there is reasonable articulable suspicion that a crime may have occurred. After briefly addressing, and rejecting, an alternative basis for stopping vehicles under a police officer’s “community caretaking” function, the N.C. Supreme Court turned to whether there was reasonable suspicion that the defendant, Mr. Ellis, had committed any crime by flipping off the officer.

The officer believed that the crime being committed by the Defendant was Disorderly Conduct. The Court summarized that offense as follows: “Disorderly conduct is a public disturbance intentionally caused by any person who . . . [m]akes 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.” N.C.G.S. § 14-288.4(a)(2) (2017).

Applying this, the Court reasoned: “Based on the facts in the record, we are unable to infer that, by gesturing with his middle finger, defendant was intending to or was likely to provoke a violent reaction from another driver that would cause a breach of the peace.” The Court also noted that it is unclear who the Defendant may have even been “flipping off.”

Because these actions by the Defendant could not have constituted the crime of Disorderly Conduct, the officer would not have had reasonable suspicion to have stopped the vehicle the Defendant was in. The Court narrowed its ruling to the 4th Amendment issue and declined to address the First Amendment issues that were also raised in this case.