Reasonable Suspicion: Can you give police the Middle Finger?

Shawn Patrick Ellis created quite a kerfuffle in more ways than one.

His defiant middle finger and later refusal to identify himself to law enforcement resulted in a Superior Court criminal conviction for Resisting Officers.

On a day focused on NC court closures, continuances, and the Coronavirus, Justice Robin Hudson delivered an opinion addressing the legality of giving someone the middle finger.

Previously, in discussing issues involving Reasonable Suspicion and the “Community Caretaker Function,” the North Carolina Court of Appeals remarkably and possibly humorously concluded:

There is no basis to believe that the middle-finger gesture is a sign of distress in Stanly County

One might expect obscene gestures and less-than-kind utterances during a protest in big-city Charlotte or on Jones Street in Raleigh.

In everyday life, flipping off the police in about anywhere else in North Carolina seems likely to result in “negative attention” by law enforcement.

And so, while it may be entirely legal, many criminal defense lawyers still agree giving police officers the middle finger is generally ill-advised.

Such boorish behavior in polite southern culture most certainly caused more than one tilted head and exasperated, “Lord” from courtroom lawyers.

That was especially true in August 2019, when defense attorneys read with interest a Court of Appeals opinion addressing:

1. Another attempted expansion of the “Community Caretaking Function Exception” to the Fourth Amendment; and,
2. Whether “flipping the bird” to either law enforcement or a private citizen constitutes Reasonable Suspicion to Stop a vehicle.

Who would have thought “gigging someone” would come to this?

Shutting Down Expansion of “Exceptions to the 4th Amendment”

In North Carolina v. Ellis (No. 340A19) there is no material conflict in the evidence.

The oral ruling on Defendant’s Motion to Suppress for Lack of Reasonable Suspicion did not necessitate formal Findings of Fact by the Court.

The Supreme Court in Ellis opines, “. . .[T]he trial court’s findings can be inferred from its decision.”

The law enforcement officer, a State Trooper in Stanly County (Albermarle NC, just outside Mecklenburg County), testified he was at first uncertain whether he or another motorist was the intended target of the middle-finger.

Mr. Ellis, the passenger of the vehicle, apparently started by waving at officers responding to another motorist who’d run out of gas, and thereafter changed his wave to the middle finger.

In fact, Mr. Ellis seems to have enhanced for effect his bird-flipping by pumping his hand in “an up-and-down motion,” presumedly à la mode de Tiger Woods sinking a long put to win the Masters.

On appeal and of no small importance, the State conceded there was not Reasonable Suspicion to stop the “suspect” vehicle for a Chapter 20 violation.

The fact that the driving was otherwise perfect, no weaving in the lane, no other NC DMV violations, nothing, now that’s something – Bill Powers 

The State’s legal theory centered on “disorderly conduct” and concerns about a possible violent response to the middle finger.

The Supreme Court of North Carolina accepted the State’s acknowledgment of no Reasonable Suspicion.

Disorderly Conduct, Violent Retaliation, and Law Enforcement

The North Carolina criminal law regarding Disorderly Conduct speaks of making or using “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.

While not addressed by the Supreme Court, one would be remiss in failing to note that portions of our Disorderly Conduct statute in North Carolina may per se be unconstitutional as overly broad and void for vagueness – Bill Powers, Charlotte Criminal Lawyer

What does “plainly likely to provoke” mean?

Is there such a thing as “fighting words” anymore in our increasingly less polite society?

One conclusion of North Carolina v. Ellis is that law enforcement officers subject to middle-fingers are held to a higher standard.

Their reaction should not result in violent retaliation.

Motions to Suppress

Once stopped, the Defendant at first refused to provide personal, identifying information, thus resulting in a charge of Resisting (Resist Delay Obstruct) consistent with N.C.G.S. § 14-223.

The Supreme Court made clear that even as a passenger of a vehicle, refusing to identify oneself to a police officer may constitute Resisting Officers.

The Supreme Court emphasized, referencing in italics, the need for a valid stop.  

Indeed, if predicated on, as a matter of law, an invalid stop due to lack of Reasonable Suspicion or Probable Cause, evidence seized would be suppressed as Fruit of the Poisonous Tree.

Had the State Highway Patrol Officer gathered evidence of DWI charges, drug trafficking, or even a murder, the “bad stop” would end the discussion.

Defendant’s Motion to Suppress Evidence and likely related Motion to Dismiss for Lack of Evidence is a fait accompli.

Related Topics of Interest

1. Resisting Arrest in North Carolina 
2. Middle Finger to Police – Reasonable Suspicion – Court of Appeals Opinion
3. What is Probable Cause? 
4. Bill Powers – Professional Profile and Criterion for Inclusion – Best Lawyers in America
5. Law Talk with Bill Powers – Podcast