NOTICE:  Take the following post with a grain of salt.  The Court of Appeals issued an updated opinion in the Ellis case on 20 August 2019. Although the opinion is still 2-1, most of the language in the original majority opinion that I blogged about pertaining to appellate practice and procedure has been removed.  The updated opinion also leaves no doubt that the issue of reasonable suspicion was first raised at the trial level.


Not too long ago, I blogged about the Court of Appeals’ analysis and results in In re CMB.  In that child custody case, the North Carolina trial court cited an inapplicable statute to assume temporary emergency jurisdiction and take immediate action.  The child’s mother appealed, arguing that the trial court failed to hold an evidentiary hearing before entering its order.

The Court of Appeals affirmed, holding that the trial court erred in finding a basis to act in the statute but that the trial court nevertheless had reached the correct result.  My blog addressed the “right-for-the-wrong-reason” doctrine reviewing courts sometimes mobilize in such cases.  Similar to the “no-harm-no-foul” rule familiar to basketball aficionados (go Heels!), the doctrine takes a bottom-line view of the trial proceedings.  As noted in that blog, the doctrine is strong on common sense but less so on theory.

Then the plot thickened.  Even though neither party sought additional review, the Court of Appeals sua sponte withdrew the opinion the day before the mandate was to issue.  On 6 August 2019, the panel issued a revised opinion, reversing the trial court and ordering the evidentiary hearing that the mother had requested.

We spied another version of the “right for the wrong reason” doctrine in the Court of Appeals opinion in State v. Ellis, No. COA18-817, also issued 6 August 2019.  This case involves the type of colorful facts beloved by news reporters and bloggers.

A Highway Patrol trooper was aiding a stranded motorist when the passenger in a passing SUV gave him the middle-finger salute.  The trooper pursued and, though he observed no traffic violations, stopped the SUV, ordered the passenger to exit the vehicle, and handcuffed him.  The passenger initially refused to identify himself but later gave his name.  After determining that no warrants were outstanding against anyone in the SUV, the trooper issued a citation to the passenger for resisting, delaying, or obstructing a public officer.

The pertinent statute is N.C.G.S. § 14-233, which denominates resisting as a Class 2 misdemeanor. While the opinion gives no information about what happened in District Court, it’s pretty safe to assume that the defendant was convicted and appealed to the Superior Court for trial de novo.

In Superior Court, the defendant moved to suppress the prosecution’s evidence.  The only evidence presented at the resulting pretrial hearing was the testimony of the trooper.  The trial court did not make written findings of fact but denied the motion, orally finding that reasonable suspicion existed for the stop and that, based on the totality of the evidence, probable cause existed for the arrest.  The defendant then pled guilty, reserving his right to appeal the denial of his suppression motion.

The Court of Appeals affirmed as to this issue.  Addressing the absence of findings of fact, the Court observed that the only evidence at the hearing was the trooper’s testimony.  Since this evidence was uncontested, the Court, citing State v. Nicholson, ___ N.C. ___, 813 S.E.2d 840 (2018), inferred that the trial court’s factual findings were based on that testimony.

The Court then found that reasonable suspicion existed that criminal activity was in the offing, thereby justifying the stop.  The Court further found that the trooper correctly continued the detention because the defendant refused to identify himself during a lawful stop.

Here’s where things get interesting and the “right-for-the-wrong-reason” doctrine pokes its head up.  The Court noted that the State never argued on appeal that the stop was based upon reasonable suspicion.  Instead, the State’s brief and oral argument relied solely on the “community caretaker” exception.  The Court found this argument baseless.

However, the Court asserted that because the State was the appellee, under the Rules of Appellate Procedure, the “reasonable suspicion” argument had not been abandoned.  The Court went on to state that it had a duty to affirm the trial court if any reason existed to do so.  The Court then found that reasonable suspicion existed to justify the stop.

I’ll pause here to note that Judge Arrowood dissented.  He agreed that there was no basis for the State’s “community caretaker” argument but found the majority’s alternate “reasonable suspicion” rationale specious.  Because the defendant was in a moving vehicle, no risk arose of a public disturbance.  In addition, he found the defendant’s gesture to be protected speech.  Accordingly, he argued that the trial court erred in denying the defendant’s motion to suppress.

Returning to the majority opinion, however, we see an appellate court again embracing a theory that neither party pursued on appeal.  As noted in my earlier blog, this process prevents the losing party on appeal (here, the defendant) from addressing the Court’s theory.  Indeed, the State may have concluded that it could not in good faith pursue the “reasonable suspicion” theory.

In addition, the majority stated that under the Rules of Appellate Procedure, an appellee’s argument is not abandoned, even if not raised in the appeal.  The Court cited no specific rule, though Rule 10 deals with waiver in the trial tribunal and Rule 28 deals with abandonment in the appellate division.  Appellate Rule 10(a) deals with preservation requirements and speaks of “parties” and “criminal defendants,” not appellants and appellees.  Rule 10(c) addresses the raising of additional issues by an appellee in an appellate brief, but only if those issues were properly preserved at trial.  The sparse trial court record, though suggestive, does not reveal with any certainty whether the issue of reasonable suspicion was argued at that level or was waived.

Moreover, it’s not clear how the Court’s statement meshes with Rule 28(a)’s provision that “Issues not presented and discussed in a party’s brief are deemed abandoned.”

There’s more to this case than the superficially sensible suggestion not to shoot the bird at someone who can return the favor with a Smith and Wesson.  In light of the dissent, the Supremes may take a look at this case.  Keep your eyes peeled.

–Bob Edmunds

**FLASH: THIS JUST IN.  As this blog was on the verge of being posted, I learned that the Ellis opinion has been withdrawn and removed from the Court of Appeals’ webpage.  Let’s see what happens next.**