IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1120
Filed: 18 July 2017
New Hanover County, No. 13 CRS 57210
STATE OF NORTH CAROLINA
v.
DARIUS TERRELL HESTER
Appeal by defendant from judgment entered 1 April 2016 by Judge Phyllis M.
Gorham in New Hanover County Superior Court. Heard in the Court of Appeals 20
April 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L.
Hyde, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Kathryn L.
VandenBerg, for defendant-appellant.
TYSON, Judge.
Darius Terrell Hester (“Defendant”) appeals from his conviction of felonious
possession of a stolen firearm following the trial court’s denial of his motion to
suppress. Due to Defendant’s failure to object at trial, this issue is properly before us
solely upon plain error review. Defendant has failed to carry his burden to show error
or plain error in the jury’s verdict or the judgment entered thereon.
I. Background
STATE V. HESTER
Opinion of the Court
New Hanover County Sheriff’s Deputy Joshua Cranford was familiar with the
Rockhill Road area in Wilmington, as he regularly patrolled that area as part of his
patrol route. He described the area as having a history of criminal gang and drug
activity. Deputy Cranford testified a recent home invasion had occurred in the area
and numerous “break-ins” in the past. He had personally made one arrest for home
invasion. He was unable to specifically recall making any arrests for breaking and
entering or drug activity in the area. Deputy Cranford testified that officers generally
share information with each other about areas where criminal activity is afoot and
crimes are committed.
New Hanover County Sheriff’s Detective Kenneth Murphy had served as a law
enforcement officer for seventeen years. He also testified about criminal activity in
the Rockhill Road area. Three homicides occurred in the neighborhood between 1999
and 2003. Detective Murphy testified the area was “known for” breaking and
entering, drug activity, and drive-by shootings. He was unaware of when the most
recent breaking and entering crimes had occurred prior to 16 August 2013.
At around 10:30 a.m. on Friday, 16 August 2013, Deputy Cranford was
patrolling the area in his marked patrol car and turned onto Rockhill Road. He was
unaware of whether any crimes had been committed in the area that morning or the
previous night. After driving approximately one-half mile on Rockhill Road, Deputy
Cranford noticed a car was pulled over toward the side of the road, but was partially
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Opinion of the Court
parked on the travel lane of the roadway. He initially believed the car might be
disabled. As Deputy Cranford’s marked patrol car approached the front of the parked
vehicle and came within fifty yards of the vehicle, it moved and the driver drove away
“in a normal fashion.”
When the car pulled away, Deputy Cranford “saw [Defendant] walk away from
the vehicle and cross the road in front of [him] and continue up Rockhill Road in the
opposite direction.” Deputy Cranford did not know whether Defendant had gotten
out of the car or had been speaking with anyone inside the car.
Deputy Cranford also testified he believed the car had pulled away and
Defendant had crossed the road in reaction to his arrival and presence. He further
testified he did not know “if [Defendant] was lost,” or whether a drug deal had just
occurred. He believed Defendant may have been dropped off on the road in order to
break into people’s homes.
Deputy Cranford testified he “wanted to get outside and investigate and make
sure everything was okay,” because of the “area that we were in” and the fact that
Defendant walked from the car and the car pulled away as he approached. Deputy
Cranford turned his vehicle around, activated his blue lights, and stopped Defendant.
Deputy Cranford exited his patrol car and asked Defendant whether he
possessed any drugs or weapons. Defendant responded that he did not. Deputy
Cranford asked Defendant for identification. Defendant did not possess a photo
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Opinion of the Court
identification, but gave Deputy Cranford his name and date of birth. Defendant was
initially polite and cooperative. He asked Deputy Cranford if he had done anything
wrong. Deputy Cranford responded that he had not done anything wrong.
Deputy Cranford asked Defendant to remain at the front of his patrol car while
he sat inside his patrol car. Deputy Cranford contacted the Sheriff’s dispatcher to
determine whether Defendant had any outstanding arrest warrants.
Defendant walked from the front of the patrol car to the driver’s side and “stood
[at] the entrance of the car door,” which made Deputy Cranford “uncomfortable.”
Deputy Cranford instructed Defendant to return to the front of the patrol car.
Moments later, Defendant “tried to do the same thing again.” At that point, Deputy
Cranford exited his patrol car, stood at the front of the car with Defendant, and
awaited a response from the Sheriff’s dispatcher. The Sheriff’s dispatcher informed
Deputy Cranford that Defendant had no outstanding warrants, but that he was
“known to carry” a concealed weapon based upon a prior charge for carrying a
concealed weapon.
Deputy Cranford again asked Defendant whether he possessed a weapon.
Defendant lied and responded that he did not. At that point, Deputy Cranford
observed a slight bulge under Defendant’s shirt. Defendant became confrontational
when Deputy Cranford asked him to lift his shirt. Defendant lifted his shirt and
pulled a handgun from his waistband. Deputy Cranford testified that Defendant
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Opinion of the Court
pointed the gun at him and pulled the trigger. He heard the hammer click, but the
weapon did not discharge.
Deputy Cranford testified he backed up and drew his weapon. He began to fire
shots at Defendant, who fled while still carrying his handgun. Deputy Cranford
chased Defendant down a dirt path and lost sight of him as Defendant rounded a
corner. Deputy Cranford turned the corner and saw Defendant lying on the ground.
Defendant had been shot in the shoulder. Defendant told Deputy Cranford he had
dropped his gun. Deputy Cranford placed Defendant under arrest.
Deputy Cranford recovered Defendant’s handgun in the dirt path about twenty
yards away. The recovered gun was found to be loaded with a full clip and it had
been reported as stolen from a home in Wilmington in 2013. At trial, Defendant
testified he had bought the gun “from off the streets” and that he knew such guns
were typically stolen.
Defendant was indicted and tried on the charges of attempted murder and
possession of a stolen firearm. Defendant testified he did not point the gun at Deputy
Cranford or pull the trigger. He stated he was attempting to hand Deputy Cranford
the gun, with the barrel pointed toward the ground.
Defendant testified Deputy Cranford reacted with shock and reached for his
weapon. Defendant ran. He stated he was holding the handgun when he ran, but
threw it prior to being shot. Defendant was acquitted of the attempted murder
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Opinion of the Court
charge. The jury found him to be guilty of possession of a stolen firearm. Defendant
appeals.
II. Jurisdiction
Jurisdiction lies in this Court from final judgment of the superior court entered
upon the jury’s verdict pursuant to N.C. Gen. Stat. §§ 7A-27(b)(1) and 15A-1444(a)
(2015).
III. Standard of Review and Defendant’s Preservation of Error
“The standard of review in evaluating the denial of a motion to suppress is
whether competent evidence supports the trial court’s findings of fact and whether
the findings of fact support the conclusions of law.” State v. Biber, 365 N.C. 162, 167-
68,
712 S.E.2d 874, 878 (2011) (citing State v. Brooks,
337 N.C. 132, 140-41,
446
S.E.2d 579, 585 (1994)).
Defendant’s motion to suppress was heard prior to trial. The trial court denied
the motion immediately following the presentation of evidence and arguments of
counsel. Defendant concedes defense counsel failed to object when the evidence
resulting from the stop, and particularly the stolen handgun, was offered at trial. The
admission of the handgun evidence must be reviewed for plain error. State v. Golphin,
352 N.C. 364, 405,
533 S.E.2d 168, 198 (2000) (holding a motion in limine is
insufficient “to preserve for appeal the question of admissibility of evidence if the
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Opinion of the Court
defendant did not object to the evidence at the time it was offered at trial”), cert.
denied, 532 U.S. 931,
149 L. Ed. 2d 305 (2001).
At trial, Defendant failed to object to numerous references to his possession of
the stolen handgun, or to object to the tender and admission of the handgun into
evidence. During his testimony, Defendant acknowledged he had purchased and
possessed the stolen handgun, but denied pointing it at Deputy Cranford or pulling
the trigger.
The State argues Defendant elicited the same evidence and testified at trial,
and is not entitled to plain error review, because he invited the error. See N.C. Gen.
Stat. § 15A-1443(c) (2015) (“A defendant is not prejudiced by the granting of relief
which he has sought or by error resulting from his own conduct.”). The State cites
State v. Gobal, 186 N.C. App. 308, 319,
651 S.E.2d 279, 287 (2007), aff’d per curiam,
362 N.C. 342,
661 S.E.2d 732 (2008) (“Statements elicited by a defendant on cross-
examination are, even if error, invited error, by which a defendant cannot be
prejudiced as a matter of law.”).
Once the trial court denied Defendant’s motion to suppress based upon lack of
reasonable suspicion for the stop, Defendant was required to defend against the
charges of attempted murder and felonious possession of a stolen firearm. He
defended the charges by testifying about the circumstances surrounding his
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Opinion of the Court
possession of the stolen handgun. This testimony was subject to cross-examination
by the State.
While defending against the attempted murder charge, Defendant testified to
explain his actions of surrendering the weapon and stated he did not point or fire his
gun at Deputy Cranford. A defendant does not waive an objection to evidence by
seeking “to explain, impeach or destroy its value.” State v. Badgett, 361 N.C. 234, 246,
644 S.E.2d 206, 213 (citation omitted), cert. denied,
552 U.S. 977,
169 L. Ed. 2d 351
(2007). Defendant’s appeal from the denial of his motion to suppress is properly
before us on plain error review, and not invited error. See
id.
“Under the plain error rule, defendant must convince this Court not only that
there was error, but that absent the error, the jury probably would have reached a
different result.” State v. Jordan, 333 N.C. 431, 440,
426 S.E.2d 692, 697 (1993)
(citation omitted). This burden rests upon Defendant. See
id.
IV. Denial of Defendant’s Motion to Suppress
Defendant’s sole argument on appeal asserts the trial court erred by denying
his motion to suppress the evidence obtained from the stop. Defendant argues Deputy
Cranford did not possess a reasonable suspicion that he was involved in criminal
activity when Deputy Cranford initially stopped and questioned him.
A. Fourth Amendment Protections
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Opinion of the Court
The United States and North Carolina Constitutions protect against
unreasonable searches and seizures. U.S. Const. amend. IV; N.C. Const. art. I, § 20.
The protections of the Fourth Amendment apply “to seizures of the person, including
brief investigatory detentions.” State v. Watkins, 337 N.C. 437, 441,
446 S.E.2d 67,
69-70 (1994) (citing Reid v. Georgia,
448 U.S. 438, 440,
65 L. Ed. 2d 890, 893 (1980)).
A “seizure” has occurred under the Fourth Amendment when an officer uses a “show
of authority” to stop a citizen. Florida v. Royer,
460 U.S. 491, 501-02,
75 L. Ed. 2d
229, 239 (1983). “[T]he crucial test [to determine if a person is seized] is whether,
taking into account all of the circumstances surrounding the encounter, the police
conduct would have communicated to a reasonable person that he was not at liberty
to ignore the police presence and go about his business.” Florida v. Bostick,
501 U.S.
429, 437,
115 L. Ed. 2d 389, 400 (1991) (citation and quotation marks omitted).
Here, Deputy Cranford turned his vehicle around and activated his blue lights
after arrival upon the scene. Defendant stopped walking and voluntarily talked with
Deputy Cranford. Defendant failed to provide a photo identification to the officer, but
provided his name and address. The trial court properly analyzed this encounter as
a stop. The State does not contest that Defendant was seized to implicate the Fourth
Amendment. A reasonable person would not have felt at liberty to ignore Deputy
Cranford’s presence and the use of blue lights on his marked vehicle, and continue to
walk away. See id.
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STATE V. HESTER
Opinion of the Court
To survive Fourth Amendment scrutiny, an investigatory stop must be
justified by “a reasonable suspicion, based on objective facts, that the individual is
involved in criminal activity.” Brown v. Texas, 443 U.S. 47, 51,
61 L. Ed. 2d 357, 362
(1979) (citations omitted). As applied by the Supreme Court of North Carolina: “A
court must consider the totality of the circumstances—the whole picture in
determining whether a reasonable suspicion exists” to justify an officer’s
investigatory stop. State v. Otto,
366 N.C. 134, 138,
726 S.E.2d 824, 828 (2012)
(citation and quotation marks omitted).
“The stop must be based on specific and articulable facts, as well as the rational
inferences from those facts, as viewed through the eyes of a reasonable, cautious
officer, guided by his experience and training.” Watkins, 337 N.C. at 441-42,
446
S.E.2d at 70 (citing Terry v. Ohio,
392 U.S. 1, 21-22,
20 L. Ed. 2d 889, 906 (1968));
State v. Thompson,
296 N.C. 703, 706,
252 S.E.2d 776, 779, cert. denied,
444 U.S. 907,
62 L. Ed. 2d 143 (1979). “The only requirement is a minimal level of objective
justification, something more than an ‘unparticularized suspicion or hunch.’”
Watkins,
337 N.C. at 442,
446 S.E.2d at 70 (quoting U.S. v. Sokolow,
490 U.S. 1, 7,
104 L. Ed. 2d 1, 10, (1989)).
At the conclusion of the suppression hearing, the trial court recited the
evidence presented, as detailed above, and stated:
The Court concludes as a matter of law that the Court
takes into consideration the officer’s personal observations
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Opinion of the Court
at the time that he observed a vehicle and the defendant
on Rockhill Road, that it was – that it is a high crime area
where several breaking and enterings, drug activity, and
drive-by shootings have occurred in the past; and that
Deputy Cranford did not have all this information himself
as he had not himself made several arrests for breaking
and enterings or the activity in that area, that the officers
shared this information and that Deputy Cranford would
receive updates of information about the area in which he
was patrolling on a regular basis when he was on duty.
Therefore, the Court does find that the officer did have
reasonable suspicion to believe that a crime was being
committed at the time that he stopped the defendant on
Rockhill Road. Therefore, the Court is going to deny the
motion to suppress the evidence.
C. Intervening Circumstance
Even if this Court were to accept Defendant’s argument that Deputy
Cranford’s initial stop of Defendant was not based upon a reasonable suspicion that
Defendant was involved in criminal activity, the trial court’s ultimate ruling on
Defendant’s motion to suppress to allow admission of the stolen handgun is properly
upheld.
Viewed in the light most favorable to the State and under plain error review,
evidence presented to the trial court at the hearing on Defendant’s motion to suppress
showed the recovered stolen handgun and all evidence related to the stolen handgun
were obtained after Defendant’s commission of a separate crime: pointing a loaded,
stolen gun at Deputy Cranford and pulling the trigger. At the suppression hearing,
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Opinion of the Court
the trial court expressly found Defendant pointed the gun at the officer and pulled
the trigger.
Evidence discovered as a result of an illegal search or seizure is generally
excluded at trial. See Wong Sun v. United States, 371 U.S. 471, 487-88,
9 L. Ed. 2d
441, 455 (1963). “[T]he exclusionary rule encompasses both the ‘primary evidence
obtained as a direct result of an illegal search or seizure and, relevant here, evidence
later discovered and found to be derivative of an illegality,’ the so-called ‘fruit of the
poisonous tree.’” Utah v. Strieff, __ U.S. __, __,
195 L. Ed. 2d 400, 407 (2016) (quoting
Segura v. United States,
468 U.S. 796, 804,
82 L. Ed. 2d 599, 608 (1984)). However,
[w]e need not hold that all evidence is fruit of the poisonous
tree simply because it would not have come to light but for
the illegal actions of the police. Rather, the more apt
question in such a case is whether, granting establishment
of the primary illegality, the evidence to which instant
objection is made has been come at by exploitation of that
illegality or instead by means sufficiently distinguishable
to be purged of the primary taint.
Wong Sun, 371 U.S. at 487-88,
9 L. Ed. 2d at 455 (citation and quotation marks
omitted) (emphasis supplied). The Supreme Court of the United States has deemed
the exclusionary rule “‘applicable only . . . where its deterrence benefits outweigh its
substantial social costs.’” Strieff, __ U.S. at __,
195 L. Ed. 2d at 407 (quoting Hudson
v. Michigan,
547 U. S. 586, 591,
165 L. Ed. 2d 56 (2006)).
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Opinion of the Court
“Suppression of evidence has always been our last resort, not our first
impulse.” Id. (ellipsis and citation omitted). Guided by these principles, the Supreme
Court of the United States has recognized several exceptions to the exclusionary rule.
First, the independent source doctrine allows trial courts
to admit evidence obtained in an unlawful search if officers
independently acquired it from a separate, independent
source. Second, the inevitable discovery doctrine allows for
the admission of evidence that would have been discovered
even without the unconstitutional source. Third, and at
issue here, is the attenuation doctrine: Evidence is
admissible when the connection between unconstitutional
police conduct and the evidence is remote or has been
interrupted by some intervening circumstance, so that the
interest protected by the constitutional guarantee that has
been violated would not be served by suppression of the
evidence obtained.
Id. (internal citations and quotation marks omitted) (emphasis supplied). We address
the third exception, and hold the State presented a sufficient intervening event to
break any causal chain between the presumably unlawful stop and the discovery of
the stolen handgun. See
id.
This Court can conceive only in the most rare instances “where [the] deterrence
benefits” of police conduct to suppress a firearm “outweigh[s] its substantial social
costs” of preventing a defendant from carrying a concealed, loaded, and stolen
firearm, pulling it at an identified law enforcement officer and pulling the trigger.
See Hudson, 547 U. S. at 591,
165 L. Ed. 2d at 64 (citation and quotation marks
omitted).
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Opinion of the Court
1. Preservation
We initially address the dissenting opinion’s notion that the State’s
“attenuation doctrine” argument must be dismissed, because the State failed to
present that specific argument to the trial court during the hearing on Defendant’s
motion to suppress.
Defendant argued before the trial court that Deputy Cranford stopped him
without reasonable suspicion of criminal activity, and Deputy Cranford’s order to
Defendant to lift his shirt, which revealed the handgun, constituted an unlawful
search. Our review of the transcript of the hearing and record shows the State did
not use the words “intervening circumstance” or “attenuation,” and argued to the trial
court that Deputy Cranford had reasonable suspicion to stop Defendant. The trial
court denied Defendant’s motion to dismiss on the basis that Deputy Cranford
possessed reasonable suspicion to stop Defendant.
We are bound by precedents to conclude this issue is properly before us. It is
well-settled in North Carolina that “[t]he question for review is whether the ruling of
the trial court was correct and not whether the reason given therefor is sound or
tenable. The crucial inquiry for this Court is admissibility and whether the ultimate
ruling was supported by the evidence.” State v. Bone, 354 N.C. 1, 8,
550 S.E.2d 482,
486 (2001) (quoting State v. Austin,
320 N.C. 276, 290,
357 S.E.2d 641, 650, cert.
denied,
484 U.S. 916,
98 L. Ed. 2d 224 (1987)) (emphasis supplied).
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STATE V. HESTER
Opinion of the Court
“‘[A] correct decision of a lower court will not be disturbed because a wrong or
insufficient or superfluous reason is assigned.’” State v. Dewalt, 190 N.C. App. 158,
165,
660 S.E.2d 111, 116 (quoting State v. Blackwell,
246 N.C. 642, 644,
99 S.E.2d
867, 869 (1957)), disc. review denied,
362 N.C. 684,
670 S.E.2d 906 (2008).
The burden on appeal rests upon Defendant to show the trial court’s ruling is
incorrect. See State v. Herring, 322 N.C. 733, 749,
370 S.E.2d 363, 373 (1988). The
occurrence of an intervening event, which purges the taint of an illegal stop, becomes
an issue only if the court finds the underlying illegality.
The intervening event does not present an arguable issue until the trial court
determines the defendant sustained his burden of persuasion on the illegality of the
police conduct. While the State could have requested the trial court’s consideration
of the attenuation issue as an alternative basis to admit the handgun, the State’s
failure to raise the attenuation issue at the hearing does not compel nor permit this
Court to summarily exclude the possibility that the trial court’s ruling was correct
under this or some other doctrine or rationale. See Bone, 354 N.C. at 8,
550 S.E.2d at
486; Blackwell,
246 N.C. at 644,
99 S.E.2d at 869.
The dissenting opinion notes the well-established trot that “the law does not
permit parties to swap horses between courts in order to get a better mount.” Weil v.
Herring, 207 N.C. 6, 10,
175 S.E. 836, 838 (1934); State v. Hunter,
305 N.C. 106, 112,
286 S.E.2d 535, 539 (1982). However, those cases an all other cited only apply to
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Opinion of the Court
instances where the party, whether Plaintiff, Defendant, or the State, is carrying the
burden on appeal to show error in the lower court’s ruling on appeal, and relies upon
a theory not presented before the lower court.
That circumstance is not before us here. We review the trial court’s ultimate
ruling for error, prejudice, and, in this case, solely for plain error. This Court is free
to and may uphold the trial court’s “ultimate ruling” based upon a theory not
presented below or even argued here. See Bone, 354 N.C. at 8,
550 S.E.2d at 486.
Our precedents clearly allow the party seeking to uphold the trial court’s
presumed-to-be-correct and “ultimate ruling” to, in fact, choose and run any horse to
race on appeal to sustain the legally correct conclusion of the order appealed from.
See id.; Austin, 320 N.C. at 290,
357 S.E.2d at 650; Blackwell,
246 N.C. at 644,
99
S.E.2d at 869.
The dissenting opinion relies upon this Court’s decision in State v. Gentile, 237
N.C. App. 304,
766 S.E.2d 349 (2014). Gentile is easily distinguishable from the
circumstances presented here. In Gentile, the State sought to overturn the trial
court’s ruling, which granted the defendant’s motion to suppress. This Court did not
allow the State, who bore the burden on appeal to show error in the trial court’s
presumably correct ruling, to “swap horses” on appeal. Id. at 310, 766 S.E.2d at 353-
54. For the same reason, this Court routinely dismisses arguments advanced by
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Opinion of the Court
defendants in criminal cases when the defendants attempt to mount and ride a
stronger or better, and possibly prevailing steed not run before the trial court.
Rule 10 of our Rules of Appellate Procedure governs the preservation of issues
during trial proceedings. N.C. R. App. P. 10. Our conclusion that the trial court did
not commit plain error to allow into evidence the stolen and loaded handgun does not
change, even if we were to presume the State failed to preserve the attenuation issue
for our review. Alternatively, we rule to invoke Rule 2 in this case to suspend the
dissent’s alleged requirements of Rule 10 to allow us to consider the State’s
attenuation argument.
To prevent manifest injustice to a party, or to expedite
decision in the public interest, either court of the appellate
division may, except as otherwise expressly provided by
these rules, suspend or vary the requirements or provisions
of any of these rules in a case pending before it upon
application of a party or upon its own initiative, and may
order proceedings in accordance with its directions.
N.C. R. App. P. 2.
This matter involves “exceptional circumstances [and] significant issues of
importance in the public interest,” the firing of a stolen and loaded weapon upon a
police officer by a private citizen illegally carrying a weapon. Defendant was not
prejudiced by the State’s failure to make the attenuation argument below. The State
presented evidence at the suppression hearing that Defendant fired upon the officer,
which Defendant had the opportunity to rebut.
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Opinion of the Court
The trial court specifically found that Defendant attempted to fire at the officer
when it rendered its ruling on Defendant’s motion to suppress. Further, we note
Defendant argues denial of his suppression motion on appeal, under plain error
review, even though he failed to properly preserve his objection when the evidence
was introduced and commented on multiple times at trial. Even if the State failed to
properly preserve the attenuation argument in the trial court for our review, the
circumstances in this case alternatively compel us to invoke Rule 2 and also review
the merits of the State’s arguments to uphold the trial court’s ultimate ruling in its
order. This issue is properly before us.
2. Commission of a Crime
To determine whether an intervening event is sufficient to break “the causal
chain between the unlawful stop and the discovery of the [evidence],” the Supreme
Court of the United States has delineated the following three factors: (1) “the
temporal proximity between the unconstitutional conduct and the discovery of
evidence to determine how closely the discovery of evidence followed the
unconstitutional search;” (2) “the presence of intervening circumstances;” and (3) “the
purpose and flagrancy of the official misconduct.” Strieff, __ U.S. at __, 195 L. Ed. 2d
at 408 (emphasis supplied). “In evaluating these factors, we assume without deciding
. . . that [the officer] lacked reasonable suspicion to initially stop [the defendant].”
Id.
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Opinion of the Court
Here, the evidence presented in the light most favorable to the State at the
suppression hearing showed after Deputy Cranford was warned Defendant might be
carrying a concealed weapon, noticed a bulge in Defendant’s waist, and asked
Defendant to lift his shirt, Defendant responded by: (1) raising his shirt; (2) pulling
a loaded and stolen handgun from his waistband; (3) pointing the gun at Deputy
Cranford; and (4) pulling the trigger.
Deputy Cranford testified the handgun failed to discharge when Defendant
pulled the trigger. Deputy Cranford’s testimony that Defendant committed the
independent criminal act in the presence of the officer breaks the causal chain
between the unconstitutional stop and the discovery of the evidence.
The facts of this case are directly on point with the United States Court of
Appeals for the Fourth Circuit’s decision in State v. Sprinkle, 106 F.3d 613 (4th Cir.
1997). In Sprinkle, the officers conducted an investigatory stop of the defendant
without reasonable suspicion of criminal activity.
Id. at 618-19. While an officer was
performing a pat-down of the defendant, the defendant began to run with the officer
in pursuit.
Id. at 616. The defendant pulled a handgun from the front of his pants
and continued to run with his gun still drawn and fired one shot toward the officer.
Id.
The Court explained: “If a suspect’s response to an illegal stop ‘is itself a new,
distinct crime, then the police constitutionally may arrest the [suspect] for that
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Opinion of the Court
crime.’” Id. at 619 (quoting United States v. Bailey,
691 F.2d 1009, 1017 (11th Cir.
1982)). “Because the arrest for the new, distinct crime is lawful, evidence seized in a
search incident to that lawful arrest is admissible.”
Id. (citing
Bailey at 1018).
Our federal courts have explained the reasons for holding that a new and
distinct crime, following an arguably illegal stop or search of the defendant, is a
sufficient intervening event to provide an independent basis for an arrest and/or the
admissibility of evidence uncovered during a search incident to that arrest.
(1) “a contrary rule would virtually immunize a defendant
from prosecution for all crimes he might commit that have
a sufficient causal connection to the police misconduct[,]”
Bailey, 691 F.2d at 1017-18; (2) the exclusionary rule does
not extend so far as to require suppression when the
discovery of the evidence can be traced to the separate
offense, see, e.g., Waupekenay, 973 F.2d at 1538; and (3) to
hold otherwise would encourage persons to resist the police
and create potentially violent and dangerous
confrontations. Id. Challenges to even unconstitutional
police searches must be made in the courts, not on the
street.
United States v. Crump, 62 F. Supp. 2d 560, 568 (D. Conn. 1999).
Like in Sprinkle, when Defendant “drew and fired his gun at [Deputy
Cranford], he committed a new crime that was distinct from any crime he might have
been suspected of at the time of the initial stop.” Sprinkle, 106 F.3d at 619. Deputy
Cranford had probable cause to arrest Defendant “because the new crime purged the
taint of the prior illegal stop[,] [a]nd the gun, which was in plain view at the scene of
the new crime, could be legitimately seized.”
Id. at 619-20.
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Opinion of the Court
Although Defendant’s commission of a separate and distinct criminal offense
is alone sufficient as an “intervening circumstance” to purge the taint of the presumed
illegal stop, we note the third factor set forth in Strieff also favors attenuation. “The
exclusionary rule exists to deter police misconduct. The third factor of the
attenuation doctrine reflects that rationale by favoring exclusion only when the police
misconduct is most in need of deterrence—that is, when it is purposeful or flagrant.”
Strieff, __ U.S. at __, 195 L. Ed. 2d at 409.
Here, Deputy Cranford explained that he and other officers knew Rockhill
Road to be a high crime area; while patrolling the area he turned onto Rockhill Road
and saw a vehicle parked partially onto the roadway; the vehicle drove away as
Deputy Cranford approached; Defendant “walk[ed] away from the vehicle;” Deputy
Cranford believed the car drove off and Defendant started to walk away in reaction
to his presence; and he decided to investigate “to make sure everything was okay”
due to the “area we were in.”
Like in Strieff, there was no indication that the stop of Defendant “was part of
any systemic or recurrent police misconduct.” Id. at __,
195 L. Ed. 2d 410. Even if the
initial stop was unjustified and unsupported by reasonable suspicion, it does not “rise
to a purposeful or flagrant violation of [Defendant’s] Fourth Amendment rights.”
Id.
at __,
195 L. Ed. 2d at 410. The trial court’s ultimate conclusion to allow admission
of the recovered, stolen, and loaded weapon was proper, and more so under plain error
- 21 -
STATE V. HESTER
Opinion of the Court
review, where Defendant failed to object to the admission of, or testimony concerning,
the handgun. Defendant has failed to carry his burden to exclude this evidence under
plain error review or the reverse the jury’s conviction.
V. Conclusion
The evidence of the stolen handgun was admissible because the presumably
unlawful stop was sufficiently attenuated by Defendant’s intervening commission of
a separate and distinct criminal offense of concealing and pointing a stolen and
loaded gun at Deputy Cranford and pulling the trigger. These events “broke the
causal chain between the [presumed] unconstitutional stop and the discovery of
evidence.” Id.
This issue is properly before us on plain error review of the trial court’s
“ultimate ruling” and conclusion to deny Defendant’s motion to suppress. See Bone,
354 N.C. at 8,
550 S.E.2d at 486 (stating this Court determines “admissibility and
whether the ultimate ruling was supported by the evidence” (emphasis supplied)).
Furthermore, as was true in Strieff, “there is no evidence that [the] stop reflected
flagrantly unlawful police misconduct.”
Id.
The trial court properly denied Defendant’s motion to suppress. Defendant has
failed in his burden to show error, much less plain error, in the trial court’s ultimate
ruling to allow the testimony concerning and the weapon itself to be admitted. It is
so ordered.
- 22 -
STATE V. HESTER
Opinion of the Court
NO PLAIN ERROR.
Judge DILLON concurs with separate opinion.
Chief Judge McGEE dissents with separate opinion.
-2-
No. COA16-1120 – STATE v. HESTER
DILLON, Judge, concurring.
I concur but write separately to address the dissent’s issue with the State’s
failure to preserve its appellate argument.
Defendant was convicted of possessing a firearm which was discovered during
a stop. At the suppression hearing below, the State’s sole argument was that the stop
itself was lawful, and, therefore, the firearm was admissible.
During the suppression hearing, the State also offered evidence, which the trial
court found credible, that during the stop Defendant pulled the concealed firearm,
pointed it at the officer and pulled the trigger. I agree with the majority that this
intervening event makes the gun admissible. Though the State failed to make this
“winning” argument at the suppression hearing, the trial court denied Defendant’s
motion.
The dissent is based, in large part, on a view that the State, as the appellee,
should be prohibited just like Defendant, as the appellant, from making any legal
argument on appeal that it failed to make at the suppression hearing. Indeed, it is
axiomatic that an appellant cannot “swap horses” by making a new argument on
appeal that was not made before the trial court in order to get a “better mount.” Weil
v. Herring, 207 N.C. 6, 10,
175 S.E. 836, 838 (1934).
Rule 10 of our appellate rules allows an appellee to propose “alternative bas[e]s
in law for supporting the judgment” in addition to the basis relied upon by the trial
STATE V. HESTER
DILLON, J., concurring
court. However, Rule 10 states that such alternative bases that the appellee desires
to raise on appeal must have been “properly preserved[.]” N.C. R. App. P. 10(c).
So based on Rule 10 one could argue that the State, as the appellee, should be
limited, just like Defendant-appellant, to the arguments it made at the suppression
hearing. Had the State lost, the State (as the appellant) would be allowed on appeal
to make only the losing argument that it made before the trial court. And, therefore,
the State should not be allowed to make the winning argument in this case simply
because it won at the trial court based on a losing argument. That is, the State did
not “properly preserve” (as required by Rule 10) the winning argument. See Higgins
v. Simmons, 324 N.C. 100, 103,
376 S.E.2d 449, 452 (1989) (“Because a contention not
made in the court below may not be raised for the first time on appeal, the . . .
contention [by the party seeking to raise that issue on appeal] was no properly
presented to the Court of Appeals for review[.]”)
However, one could argue that an appellate court may consider any basis which
supports the trial court’s correct result, even if the basis was not relied upon by the
trial court or argued by the parties. This view is based on Supreme Court’s
jurisprudence suggesting that our role as an appellate court is simply to determine
whether the trial court got it right based on its findings, even if the reasoning may be
faulty. See, e.g., State v. Bone, 354 N.C. 1, 8,
550 S.E.2d at 482, 486 (2001) (“The
crucial inquiry for this Court is admissibility and whether the ultimate ruling was
2
STATE V. HESTER
DILLON, J., concurring
supported by the evidence.”) And here, the State did present evidence, which the trial
court did find credible, to support the winning argument, namely the trial court found
that Defendant attempted to shoot the officer. Based on this argument, we should
simply affirm the order of the trial court.
But presuming that Rule 10 does prevent the State from arguing (and our
Court from considering) the “winning” argument, I concur with the majority’s
invocation of Rule 2 to consider the winning argument. I believe that this matter
involves “exceptional circumstance [and] significant issues of importance in the
public interest” and in my discretion, I conclude that the invocation of Rule 2 is
necessary “to prevent injustice.” State v. Campbell, 2017 N.C. LEXIS 400, *6-7 (June
9, 2017). It is a matter of public interest that private citizens illegally carrying
concealed weapons not be excused from assaulting an officer simply because the
officer may have erred in determining that reasonable suspicion existed to justify a
stop, where the officer was not otherwise assaultive in his behavior. I note that
Defendant is not prejudiced by the State’s failure to make the winning argument at
the suppression hearing. Indeed, the State put on evidence at the suppression
hearing that Defendant assaulted the officer during the stop, and Defendant had the
opportunity to rebut the State’s evidence regarding Defendant’s assaultive behavior.
And there is no winning argument which Defendant’s counsel could have made to
3
STATE V. HESTER
DILLON, J., concurring
justify the exclusion of the firearm where it was found that Defendant used it to
assault the officer.
Therefore, I concur.
2
No. COA16-1120 – State v. Hester
McGEE, Chief Judge, dissenting.
Defendant asks this Court to reverse the trial court’s denial of his motion to
suppress. Defendant argues Deputy Cranford did not have reasonable suspicion to
stop him when the deputy observed him walking on the side of the road in
Wilmington, North Carolina. Rather than address the sole issue presented by
Defendant in this appeal, the majority and the concurrence choose to reach, and
ultimately credit, a novel legal theory of admissibility advanced by the State that was
never raised or considered in the trial court.
If the State’s argument had been preserved, I would agree with the majority –
with some reservations, outlined below – that Deputy Cranford’s stop of Defendant
was sufficiently attenuated from the discovery of the firearm under the Supreme
Court of the United States’ holding in Utah v. Strieff, ___ U.S. ___, 195 L. Ed. 2d 400
(2016). However, the State failed to preserve its attenuation argument, and I
respectfully dissent from the majority’s decision to reach and credit that argument.
The rule the majority crafts is inconsistent with normal rules of preservation.
This Court regularly refuses to consider arguments presented by a criminal
defendant for the first time on appeal, reasoning that the argument has been waived
by the defendant’s failure to first make the argument to the trial court. There is no
reason why this rule should operate differently for the State and, consistent with
binding precedent, I would hold the State’s failure to raise its attenuation argument
STATE V. HESTER
McGEE, C.J., dissenting
in the trial court warrants dismissal of that argument here. Deputy Cranford’s stop
of Defendant was unconstitutional, and I would therefore reverse the trial court’s
denial of Defendant’s motion to suppress and vacate his conviction.
I. Reasonable Suspicion to Stop Defendant
I first address whether there was a sufficient basis for Deputy Cranford to stop
Defendant. The majority does not consider whether Deputy Cranford’s conduct was
unconstitutional, and instead proceeded directly to a discussion of whether the
unconstitutional stop, if it existed, was attenuated from the discovery of the evidence
the Defendant moved to suppress. However, consideration of the constitutionality of
the stop is useful, since a determination that the stop was lawful would conclude our
inquiry in this case. Also, even if the stop was unlawful, being able to identify
precisely what conduct of Deputy Cranford was unjustified is valuable in the Strieff
attenuation analysis.
The Fourth Amendment to the United States Constitution protects against
unreasonable searches and seizures. See U.S. CONST. AMEND. IV. The United States
Supreme Court has held that “[a]n investigatory stop is permissible under the Fourth
Amendment if supported by reasonable suspicion.” Ornelas v. United States, 517 U.S.
690, 693,
134 L. Ed. 2d 911, 917 (1996) (citing Terry v. Ohio,
392 U.S. 1,
20 L. Ed. 2d
889,
88 S. Ct. 1868 (1968)). Reasonable suspicion is “a particularized and objective
2
STATE V. HESTER
McGEE, C.J., dissenting
basis for suspecting the particular person stopped” has violated the law. Navarette
v. California, 572 U.S. ___, ___,
188 L. Ed. 2d 680, 686 (2014).
As this Court has held,
the legal evaluation of a police officer’s reasonable
suspicion determination must be grounded in a pragmatic
approach. Reasonable suspicion is a nontechnical
conception that deals with the factual and practical
considerations of everyday life on which reasonable and
prudent men, not legal technicians, act. Our nation’s
highest court has acknowledged that the concept of
reasonable suspicion is somewhat abstract and has
deliberately avoided reducing it to a neat set of legal rules.
As such, common sense and ordinary human experience
must govern over rigid criteria.
State v. Mangum, ___ N.C. App. ___, ___, 795 S.E.2d 106, 118 (2016) (citations,
quotation marks, and brackets omitted). In order to meet the reasonable suspicion
threshold, “[t]he officer, of course, must be able to articulate something more than an
inchoate and unparticularized suspicion or hunch.” State v. Knudsen,
229 N.C. App.
271, 284,
747 S.E.2d 641, 650 (2013) (quotation omitted). “An officer has reasonable
suspicion if a reasonable, cautious officer, guided by his experience and training,
would believe that criminal activity is afoot based on specific and articulable facts, as
well as the rational inferences from those facts.” State v. Williams,
366 N.C. 110, 116,
726 S.E.2d 161, 167 (2012). As a reviewing court, we “must consider the totality of
the circumstances — the whole picture.”
Id.
In the present case, Deputy Cranford observed Defendant standing on the side
of the road in an area known for high crime. Defendant was talking to an unknown
3
STATE V. HESTER
McGEE, C.J., dissenting
person in a vehicle. Deputy Cranford testified that the vehicle was parked “partially
in the road” with its brake lights engaged. Shortly after Deputy Cranford arrived in
his police cruiser and stopped about twenty-five to fifty yards from the vehicle, the
vehicle drove away at a normal speed and in a normal fashion. Deputy Cranford
believed the driver of the vehicle “recognized [him] as a deputy” and drove off in an
effort to avoid him. Deputy Cranford did not check the license plate of the vehicle,
did not follow the vehicle, and did not know if the driver or any occupants of the
vehicle were involved in any criminal activity. After the vehicle left, Defendant
walked down the road with a cellphone in his hands.
Deputy Cranford testified he did not know if Defendant had exited the vehicle,
that nothing about Defendant’s appearance drew his attention, and that he did not
know who Defendant was or what Defendant was doing. Deputy Cranford deemed
the vehicle driving away as “suspicious” and testified it was his belief that
Defendant’s walking away “was in reaction to [Deputy Cranford’s] presence as well[.]”
On cross-examination, Deputy Cranford admitted that “no matter what [Defendant]
did walking away from [the vehicle], [he] thought that was suspicious.” Accordingly,
Deputy Cranford drove past Defendant, turned around, and activated his blue lights
to effectuate a stop. Deputy Cranford characterized Defendant as being “polite and
cooperative” when he was first stopped. At the suppression hearing, the following
exchange occurred between Deputy Cranford and the prosecutor:
4
STATE V. HESTER
McGEE, C.J., dissenting
[Prosecutor:] So what were your particularized concerns?
Why did you stop to talk to [Defendant]?
[Deputy Cranford:] Due to the area that we were in and the
reason when I got close the car pulled off. I saw
[Defendant] walking away. I didn’t know if he had gotten
out of the [vehicle], if a -- if he was lost, if a drug deal had
just happened, or what was going on. So I wanted to get
out and investigate and make sure everything was okay.
As the concurrence and I recognize, the totality of the circumstances of this
case does not rise to the minimal level of objective justification required for a
reasonable articulable suspicion under the Fourth Amendment. Deputy Cranford
observed Defendant talking to someone in a vehicle that was haphazardly parked on
the side of the road in a high crime area. According to Deputy Cranford’s own
testimony, he did not recognize Defendant, did not know if Defendant had been in the
“suspicious” vehicle, and nothing about Defendant’s actions or appearance drew
Deputy Cranford’s attention. The vehicle drove away at a normal speed and in a
normal fashion, and Defendant merely walked down the road. Nevertheless, Deputy
Cranford thought it “suspicious” that Defendant had spoken to someone in a vehicle.
Rather than following the vehicle, Deputy Cranford chose to activate his blue lights
and effectuate a stop of Defendant.
Deputy Cranford had, at most, an inchoate and unparticularized hunch that
criminal activity was afoot. Therefore, Defendant’s actions did not give rise to the
minimal level of objective justification required by the Fourth Amendment. See, e.g.,
Knudsen, 229 N.C. App. at 285,
747 S.E.2d at 651.
5
STATE V. HESTER
McGEE, C.J., dissenting
II. Merits of the Majority’s Attenuation Analysis
As the majority correctly notes, evidence discovered as a result of an illegal
search or seizure is generally excluded at trial. See Wong Sun v. United States, 371
U.S. 471, 487-88,
9 L. Ed. 2d 441, 455 (1963). Despite this general principle, there
are several exceptions to the exclusionary rule, including the one at issue here: the
attenuation doctrine. See generally Utah v. Strieff, ___ U.S. ___, ___,
195 L. Ed. 2d
400, 407 (2016). Whether an intervening event is sufficient to “break the causal chain
between the unlawful stop and the discovery of” the evidence and is therefore
“attenuated[,]” rests on three factors as noted by the majority: (1) “the temporal
proximity between the unconstitutional conduct and the discovery of evidence to
determine how closely the discovery of evidence followed the unconstitutional
search;” (2) “the presence of intervening circumstances;” and (3) “the purpose and
flagrancy of the official misconduct.” Strieff, ___ U.S. at ___,
195 L. Ed. 2d at 408.
Had the State preserved its attenuation argument notwithstanding its failure to raise
it at trial, which I will discuss later, I would generally agree with the majority that
the facts of this case favor attenuation. However, I have the following reservations
with the majority’s application of Strieff’s three factors.
(A) Temporal Proximity Between the Stop and the Discovery of Evidence
The first step of Strieff analyzes the “temporal proximity between the
unconstitutional conduct and the discovery of evidence to determine how closely the
6
STATE V. HESTER
McGEE, C.J., dissenting
discovery of evidence followed the unconstitutional search.” Id. The majority does
not analyze this factor at all, but rather proceeds directly to the second factor in the
analysis. I believe that an analysis of whether an illegal stop is sufficiently
attenuated from the discovery of some evidence is properly conducted by considering
all three factors the Supreme Court of the United States identified as bearing on
whether attenuation is present.
The discovery of the firearm in the present case occurred in extremely close
proximity in time to the unconstitutional stop. After being seized, Deputy Cranford
spoke for some time with Defendant, contacted dispatch, searched for outstanding
warrants, and then again spoke with Defendant. All of these actions were part of the
unconstitutional stop, and were undertaken while the stop was ongoing. Therefore,
the discovery of the firearm, which occurred when Defendant pulled the firearm from
his waistband and attempted to discharge it, occurred seconds after the
unconstitutional stop. I would find that this factor favors attenuation.
(B) Intervening Circumstances
The second factor to consider in an attenuation analysis is whether there were
sufficient intervening circumstances between the unconstitutional conduct and the
discovery of the evidence. Strieff, ___ U.S. at ___, 195 L. Ed. 2d at 408. Like the
majority, I believe that Deputy Cranford’s observation of a new criminal act
perpetrated by Defendant during the course of the stop serves as an intervening
7
STATE V. HESTER
McGEE, C.J., dissenting
circumstance that strongly favors attenuation. At the suppression hearing, as the
majority notes, Deputy Cranford testified that during the stop he asked Defendant to
lift up his shirt and Defendant responded by raising his shirt, pulling a firearm from
his waistband, pointing the gun at Deputy Cranford, and pulling the trigger.
According to Deputy Cranford’s testimony, the gun did not go off when the trigger
was pulled.1
Deputy Cranford’s testimony that Defendant had committed the criminal act
of attempted first-degree murder breaks the causal chain between the
unconstitutional stop and the discovery of the evidence, and is entirely unconnected
from the stop. However, I would not go so far as to say, as the majority does, that the
“commission of a separate and distinct criminal offense is alone sufficient . . . to purge
the taint of the . . . illegal stop[.]” (emphasis added). In the present case, it is sufficient
to hold that the intervening criminal act perpetrated by Defendant strongly favors
attenuation and, along with the third factor (discussed below), would attenuate
Deputy Cranford’s unconstitutional stop from the discovery of the firearm. I would
leave a broader holding — that the commission of a separate and distinct criminal
offense will always be decisive — to an appropriate future case.
(C) The Purpose and Flagrancy of the Official Misconduct
1 The jury apparently did not credit Deputy Cranford’s testimony on this point, finding
Defendant not guilty of attempted first-degree murder. However, in reviewing a trial court’s ruling
on a motion to suppress, we examine the evidence in the light most favorable to the State. See State
v. Hunter, 208 N.C. App. 506, 509,
703 S.E.2d 776, 779 (2010).
8
STATE V. HESTER
McGEE, C.J., dissenting
The final Strieff factor inquires into the purpose and flagrancy of the police
misconduct. As the majority recognizes, “[t]he exclusionary rule exists to deter police
conduct. The third factor of the attenuation doctrine reflects that rationale by
favoring exclusion only when the police misconduct is most in need of deterrence –
that is, when it is purposeful or flagrant.” Strieff, ___ U.S. at ___, 95 L. Ed. 2d at 409
Like the majority, I would find that the third factor favors attenuation.
As the Supreme Court of the United States has held, there must be something
more than a lack of reasonable suspicion in order for a finding of flagrancy to be
appropriate. See Strieff, ___ U.S. at ___, 195 L. Ed. 2d at 410 (“For [a] violation to be
flagrant, more severe police misconduct is required than the mere absence of proper
cause for the seizure.”). While Deputy Cranford’s conduct in stopping Defendant was
without reasonable suspicion, his errors and unconstitutional conduct do not rise to
a “purposeful or flagrant violation of [Defendant’s] Fourth Amendment rights,” nor is
there any indication on this record that the stop “was part of any systemic or
recurrent police misconduct.”
Id.
III. Preservation of Attenuation Argument
Had the State raised and argued to the trial court its theory that Deputy
Cranford’s stop of Defendant was sufficiently attenuated from the discovery of the
firearm, my disagreement with the majority would end here. However, the State
failed to argue its attenuation argument in the trial court, and this Court should not
9
STATE V. HESTER
McGEE, C.J., dissenting
address it in the first instance. At trial, Defendant moved to suppress the evidence
found in the search, arguing that Deputy Cranford’s stop violated his rights under
the Fourth Amendment to the United States Constitution. At the hearing on
Defendant’s motion, the State presented evidence from Deputy Cranford and his
superior officer. Thereafter, the State defended the constitutionality of the stop solely
on the grounds that Deputy Cranford possessed reasonable suspicion to stop
Defendant. The trial court ruled exclusively on that basis, and found that Deputy
Cranford possessed reasonable suspicion to stop Defendant. The attenuation doctrine
was never raised by the State and, as the majority concedes, the words “attenuation”
and “intervening circumstance” were never spoken at the suppression hearing.
As the majority notes, the question for this Court when reviewing a trial court’s
ruling on a motion to suppress “is whether the ruling of the trial court was correct
and not whether the reason given therefor [was] sound or tenable. The crucial inquiry
for this Court is admissibility and whether the ultimate ruling was supported by the
evidence.” State v. Bone, 354 N.C. 1, 8,
550 S.E.2d 482, 486 (2001) (emphasis added).
The majority reads the second clause, italicized above, from Bone’s holding. When
considering the admissibility of the evidence, we must consider whether the “ultimate
ruling” of the trial court was supported by the evidence. The “ultimate ruling” of the
trial court in the present case was that the motion to suppress should be denied
10
STATE V. HESTER
McGEE, C.J., dissenting
because Deputy Cranford had reasonable suspicion to stop Defendant. As discussed
above, this ruling was incorrect.
We should not suggest that the trial court’s “ultimate ruling” denying
Defendant’s motion to suppress – because Deputy Cranford had reasonable suspicion
to stop Defendant – also contained an unwritten, but implied, alternative ruling that,
if Deputy Cranford’s stop was unconstitutional, the unconstitutional stop was
sufficiently attenuated from the discovery of the evidence so as to be admissible. The
trial court never ruled on whether the unconstitutional stop was sufficiently
attenuated from the discovery of the evidence, because attenuation was never raised
by the State.
The majority suggests that the “occurrence of an intervening event” only
“becomes an issue” if the trial court “finds the underlying illegality,” and that an
“intervening event” is not an “arguable issue” until the defendant “sustain[s] his
burden of persuasion on the illegality of the police conduct.” I disagree. The legality
of Deputy Cranford’s stop of Defendant and the admissibility of the firearm found on
Defendant was at issue. In fact, it was the only issue being litigated in Defendant’s
motion to suppress. The State argued, uninterrupted and at length, in opposition to
Defendant’s motion to suppress. Nothing limited the State from arguing an
alternative position, such as attenuation, the position it now raises in this Court in
the first instance. Litigants make alternative arguments in support of legal positions
11
STATE V. HESTER
McGEE, C.J., dissenting
in our trial courts on a daily basis, and waive the arguments they fail to make. If the
majority were correct, the State would only raise its “intervening event” theory2 after
the trial court had determined that the stop was not supported by reasonable
suspicion. But at that point, it would have been too late – the trial court would have
already ruled on and granted Defendant’s motion to suppress.
The State had ample opportunity and compelling reason to raise its
attenuation argument as an alternative to its argument that the stop was supported
by a reasonable suspicion. Although Strieff had not yet been decided by the Supreme
Court of the United States, Strieff did not change governing law; it only supplemented
existing law by applying the factors set out in Brown v. Illinois, 422 U.S. 590,
45 L.
Ed. 2d 416 (1975). The attenuation doctrine is firmly rooted in North Carolina law,
and has been considered and applied in North Carolina Supreme Court cases decades
old. See, e.g., State v. Allen,
332 N.C. 123, 127-28,
418 S.E.2d 225, 228-29 (1992);
State v. Freeman,
307 N.C. 357, 359-60,
298 S.E.2d 331, 332-33 (1983). If the State
had wished to argue an alternative position, it was required to do so in the trial court
in the first instance. The State clearly knows how to make such an alternative
argument, as they did so in their brief to this Court in this case.
2I note that an “intervening event,” or intervening circumstance, is only one of the three factors
used to determine if the discovery of some evidence is sufficiently attenuated from unconstitutional
conduct. See Strieff, ___ U.S. at ___, 195 L. Ed. 2d at 408. For ease of reading, I employ the
nomenclature employed by the majority.
12
STATE V. HESTER
McGEE, C.J., dissenting
This Court confronted a similar situation in State v. Gentile, 237 N.C. App. 304,
766 S.E.2d 349 (2014). In Gentile, the trial court granted the defendant’s motion to
suppress evidence found in a search of his home, holding that when the officers
noticed the smell of marijuana emanating from the residence, they “were not in a
place in which they had a right to be.” Gentile, 237 N.C. App. at 308, 766 S.E.2d at
352. On appeal, this Court agreed with the trial court that the officers were in a place
they had “no legal right to be” when they smelled the marijuana, which was the basis
for the search. Id. at 310, 766 S.E.2d at 353. After so holding, the trial court turned
to the State’s belated argument that
even if the detectives’ entry onto constitutionally protected
areas of defendant’s property was unlawful, the trial court
erred by granting the motion to suppress because it failed
to examine the remaining portions of the search warrant
affidavit to determine if the warrant was still supported by
probable cause, absent the odor of marijuana.
Id. Confronted with this argument, this Court held that the State had “failed to
preserve this issue on appeal” because “the State never argued before the trial court
that the motion to suppress should be denied because even if the detectives had no
legal right to be on the driveway when they smelled the marijuana, the remaining
portions of the search warrant were nevertheless sufficient to establish probable
cause.” Id. at 310, 766 S.E.2d at 353-54. Accordingly, this Court dismissed the State’s
alternative argument as unpreserved. Id.
13
STATE V. HESTER
McGEE, C.J., dissenting
The circumstances of the present case are no different from the ones confronted
by this Court in Gentile. In the present case, as in Gentile, the State failed to argue
to the trial court its alternative theory as to why Defendant’s motion to suppress
should be denied. Since “the State never argued before the trial court that the motion
to suppress should be denied because” the discovery of the evidence was sufficiently
attenuated from Deputy Cranford’s unconstitutional conduct, the State “failed to
preserve this issue on appeal.” Id. at 310, 766 S.E.2d at 353. This Court is bound by
Gentile’s reasoning. In re Civil Penalty, 324 N.C. 373, 384,
379 S.E.2d 30, 36 (1989).
The majority suggests that Gentile is “easily distinguishable” from the present
case because in Gentile “the State sought to overturn the trial court’s ruling, which
granted the defendant’s motion to suppress,” while in this case the State seeks to
defend the trial court’s denial of Defendant’s motion to suppress. Respectfully, I
disagree with the majority’s attempt to distinguish Gentile, and note it creates a
needlessly complicated and unfair rule of preservation. Under the majority’s theory,
in Gentile, all the State would have had to do to be able to “swap horses” would have
been to convince the trial court that their incorrect theory – the police were in a place
in which they had a lawful right to be when they smelled the marijuana – was in fact
correct. In that circumstance, the State would have been free to “swap” that theory
for any other theory on appeal – including the one we refused to consider because it
was not properly preserved – while the defendant would have been relegated to those
14
STATE V. HESTER
McGEE, C.J., dissenting
theories it preserved by arguing them to the trial court. In other words, whether a
litigant is bound by the arguments it makes in the trial court depends only upon
whether the arguments were accepted by the trial court, regardless of whether the
trial court was correct. If the State loses a motion to suppress – i.e. a defendant’s
motion to suppress is granted – then the State is forever wedded to whatever theory
it presented at trial. If, however, the defendant’s motion to suppress is denied – on
an incorrect or otherwise untenable theory – the State may thereafter argue any legal
theory it wishes in order to preserve its favorable ruling. This is, in my view, an
untenable theory of preservation.
This Court has held, time and again, that when a “defendant presents a
different theory [on appeal] to support his motion to dismiss than that he presented
at trial, this assignment of error is waived.” State v. Euceda-Valle, 182 N.C. App.
268, 272,
641 S.E.2d 858, 862 (2007) (emphasis added) (citation omitted); see also
State v. Chapman, ___ N.C. App. ___,
781 S.E.2d 320, 330 (2016) (“Because [the
defendant] has failed to properly preserve the specific argument she now seeks to make
on appeal regarding the basis upon which her motion to dismiss should have been
granted, we decline to reach the merits of her argument.” (emphasis added) (citations
omitted)). It appears arbitrary to declare some arguments preserved and others
unpreserved, not by whether those arguments were raised at trial, but rather simply
15
STATE V. HESTER
McGEE, C.J., dissenting
by virtue of who obtained a favorable ruling by the trial court, regardless of whether
that ruling was correct.
Ironically, in the present case the majority would agree that the State could
not raise its attenuation argument in this Court, if only the trial court had gotten the
law right. If the trial court had correctly determined Officer Cranford’s stop of
Defendant violated the Fourth Amendment, Defendant would be able to defend that
ruling under any theory he wished on appeal, while the State would be confined to
that theory raised in the trial court. Since the State inexplicably did not raise the
attenuation doctrine in the trial court, it would be barred from doing so in this Court
in the first instance.
The North Carolina Rules of Appellate Procedure were designed to further
“fundamental fairness and the predictable operation of the courts[.]” State v. Hart,
361 N.C. 309, 317,
644 S.E.2d 201, 206 (2007). On appeal to this Court, Defendant
focused the arguments in his principal brief exclusively on whether Deputy Cranford
had reasonable suspicion to seize him under the Fourth Amendment. Defendant did
so for good reason: the State’s argument urging the trial court to deny his motion to
suppress, and the trial court’s ultimate ruling on that motion to suppress, were
exclusively focused on whether reasonable suspicion existed for the stop. After
Defendant filed his brief in this Court, though, the ground shifted beneath his feet;
the State filed a brief waiving any argument that the stop was supported by
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McGEE, C.J., dissenting
reasonable suspicion and moved forward exclusively on the theory that the presence
or absence of reasonable suspicion did not matter because the stop was attenuated
from the discovery of the evidence.
Upon receiving the State’s brief, Defendant was forced to litigate that new
issue, never before considered or passed upon within the context of the present case,
in a reply brief. To avoid being blindsided, should a defendant now make arguments
on appeal, and then proceed to preemptively research and brief any alternative bases
the State may conceivably argue to defend the trial court’s ruling? Perhaps not, lest
a defendant give the State any ideas about new theories of admissibility.
Preservation and the appellate rules are designed to prevent this circumstance.
Our Supreme Court has held that “the law does not permit parties to swap
horses between courts in order to get a better mount [on appeal].” Weil v. Herring,
207 N.C. 6, 10,
175 S.E. 836, 838 (1934); see also State v. Sharpe,
344 N.C. 190, 194,
473 S.E.2d 3, 5 (1996) (“This Court has long held that where a theory argued on
appeal was not raised before the trial court, the law does not permit parties to swap
horses between courts in order to get a better mount in the Supreme Court.” (citation
omitted)). The majority suggests this rule only applies “to instances where the
party. . . carrying the burden on appeal to show error in the lower court’s ruling on
appeal, and relies upon a theory not presented before the lower court.” But the
Supreme Court in Weil did not equivocate: it held that a party – not just an appellant,
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McGEE, C.J., dissenting
but a party – may not “swap horses” between courts to gain a better mount on appeal.
Weil, 207 N.C. at 10,
175 S.E. at 838. Applying this rule to both appellants and
appellees is sensible, as it ensures fairness and requires litigants to present legal
arguments they believe to be meritorious to the trial court before presenting them to
an appellate court.
In faithfully following our Supreme Court’s precedent, along with that
precedent’s necessary implications, our Supreme Court’s holdings in Wiel and Sharpe
decide this case in Defendant’s favor. It is undisputed that the State never argued
its attenuation theory in the trial court. The State proceeded only on the theory that
Deputy Cranford’s stop of Defendant was permissible because reasonable suspicion
was present, and in denying Defendant’s motion to suppress the trial court only ruled
on that basis. This precludes the State from raising its attenuation argument on
appeal in the first instance.
This Court regularly dismisses arguments first advanced by defendants on
appeal in criminal cases, reasoning that those arguments have been waived due to
the defendants’ failure to raise them in the trial court. See, e.g., State v. Mastor, ___
N.C. App. ___, ___, 777 S.E.2d 516, 521 (2015) (dismissing a defendant’s argument
where the defendant did not “raise or argue” the objection in the trial court, reasoning
that the defendant “failed to preserve [the] issue for appellate review”). That rule
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McGEE, C.J., dissenting
should operate no differently for the State.3 Attenuation is a theory of admissibility
wholly independent from whether reasonable suspicion existed for a stop. I would
hold that if the State wishes to argue alternative legal theories of admissibility, the
onus is on the State to make those arguments to the trial court. Because Deputy
Cranford’s stop of Defendant was unconstitutional and the State failed to preserve
its attenuation argument, I would reverse the trial court’s denial of Defendant’s
motion to suppress and vacate his conviction. I dissent from the majority’s decision
to reach the State’s belated attenuation argument.
Invocation of N.C.R. App. P. Rule 2
I also dissent from the majority’s decision to “rule to invoke Rule 2 [of the North
Carolina Rules of Appellate Procedure] in this case[.]” The majority concludes that,
even if the State’s argument regarding attenuation was not preserved, this case is a
proper one for this Court to dispense with the rules of appellate procedure by invoking
N.C.R. App. P. 2. I disagree. As our Supreme Court has repeatedly stated: “Rule 2
relates to the residual power of our appellate courts to consider, in exceptional
circumstances, significant issues of importance in the public interest or to prevent
injustice which appears manifest to the Court and only in such instances.” State v.
Hart, 361 N.C. 309, 315-16,
644 S.E.2d 201, 205 (2007) (citation omitted). “This
3 Though not dispositive, the United States Court of Appeals for the Tenth Circuit has
similarly held that attenuation arguments not raised in the trial court are waived on appeal. See
United States v. Hernandez, 847 F.3d 1257, 1261-62 (10th Cir. 2017) (holding the government waived
its attenuation argument by not making that argument to the district court).
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McGEE, C.J., dissenting
assessment – whether a particular case is one of the rare ‘instances’ appropriate for
Rule 2 review – must necessarily be made in light of the specific circumstances of
individual cases and parties, such as whether substantial rights of an appellant are
affected.” State v. Campbell, ___ N.C. ___, ___, ___ S.E.2d ___, ___, 2017 N.C. LEXIS
400, at *7 (2017) (citations omitted).
The present case does not implicate “significant issues of importance in the
public interest.” Defendant in this case was convicted of a single offense, possession
of a stolen firearm, which is punishable as a class H felony. See N.C. Gen. Stat. § 14-
71.1 (2015). I do not see the merit in the majority’s apparent assertion that any
shooting or attempted shooting of a police officer – the only fact the majority
propounds as a reason for invoking Rule 2 – is a de facto reason to dispense with the
rules of appellate procedure. Such a rule would absolve the State of its need to follow
normal preservation rules in any case that allegedly involved the shooting (or, as
here, an alleged attempted shooting) of an officer, and would come close to the
creation of an “automatic right to review via Rule 2” for police shooting cases, a type
of rule our Supreme Court very recently rejected. See Campbell, ___ N.C. at ___, ___
S.E.2d at ___,
2017 N.C. LEXIS 400, at *7 (“In simple terms, precedent cannot create
an automatic right to review via Rule 2. Instead, whether an appellant has
demonstrated that his matter is the rare case meriting suspension of our appellate
rules is always a discretionary determination to be made on a case-by-case basis.”).
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McGEE, C.J., dissenting
The present case, in my view, also fails to implicate any manifest injustice. Rather,
the State would only be forced to proceed on appeal on those legal theories that it
raised in the trial court.
IV. Conclusion
Due to a lack of reasonable suspicion, Deputy Cranford’s stop of Defendant
violated Defendant’s right to be free from unreasonable searches and seizures under
the Fourth Amendment. The State does not contest this fact, and on appeal only
defends the stop by arguing that the discovery of the evidence was sufficiently
attenuated from Deputy Cranford’s unconstitutional conduct. Had attenuation been
raised and preserved by the State in the trial court, I agree with the majority that
the discovery of the firearm would have been sufficiently attenuated from Deputy
Cranford’s unconstitutional stop of Defendant.
But the State failed to raise its attenuation argument before the trial court,
and cannot raise it here for the first time. I dissent from the majority’s and the
concurrence’s decision to address the State’s belated attenuation argument. The
preservation rule the majority crafts is untenable, and by faithfully applying
precedent from this Court and our Supreme Court, I would dismiss the State’s belated
argument, reverse the trial court’s denial of Defendant’s motion to suppress, and
vacate Defendant’s conviction. I further dissent from the majority’s and the
concurrence’s alternative decision to invoke N.C.R. App. P. 2.
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22
