State v. Hester, 803 S.E.2d 8

Background

Deputy Cranford, patrolling a high-crime area (Rockhill Road), observed a vehicle partially parked in the travel lane; as he approached the vehicle drove off and Darius Hester (Defendant) walked away on foot.
Cranford turned around, activated lights, stopped Defendant, asked for ID and whether he had weapons; dispatch reported Defendant was "known to carry" based on prior charge.
Cranford observed a bulge, asked Defendant to lift his shirt; Defendant lifted it, produced a loaded handgun, pointed it at Cranford and pulled the trigger (weapon did not discharge).
Cranford fired, Defendant fled, was shot in the shoulder, dropped the gun; the recovered handgun was loaded and later identified as stolen.
Defendant was tried for attempted murder and possession of a stolen firearm; acquitted of attempted murder but convicted of possessing the stolen firearm; he appealed the denial of his suppression motion.
Trial-level preservation: Defendant moved to suppress pretrial; at trial he did not object to admission of the gun, so the appeal proceeds on plain-error review. The State did not advance attenuation at the suppression hearing but did on appeal.

Issues

Issue	State's Argument	Hester's Argument	Held
Was the investigatory stop supported by reasonable suspicion?	Cranford had reasonable suspicion based on (1) high-crime area, (2) vehicle pulling away as officer approached, and (3) shared officer intelligence about area.	The stop lacked particularized, articulable facts — merely talking to someone in a parked car and walking away is an unparticularized hunch.	Court assumed arguendo lack of reasonable suspicion for attenuation analysis but upheld suppression denial on alternate grounds.
Was the handgun excluded as fruit of an unlawful stop, or was it admissible due to an intervening event (attenuation)?	Even if the stop lacked reasonable suspicion, Defendant’s independent criminal act (drawing, pointing, and pulling the trigger) was an intervening event breaking the causal chain, so the gun was admissible.	Attenuation was never argued below; State waived the argument and may not raise it on appeal — court should not consider an unpreserved theory; if not considered, suppression should be granted.	Majority: Admissible — Defendant’s act was a sufficient intervening event to attenuate taint; plain-error review does not show prejudice. Dissent: State failed to preserve attenuation; would reverse suppression denial.
Is the State barred from advancing attenuation on appeal because it did not raise it at the suppression hearing?	The appellate court may uphold the trial court’s correct ultimate ruling on any theory supported by the record; preservation rule does not bar appellee from alternative legal bases on appeal; alternatively, Rule 2 was invoked to consider the issue.	The State cannot "swap horses"; failure to raise attenuation below waives it — appellate courts should not consider unpreserved arguments, and Rule 2 should not be used here.	Majority and concurrence: State may rely on alternative legal bases to sustain a correct ruling; Rule 2 invoked to consider attenuation if necessary. Dissent: Preservation rules bar consideration and would reverse.
Under plain-error review (defendant failed to object at trial), did Defendant meet his burden to show the admission of the gun was plain error?	Admission was not plain error because even assuming an unlawful stop the discovery was sufficiently attenuated.	Defendant argued the stop was unlawful and, given State’s failure to preserve attenuation, the gun’s admission was error that affected his substantial rights.	Majority: No plain error; conviction stands. Dissent: Would find error because attenuation was unpreserved.

Key Cases Cited

Brown v. Texas, 443 U.S. 47 (1979) (reasonable-suspicion requirement for investigatory stops)
Terry v. Ohio, 392 U.S. 1 (1968) (framework for investigatory stops and minimal level of objective justification)
Wong Sun v. United States, 371 U.S. 471 (1963) (exclusionary rule and "fruit of the poisonous tree" analysis)
Utah v. Strieff, 136 S. Ct. 2056 (2016) (attenuation doctrine factors: temporal proximity, intervening circumstances, purpose/flagrancy of misconduct)
State v. Bone, 354 N.C. 1 (2001) (appellate review asks whether the trial court’s ultimate ruling was supported by the evidence)
State v. Biber, 365 N.C. 162 (2011) (standard of review for suppression rulings: findings of fact supported by competent evidence)
State v. Sprinkle, 106 F.3d 613 (4th Cir. 1997) (defendant’s separate criminal act during an unlawful stop can create lawful basis for arrest and admissible evidence)
Bailey, 691 F.2d 1009 (11th Cir.) (if a suspect’s response to an illegal stop is a new, distinct crime, police may lawfully arrest for that crime)