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State v. Elder

Supreme Court of North Carolina

June 11, 2015

STATE OF NORTH CAROLINA
v.
GREGORY ELDER

Heard in the Supreme Court January 12, 2015

MODIFIED AND AFFIRMED.

Roy Cooper, Attorney General, by Ward Zimmerman, Special Deputy Attorney General, for the State-appellant.

Michele Goldman for defendant-appellee.

OPINION

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, ___ N.C.App. ___, 753 S.E.2d 504 (2014), vacating a judgment entered on 17 December 2012 by Judge Linwood O. Foust in Superior Court, Mecklenburg County, and remanding for entry of an order allowing defendant's motion to suppress.

NEWBY, Justice.

In this case we must determine whether N.C.G.S. § 50B-3 authorized the district court to order a search of defendant's person, vehicle, and residence pursuant to an ex

Page 52

parte civil Domestic Violence Order of Protection (" DVPO" ) and whether the ensuing search violated defendant's constitutional rights. Because the district court exceeded its statutory authority by ordering the search, and because the warrantless search lacked a basis in probable cause and no exigent circumstances were present, we modify and affirm the decision of the Court of Appeals.

On 23 September 2010, at the request of defendant's then-wife, the district court entered an ex parte DVPO against defendant under N.C.G.S. § 50B-3. In the DVPO the district court found that:

[d]efendant threatened to get some gasoline and torch their son's pre-school, her house and her sister's house. He also stated that " I'm gonna get you all," and that " you won't [expletive deleted] stop me, the police won't [expletive deleted] stop me." He has a history of substance abuse and mental illness. He has also made threats to anyone attempting to go into the marital residence.

Concluding, inter alia, that defendant had committed acts of domestic violence in the past and that he continued to present a danger of future violence, the court ordered defendant to surrender his firearms, ammunition, and gun permits, as provided in N.C.G.S. § 50B-3.1. Relying on subdivision 50B-3(a)(13), which authorizes the court to order " any additional prohibitions or requirements the court deems necessary to protect any party or any minor child," the court further ordered in the DVPO that " [a]ny Law Enforcement officer serving this Order shall search the Defendant's person, vehicle and residence and seize any and all weapons found." Notably, the court made no findings or conclusions that probable cause existed to search defendant's property or that defendant even owned or possessed a weapon.

After several attempts, officers served the DVPO on defendant at his residence three days after it was issued. Officers knocked on defendant's door for fifteen minutes before he came outside. Defendant then closed the front door of the house and locked the door. An officer took defendant's keys from his pocket, and officers entered the house to execute the search for weapons ordered in the DVPO. Before the search began, officers arrested and handcuffed defendant under a valid arrest warrant for communicating threats. Once inside defendant's home officers smelled marijuana and followed the odor to the basement, where they found a marijuana growing operation. Defendant was charged with manufacturing a controlled substance, maintaining a place to keep controlled substances, and possession of drug paraphernalia.

On 8 October 2012, defendant filed a pretrial motion to suppress the evidence discovered during the search of his residence. He contended that the district court did not have statutory authority to order a search under the DVPO and that the search violated his constitutional rights because " the police had neither reasonable suspicion nor probable cause to search his home and no exceptions to the fourth amendment existed." The Superior Court, Mecklenburg County denied defendant's motion to ...


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