State v. Elder

NO. COA13-710
NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 10CRS246707-09
GREGORY ELDER,
Defendant.
Appeal by defendant from judgment entered 18 December 2012 by
Judge Linwood O. Foust in Superior Court, Mecklenburg County.
Heard in the Court of Appeals 5 November 2013.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Michael E. Bulleri, for the State.
Michele Goldman, for defendant-appellant.
STROUD, Judge.
Defendant appeals judgment entered upon his guilty plea after
the denial of his motion to suppress. For the following reasons,
we vacate the judgment and remand.
I. Background
On 23 September 2010, based upon an action brought under North
Carolina General Statute Chapter 50B by defendant’s wife, Stacy
Elder, the district court entered an ex parte domestic violence
order of protection (“ex parte DVPO”) against defendant. In the
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ex parte DVPO, the district court found that on 22 September 2010,
defendant had placed his wife in “fear of imminent serious bodily
injury” and had threatened to “torch their son’s preschool,” among
other threats of violence. The district court did not make any
findings under finding 3 of the “ADDITIONAL FINDINGS”1 portion of
the ex parte DVPO on page 2, which would be a finding listing any
“firearms, ammunition, and gun permits” to which defendant was “in
possession of, owns or ha[d] access.” The district court ordered
several of the enumerated forms of relief under North Carolina
General Statute § 50B-3, including the following provisions which
are relevant for purposes of this case:
It is ORDERED that:
. . . .
12. the defendant is prohibited from
possessing, owning or receiving[,] purchasing
a firearm for the effective period of this
Order[,] and the defendant’s concealed handgun
permit is suspended for the effective period
of this Order. . . .
13. the defendant surrender to the Sheriff
serving this order the firearms, ammunition,
and gun permits described in Number 3 of the
Findings on Page 2 of this Order and any other
firearms and ammunition in the defendant’s
care, custody, possession, ownership or
1 “ADDITIONAL FINDINGS” are optional findings on the form for the
ex parte DVPO, AOC-CV-304 Rev. 8/09.
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control.2 . . .
. . . .
15. Other: (specify) . . .
Any Law Enforcement officer serving this Order
shall search the Defendant’s person, vehicle
and residence and seize any and all weapons
found.
See N.C. Gen. Stat. § 50B-3 (2009).
This case arises from defendant’s motion to suppress evidence
found in his home when the officers served defendant with the ex
parte DVPO, and the evidence seized as a result of the search
pursuant to the ex parte DVPO led to the criminal charges for which
defendant was convicted. The relevant events as found by the
trial court are that between 23 September and 26 September officers
had attempted several times, without success, to serve defendant
with the ex parte DVPO. On 26 September 2010, a deputy sheriff
“received a call from the dispatcher indicating that the defendant
was at the residence[,]” and so “several deputies” went to the
residence. The deputies knocked on the door “for a period of time”
with no answer, and “[a]fter about 15 minutes, the defendant came
to answer the door, and the defendant opened the door and slid out
of the door, closing the door behind him.” Defendant then locked
2 As we have already noted, nothing was “described in Number 3 of
the Findings on Page 2 of this Order[.]”
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the deadbolt on the door. One of the deputies took defendant’s
“keys from the defendant’s pocket and unlocked the door” and the
officers entered the home to search the house in accord with
“paragraph 15 of the domestic violence order.” “[U]pon entry into
the residence, a pungent odor of marijuana was smelled by the
officers[,]” and ultimately they went downstairs and found
marijuana.
At the hearing on the motion to suppress, the officers’
testimonies are not consistent on many facts regarding the search
of defendant’s home, but they all seem to agree that they went to
defendant’s home not only to serve the ex parte DVPO but also to
arrest defendant upon a valid arrest warrant for communicating
threats, and defendant was indeed arrested upon this warrant. Yet
we also note that the findings do not mention the existence of an
arrest warrant for defendant, do not indicate that the officers
arrested defendant based upon the arrest warrant, and do not state
that any “firearms, ammunition, [or] gun permits” were seized.
But the trial court’s findings of fact are uncontested by either
party, so they are the facts upon which we rely.3
3 The State has not argued any alternative basis in law for the
trial court’s ruling, such as the arrest warrant, under North
Carolina Rule of Appellate Procedure Rule 10(c).
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As a result of the items seized during this search, defendant
was indicted for possession of drug paraphernalia, maintaining a
place to keep controlled substances, and manufacturing a
controlled substance. On 8 October 2012, defendant made a motion
to suppress “any and all physical evidence and any statements
attributed to the defendant by the police as such evidence was
obtained as the result of an illegal and unconstitutional search
and seizure of the Defendant and his home” because
the police had neither reasonable suspicion
nor probable cause to search his home and no
exceptions to the fourth amendment existed.
Instead, the search was performed pursuant to
an Ex Parte 50B order signed and dated
9/23/2012 by Judge Hoover in the Mecklenburg
County District Court. The search authorized
in the Ex Parte 50 B Order exceeded the
statutory provisions in GS 50B-3.1 and has no
other constitutional grounds constituting an
exception to the 4th am[]e[n]dment.
Defendant’s motion to suppress was denied, and on 18 December 2012,
the trial court entered judgment upon defendant’s guilty plea of
all the charges; the trial court suspended defendant’s sentence.
Defendant appeals.
II. Standard of Review
It is well established that the standard
of review in evaluating a trial court’s ruling
on a motion to suppress is that the trial
court’s findings of fact are conclusive on
appeal if supported by competent evidence,
even if the evidence is conflicting. In
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addition, findings of fact to which defendant
failed to assign error are binding on appeal.
Once this Court concludes that the trial
court’s findings of fact are supported by the
evidence, then this Court’s next task is to
determine whether the trial court’s
conclusions of law are supported by the
findings. The trial court’s conclusions of
law are reviewed de novo and must be legally
correct.
State v. Johnson, ___ N.C. App. ___, ___, 737 S.E.2d 442, 445
(2013) (citation omitted).
III. Motion to Suppress
Defendant contends that his motion to suppress should have
been allowed because “[t]he North Carolina [a]nd United States
Constitutions [b]oth [r]equired [o]fficers [t]o [o]btain [a]
[v]alid [w]arrant [b]efore [e]ntering Mr. Elder’s [h]ome.”
Defendant does not challenge the trial court’s factual findings
regarding this search but only its legal conclusion that
“defendant’s rights under the Fourth and Fourteenth Amendment have
not been violated and that the officers acted pursuant to a valid
Court order, valid at the time the officers followed the order as
designated to them[;]” defendant raises this challenge pursuant to
both the federal and state constitutions.
The State contends that defendant failed to argue violation
of the North Carolina Constitution before the trial court such
that his state constitutional challenge is not properly preserved
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before this Court. We disagree, as we conclude that the State’s
argument is hyper-technical regarding the portions of the North
Carolina Constitution defendant cited; it is clear that defendant
argued before the trial court that his North Carolina
constitutional rights were violated when law enforcement officers
searched his home without a warrant or exigent circumstances.
Accordingly, we will address defendant’s North Carolina
constitutional claim.
The State relies upon the ex parte DVPO as providing
sufficient legal authority for this search, since the officers
were simply carrying out the directive of the district court’s ex
parte DVPO, which directed 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.” The State
contends that North Carolina General Statute § 50B-3(a)(13)
“provided authority for the district court judge to issue the
search provision in question.” In the alternative, the State
argues that if the ex parte DVPO did not properly authorize the
search or if it is not sufficient to serve as a de facto “search
warrant,” the officers executed the ex parte DVPO under exigent
circumstances and in good faith, and thus the exclusionary rule
should not apply to exclude the items seized in the search.
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The district court order in question is a civil ex parte
domestic violence order of protection issued in an action
completely unrelated to the current criminal action before us
regarding the drug-related charges brought against defendant. The
State was not a party to the ex parte DVPO, and no issues regarding
that order are before us on appeal. Accordingly, we consider the
ex parte DVPO as a valid district court order which was issued in
an unrelated civil action.
Defendant contends that the law does not provide an avenue
for converting the ex parte DVPO into a search warrant and despite
the State’s arguments, North Carolina General Statute § 50B-
3(a)(13) does not provide authority for the district court to order
a general search of a defendant’s home without probable cause and
without complying with “the provisions of N.C. Gen. Stat. §§ 15A-
241 through -259.”
North Carolina General Statute § 50B-3(a) sets out the relief
which the district court may grant under Chapter 50B:
(a) If the court, including magistrates
as authorized under G.S. 50B-2(c1), finds that
an act of domestic violence has occurred, the
court shall grant a protective order
restraining the defendant from further acts of
domestic violence. A protective order may
include any of the following types of relief:
(1) Direct a party to refrain from such
acts.
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(2) Grant to a party possession of the
residence or household of the parties and
exclude the other party from the
residence or household.
(3) Require a party to provide a spouse
and his or her children suitable
alternate housing.
(4) Award temporary custody of minor
children and establish temporary
visitation rights pursuant to G.S. 50B-2
if the order is granted ex parte, and
pursuant to subsection (a1) of this
section if the order is granted after
notice or service of process.
(5) Order the eviction of a party from
the residence or household and assistance
to the victim in returning to it.
(6) Order either party to make payments
for the support of a minor child as
required by law.
(7) Order either party to make payments
for the support of a spouse as required
by law.
(8) Provide for possession of personal
property of the parties, including the
care, custody, and control of any animal
owned, possessed, kept, or held as a pet
by either party or minor child residing
in the household.
(9) Order a party to refrain from doing
any or all of the following:
a. Threatening, abusing, or
following the other party.
b. Harassing the other party,
including by telephone, visiting
the home or workplace, or other
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means.
b1. Cruelly treating or abusing an
animal owned, possessed, kept, or
held as a pet by either party or
minor child residing in the
household.
c. Otherwise interfering with the
other party.
(10) Award attorney’s fees to either
party.
(11) Prohibit a party from purchasing a
firearm for a time fixed in the order.
(12) Order any party the court finds is
responsible for acts of domestic violence
to attend and complete an abuser
treatment program if the program is
approved by the Domestic Violence
Commission.
(13) Include any additional prohibitions
or requirements the court deems necessary
to protect any party or any minor child.
N.C. Gen. Stat. § 50B-3.
North Carolina General Statute § 50B-3.1, entitled “Surrender
and disposal of firearms; violations; exemptions[],” has
additional provisions which are relevant for our purpose of
determining the extent of the district court’s authority to order
a general search of defendant, his vehicle, and his residence for
weapons.
(a) Required Surrender of Firearms. --
Upon issuance of an emergency or ex parte
order pursuant to this Chapter, the court
shall order the defendant to surrender to the
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sheriff all firearms, machine guns,
ammunition, permits to purchase firearms, and
permits to carry concealed firearms that are
in the care, custody, possession, ownership,
or control of the defendant if the court finds
any of the following factors:
(1) The use or threatened use of a
deadly weapon by the defendant or a
pattern of prior conduct involving the
use or threatened use of violence with a
firearm against persons.
(2) Threats to seriously injure or kill
the aggrieved party or minor child by the
defendant.
(3) Threats to commit suicide by the
defendant.
(4) Serious injuries inflicted upon the
aggrieved party or minor child by the
defendant.
(b) Ex Parte or Emergency Hearing. --
The court shall inquire of the plaintiff, at
the ex parte or emergency hearing, the
presence of, ownership of, or otherwise access
to firearms by the defendant, as well as
ammunition, permits to purchase firearms, and
permits to carry concealed firearms, and
include, whenever possible, identifying
information regarding the description,
number, and location of firearms, ammunition,
and permits in the order.
. . . .
(d) Surrender.--Upon service of the
order, the defendant shall immediately
surrender to the sheriff possession of all
firearms, machine guns, ammunition, permits to
purchase firearms, and permits to carry
concealed firearms that are in the care,
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custody, possession, ownership, or control of
the defendant. In the event that weapons
cannot be surrendered at the time the order is
served, the defendant shall surrender the
firearms, ammunitions, and permits to the
sheriff within 24 hours of service at a time
and place specified by the sheriff. The
sheriff shall store the firearms or contract
with a licensed firearms dealer to provide
storage.
(1) If the court orders the defendant to
surrender firearms, ammunition, and
permits, the court shall inform the
plaintiff and the defendant of the terms
of the protective order and include these
terms on the face of the order, including
that the defendant is prohibited from
owning, possessing, purchasing, or
receiving or attempting to own, possess,
purchase, or receive a firearm for so
long as the protective order or any
successive protective order is in effect.
The terms of the order shall include
instructions as to how the defendant may
request retrieval of any firearms,
ammunition, and permits surrendered to
the sheriff when the protective order is
no longer in effect. The terms shall
also include notice of the penalty for
violation of G.S. 14-269.8.
N.C. Gen. Stat. § 50B-3.1 (2009).
While North Carolina General Statute § 50B-3(a)(13) provides
that the district court may “[i]nclude any additional prohibitions
or requirements the court deems necessary to protect any party or
any minor child” we cannot read “any” as broadly as the State
suggests. N.C. Gen. Stat. § 50B-3(a)(13). We first note that
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North Carolina General Statute § 50B-3(a)(13) must be read in pari
materia with the rest of the relevant statutory provisions. See
Redevelopment Commission v. Bank, 252 N.C. 595, 610, 114 S.E.2d
688, 698 (1960) (“It is a fundamental rule of statutory
construction that sections and acts in pari materia, and all parts
thereof, should be construed together and compared with each
other.”) North Carolina General Statute § 50B-3.1 contains very
detailed provisions specifically addressing the authority of the
district court as to the surrender, retrieval, return, and
disposal of “all firearms, machine guns, ammunition, permits to
purchase firearms, and permits to carry concealed firearms[.]”
N.C. Gen. Stat. § 50B-3.1(a). North Carolina General Statute §
3.1 repeatedly uses the word “surrender” to describe what a
defendant must do. “Surrender” is defined “to yield to the power,
control, or possession of another upon compulsion or demand[.]”
Merriam-Webster’s Collegiate Dictionary 1258 (11th ed. 2003).
Thus, a defendant is required “[u]pon service of the order” to
“immediately” yield to the law enforcement officer “all firearms,
machine guns, ammunition, permits to purchase firearms, and
permits to carry concealed firearms[.]” N.C. Gen. Stat. § 50B-
3.1(d). North Carolina General Statute § 50B-3.1 simply does not
provide any basis for the district court to order a general search
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of a defendant’s person, vehicle, and residence for unspecified
“weapons[.]” See id. If a defendant specifically refused a law
enforcement officer’s direct request, in accord with a court order,
to surrender a weapon, this may present another issue, but here no
such request was made. The district court exceeded its statutory
authority by ordering a general search of defendant’s person,
vehicle, and residence for unspecified “weapons” as a provision of
the ex parte DVPO under North Carolina General Statute § 50B-
3(a)(13).
In addition, the State’s argument implies that even if the
district court lacked statutory authority pursuant to North
Carolina General Statute § 50B-3(a)(13) to order the search, the
ex parte DVPO could still serve as a valid search warrant. “[T]he
power of the State to conduct searches and seizures is in
derogation of . . . Article One, Section 20 of the North Carolina
Constitution[.]” Brooks, Comr. Of Labor v. Enterprises, Inc., 298
N.C. 759, 761-62, 260 S.E.2d 419, 421 (1979).
Our Supreme Court has held that a governmental
search and seizure of private property
unaccompanied by prior judicial approval in
the form of a warrant is per se unreasonable
unless the search falls within a well-
delineated exception to the warrant
requirement involving exigent circumstances.
The North Carolina Constitution forbids
general warrants whereby any officer or other
person may be commanded to search suspected
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places without evidence of the act committed,
or to seize any person or persons not named,
whose offense is not particularly described
and supported by evidence. The North Carolina
Constitution requires that evidence
discovered pursuant to an unreasonable search
or seizure be excluded.
State v. Cline, 205 N.C. App. 676, 679, 696 S.E.2d 554, 556-57
(2010) (citations, quotation marks, and brackets omitted).
It is fundamental that a search warrant
is not issued except upon a finding of
probable cause. Probable cause means that
there must exist a reasonable ground to
believe that the proposed search will reveal
the presence upon the premises to be searched
of the objects sought and that those objects
will aid in the apprehension or conviction of
the offender.
State v. Lindsey, 58 N.C. App. 564, 565, 293 S.E.2d 833, 834 (1982)
(citation and quotation marks omitted).
The district court did not make any findings of fact or
conclusions of law in the ex parte DVPO regarding probable cause
to believe that the search “will reveal the presence upon the
premises to be searched of the objects sought and that those
objects will aid in the apprehension or conviction of the
offender.” Id. The district court did not mention “probable
cause” because the ex parte DVPO was entered in a civil proceeding,
not a criminal matter, and the concept of “probable cause” is
simply not applicable to this situation, between two private
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parties. Although there may be many other reasons that an ex parte
DVPO is not a de facto search warrant, one reason is that the
district court made no determination regarding probable cause for
the search. Id. Furthermore, without a proper search warrant,
unless exigent circumstances existed, the objects seized during
the search must be suppressed. Cline, 205 N.C. App. at 679, 696
S.E.2d at 556-57.
The State next contends that exigent circumstances existed
because the officers needed to perform a “protective sweep” of the
home. The State cites State v. Stover, 200 N.C. App. 506, 685
S.E.2d 127 (2009) in support of its argument. In Stover, officers
went to do a “’knock and talk’” at a house identified by an
informant as the place she had purchased marijuana. 200 N.C. App.
at 507, 685 S.E.2d at 129. The officers had no warrant to search
the house, but when they approached the house, they smelled “a
‘strong odor of marijuana’” and saw the defendant, “whose entire
upper torso was out of a window.” Id. This Court stated:
In addition to probable cause, the
situation must have presented exigent
circumstances in order to justify the
officers’ entrance into defendant’s house.
When Officers Crisp and Brown arrived at the
residence and after they smelled marijuana,
Officer Crisp heard a noise from the back of
the house and saw defendant, whose upper torso
was partially out a window. Although
defendant states that he simply had responded
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to a call from his neighbor, Officer Crisp
could reasonably believe that defendant was
attempting to flee the scene. The officers
also stated that they were concerned about
possible destruction of evidence, due to the
smell of marijuana and defendant’s possible
attempted flight. These facts sufficiently
support a conclusion that exigent
circumstances existed at the time the officers
gained entrance into defendant’s house. We
hold, therefore, that both probable cause and
exigent circumstances existed when officers
entered defendant’s residence and conducted a
protective sweep. Because the officers
legally entered defendant’s house and saw the
evidence seized in plain view during their
protective sweep, the trial court did not err
in admitting that evidence.
Id. at 513, 685 S.E.2d 132-33 (emphasis added).
There are some factual similarities between Stover and this
case: officers approached a house in which they found marijuana,
and at some point they smelled the marijuana, see id. at 507, 685
S.E.2d at 129, but the similarities end there. The State overlooks
a crucial point in Stover: this Court first determined that “the
officers had probable cause to enter defendant's house” before
there was a need for a protective sweep. Id. at 513, 685 S.E.2d
at 132. Here, the State does not contend, nor did the trial court
conclude, that the officers had probable cause to suspect any
particular criminal activity when they approached defendant’s
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home.4 In addition, the trial court made no findings as to any
exigent circumstances or the need for a protective sweep.
At last, the State also contends that even if the ex parte
DVPO did not properly authorize the search, and if there were no
exigent circumstances to justify it, the “good faith exception”
applies. There is no doubt that the officers acted entirely in
“good faith” as they served the ex parte DVPO and fulfilled the
directives of the district court, which included a general search
of the defendant’s person, residence, and vehicle. While we agree
that the good faith exception might have applied if defendant
challenged this search only under the United States Constitution,
defendant also challenges this search based upon the North Carolina
Constitution, and there is a no good faith exception to the
4 We note that while the testimony before the trial court indicates
that officers arrested defendant at his home based upon a valid
arrest warrant for communicating threats, the trial court did not
address this issue at all in its findings of fact and the State
makes absolutely no argument that the search of defendant’s home
was in any way related to his arrest or any other actual or
suspected criminal activity. Although it appears from the
testimony at the hearing that the officers arrested defendant based
upon a valid arrest warrant the State makes no argument that the
search the officers conducted was incident to the arrest. We again
note that the testimonies of the officers as to the details of the
search were not consistent, but we must rely upon the facts as
found by the trial court, which do not mention any arrest warrant.
Furthermore, we again note, the State has not argued any
alternative basis in law for the search. The only arguments before
this Court in support of the search are based upon the ex parte
DVPO.
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exclusionary rule applied as to violations of the North Carolina
Constitution. See State v. Carter, 322 N.C. 709, 710-24, 370
S.E.2d 553, 554-62 (“We hold that there is no good faith exception
to the requirements of article I, section 20 as applied to the
facts of this case . . . . [I]t must be remembered that it is not
only the rights of this criminal defendant that are at issue, but
the rights of all persons under our state constitution. The
clearly mandated public policy of our state is to exclude evidence
obtained in violation of our constitution. This policy has existed
since 1937. If a good faith exception is to be applied to this
public policy, let it be done by the legislature, the body politic
responsible for the formation and expression of matters of public
policy. We are not persuaded on the facts before us that we should
engraft a good faith exception to the exclusionary rule under our
state constitution.” (citation omitted)). In the Editor’s Note of
North Carolina General Statute § 15A-974, our legislature
responded: “Session Laws 2011-6, s. 2, provides ‘The General
Assembly respectfully requests that the North Carolina Supreme
Court reconsider, and overrule, its holding in State v. Carter
that the good faith exception to the exclusionary rule which exists
under federal law does not apply under North Carolina State law.’”
N.C. Gen. Stat. § 15A-974, Editor’s Note (2011). The legislature
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specifically adopted a good faith exception in certain situations
regarding statutory violations, but did not address constitutional
violations, instead deferring to the Supreme Court in its session
laws. See N.C. Gen. Stat. § 15A-974(a)(2). At this time, our
Supreme Court has not overruled Carter, and “[w]e are bound by
precedent of our Supreme Court[.]” State v. Pennell, ___ N.C.
App. ___, ___, 746 S.E.2d 431, 441 (2013). We realize that the
legislature recently adopted the session law requesting that the
Supreme Court overrule Carter in 2011, and it is possible that the
Court has not yet had an appropriate opportunity to address this
issue. This case could potentially present such an opportunity,
should the State petition for discretionary review of this ruling,
but we are not permitted to anticipate or predict what the Supreme
Court might do; we are bound by the existing precedent of Carter.
See id. Accordingly, there is no good faith exception to the
exclusionary rule as to violations of the North Carolina State
Constitution.5 See Carter, 322 N.C. 709, 710-24, 370 S.E.2d 553,
5 We note that this Court has stated that it is unclear whether
there is a good faith exception to the exclusionary rule for
violations of the North Carolina Constitution; however, we believe
the language of Carter is clear that such an exception does not
currently exist. See State v. Banner, 207 N.C. App. 729, 732-33
n. 7, 701 S.E.2d 355, 358 n.7 (2010) (“This is known as the good-
faith exception. The Leon Court explained that suppression of
evidence is only required when doing so will further the goal of
the exclusionary rule--deterrence. There is disagreement over
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554-62.
As defendant’s premises were searched without a search
warrant and without exigent circumstances, and as the good faith
exception does not apply to evidence obtained in violation of the
North Carolina Constitution, we conclude that the wrongfully
seized evidence should have been excluded; see Cline, 205 N.C.
App. at 679, 696 S.E.2d at 556-57, accordingly, defendant’s motion
to suppress should have been allowed.
IV. Conclusion
For the foregoing reasons, we vacate the judgment
entered upon defendant’s guilty plea and remand this case for entry
of an order allowing defendant’s motion to suppress.
VACATED and REMANDED.
Judge MCGEE concurs.
Judge BRYANT dissents in a separate opinion.
whether there is such an exception to the North Carolina
Constitution. Thus, it is possible that evidence not excluded by
the federal constitution might be excluded by the North Carolina
Constitution.” (Citation and quotation marks omitted.) Footnote
seven goes on to provide, “Compare Carter, 322 N.C. at 722-24, 370
S.E.2d at 561-62 (refusing to allow a good-faith exception to the
North Carolina Constitution with respect to non-testimonial
identification orders), with State v. Garner, 331 N.C. 491, 506-
08, 417 S.E.2d 502, 510-11 (1992) (rejecting the notion that
Article I, Section 20 of the North Carolina Constitution provides
more protection than the Fourth Amendment to the United States
Constitution while approving the use of the inevitable discovery
rule (Citation omitted.)).”
NO. COA13-710
NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 10CRS246707-09
GREGORY ELDER,
Defendant.
BRYANT, Judge, dissenting.
In vacating the trial court’s judgment entered upon
defendant’s guilty plea and directing entry of an order allowing
defendant’s motion to suppress, the majority states that in issuing
the 22 September 2010 DVPO order, the district court “exceeded its
statutory authority by ordering a general search of the defendant’s
person, vehicle, and residence for unspecified ‘weapons’ as a
provision of the ex parte DVPO under . . . . ' 50B-3(a)(13).”
Because I believe the district court acted within its statutory
authority, I respectfully dissent.
Pursuant to North Carolina General Statutes, section 50B-3,
(a) If the court . . . finds that an act of
domestic violence has occurred, the court
shall grant a protective order . . . . A
protective order may include any of the
following types of relief: . . . (13) Include
any additional prohibitions or requirements
the court deems necessary to protect any party
or any minor child.
2
N.C. Gen. Stat. ' 50B-3(a)(13) (2013).
In its 22 September 2010 DVPO, the Mecklenburg County District
Court ordered law enforcement officers to “search the Defendant’s
person, vehicle and residence and seize any and all weapons found.”
The majority goes to great length to explain why it deems the
general authority authorized by section 50B-3(a)(13) not broad
enough to support the order. Specifically, the majority relies
upon section 50B-3.1(a) as providing a limitation to the authority
conferred to the court in section 50B-3(a)(13) by statutory
construction rule to read statutory provisions in pari materia.
However, the authority conferred in General Statutes section 50B-
3(a)(13) is broader than that of section 50B-3.1. Where section
50B-3.1 provides a procedure for initially determining the likely
existence of firearms and the surrender and disposal of firearms,
section 50B-3(a)(13) authorizes a trial court to include in its
protective orders “any . . . prohibitions or requirements the court
deems necessary to protect any party or any minor child.” N.C.G.S.
' 50B-3(a)(13).
In addressing whether the 22 September 2010 DVPO order was
proper, the trial court made the following findings of fact:
The domestic violence [protective] order was
issued based on a finding by that Court that
the defendant had threatened the plaintiff and
that the defendant had threatened to get some
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gasoline and torch their son's preschool, her
house, the plaintiff, and her sister's house
and also stated that I'm going to get all of
you and that "You won't f**king stop me, the
police won't f**king stop me."
The findings of fact also include the finding
that the defendant had a history of substance
abuse and mental illness and that the
defendant also made threats to anyone
attempting to go into the marital residence.
As noted, there was certainly probable cause to search
incident to the lawful arrest for communicating threats, which was
not considered by the trial court as a basis for the denial of the
motion to suppress; likewise, the State did not argue that the
search incident to service of the arrest warrant provided an
additional basis. So, I will not further address it.
However, because the district court had authority to order
the search of defendant’s residence in its 22 September 2010 DVPO
pursuant to section 50B-3(a)(13), the law enforcement officers
acted properly in response to that authority such that the
resulting search and seizure of contraband was proper. For this
reason, I would affirm the order of the trial court denying
defendant’s motion to suppress the seizure of contraband from
defendant’s residence due to said search and leave undisturbed the
trial court’s judgment entered pursuant to defendant’s plea of
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guilty to the charges of manufacturing marijuana and possession of
drug paraphernalia.