232 N.C. App. 80
N.C. Ct. App.2014Background
- In 2010, an ex parte DVPO was issued against Elder based on threats and fear of imminent serious bodily injury.
- The order prohibited firearm possession, suspended his concealed handgun permit, and instructed surrender of weapons and related items.
- The DVPO included a provision authorizing officers to search Elder’s person, vehicle, and residence for weapons.
- Deputies attempted service multiple days; on September 26, they entered Elder’s home after he answered and allegedly found marijuana.
- Elder moved to suppress the seized evidence, arguing lack of probable cause, unlawful search, and absence of valid warrant or exigent circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the ex parte DVPO’s search authority valid under § 50B-3(a)(13)? | State contends DVPO allowed a general search for weapons under § 50B-3(a)(13). | Elder argues the district court lacked authority to order a general search of person, vehicle, and home for unspecified weapons. | Majority held district court exceeded statutory authority; no general search for unspecified weapons permitted. |
| Does the ex parte DVPO warrant or supersede Fourth Amendment protections under the NC Constitution? | State asserts the DVPO could serve as a search warrant or rely on exigent circumstances. | Elder argues the search violated the NC Constitution’s prohibition on unreasonable searches absent warrant or proper exceptions. | NC Constitution excludes a good faith exception; the search cannot be saved by good faith and should be suppressed. |
| Did exigent circumstances or arrest warrant support the search? | State contends protective sweep or arrest incident could justify the search. | Elder contends no probable cause or exigent circumstances were proven for entering the home. | There were no supported exigent circumstances or valid warrant findings in the ex parte order; suppression warranted. |
Key Cases Cited
- State v. Cline, 205 N.C. App. 676 (2010) (unreasonable searches require warrant unless exception applies)
- State v. Lindsey, 58 N.C. App. 564 (1982) (probable cause required for searches and warrants)
- State v. Stover, 200 N.C. App. 506 (2009) (protective sweep requires probable cause and exigent circumstances)
- State v. Carter, 322 N.C. 709 (1983) (no good faith exception to NC Constitution; exclusionary rule applied)
- State v. Banner, 207 N.C. App. 729 (2010) (debates on good faith exception under NC Constitution)