State v. Elder

• Decision Date: 21 January 2014
• Docket Number: No. COA13–710.,COA13–710.
• Citation: 753 S.E.2d 504
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Gregory ELDER, Defendant.

753 S.E.2d 504

STATE of North Carolina

v.Gregory ELDER, Defendant.

No. COA13–710.

Court of Appeals of North Carolina.

Jan. 21, 2014.

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 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 ammunitionin the defendant's care, custody, possession, ownership or 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.

SeeN.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 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

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 competentevidence, even if the evidence is conflicting. In 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 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.

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.

(2) Grant to a party possession of the residence or household of the parties and exclude the...