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
 -2-
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.
 -3-
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[.]”
 -4-
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).
 -5-
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
 -6-
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
 -7-
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.
 -8-
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.
 -9-

(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
 -10-
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
 -11-
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,
 -12-
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
 -13-
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
 -14-
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
 -15-
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
 -16-
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
 -17-
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
 -18-
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.
 -19-
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
 -20-
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
 -21-
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
 3

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
 4

guilty to the charges of manufacturing marijuana and possession of

drug paraphernalia.