State v. Elder, 368 N.C. 70 (Jun. 11, 2015)

Modifying and affirming the decision below, State v. Elder, 232 N.C. App. 80 (2014), the supreme court held that the district court exceeded its statutory authority under G.S. 50B-3 by ordering a search of defendant’s person, vehicle, and residence pursuant to an ex parte civil Domestic Violence Order of Protection (“DVPO”) and that the ensuing search violated the defendant’s constitutional rights. Relying on G.S. 50B-3(a)(13) (authorizing the court to order “any additional prohibitions or requirements the court deems necessary to protect any party or any minor child”) the district court included in the DVPO a provision stating: “[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 district court made no findings or conclusions that probable cause existed to search the defendant’s property or that the defendant even owned or possessed a weapon. Following this mandate, the officer who served the order conducted a search as instructed. As a result of evidence found, the defendant was charged with drug crimes. The defendant unsuccessfully moved to suppress, was convicted and appealed. The supreme court concluded that the catch all provision in G.S. 50B-3 “does not authorize the court to order law enforcement, which is not a party to the civil DVPO, to proactively search defendant’s person, vehicle, or residence.” The court further concluded “by requiring officers to conduct a search of defendant’s home under sole authority of a civil DVPO without a warrant or probable cause, the district court’s order violated defendant’s constitutional rights” under the Fourth Amendment.