State v. Elder

753 S.E.2d 504, 232 N.C. App. 80, 2014 WL 217165, 2014 N.C. App. LEXIS 66
CourtCourt of Appeals of North Carolina
DecidedJanuary 21, 2014
DocketCOA13-710
StatusPublished
Cited by2 cases

This text of 753 S.E.2d 504 (State v. Elder) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Elder, 753 S.E.2d 504, 232 N.C. App. 80, 2014 WL 217165, 2014 N.C. App. LEXIS 66 (N.C. Ct. App. 2014).

Opinions

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....
[82]*8213. 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 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 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 [83]*83indicate 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 competent evidence, 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.

[84]*84State 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 [Required [o]fficers [t]o [ojbtain [a] [vjalid [wjarrant [bjefore [ejnt'ering Mr. Elder’s [hjome.” 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[;J” 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.

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Related

State v. Downey
791 S.E.2d 257 (Court of Appeals of North Carolina, 2016)
State v. Elder
773 S.E.2d 51 (Supreme Court of North Carolina, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
753 S.E.2d 504, 232 N.C. App. 80, 2014 WL 217165, 2014 N.C. App. LEXIS 66, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-elder-ncctapp-2014.