State v. Elder: DVPO Cannot Authorize Search for Guns

A judge who issues an emergency or ex parte domestic violence protective order must order the defendant to surrender all firearms in his care, custody or control if the judge makes certain findings about the defendant’s prior conduct. Among the findings that trigger the weapons-surrender requirement is a finding that the defendant used or threatened to use a deadly weapon or has a pattern of prior conduct involving the use or threatened use of violence with a firearm. A defendant served with such an order must immediately surrender his firearms to the sheriff. If the weapons cannot be immediately surrendered, he must surrender them within 24 hours. But what if the defendant does not turn over any firearms? May the protective order authorize the sheriff to search the defendant, his home, and/or his vehicle for such weapons?

No. The North Carolina Supreme Court in State v. Elder, __ N.C. __, ___ S.E.2d ___ (June 11, 2015), held that G.S. 50B-3 did not authorize the district court to include in a domestic violence protective order (DVPO) a directive that law enforcement officers search the defendant, his vehicle and his residence for weapons.

Facts. Gregory Elder’s wife sought an ex parte DVPO in September 2010. The court entered the DVPO, finding that Elder had threatened to get gasoline and torch their son’s preschool, his wife’s house and her sister’s house. The court also found that Elder had said “‘I’m going to get you all,’” and “‘you won’t [expletive deleted] stop me, and the police won’t [expletive deleted] stop me.’” (Slip op. at 2.) Finally, the court found that Elder had a history of substance abuse and mental illness and that he had made threats to anyone who attempted to go into the marital residence.

The court concluded that Elder had committed acts of domestic violence in the past and that he continued to present a danger of future violence. The court ordered him to surrender his firearms, ammunition and gun permits, as provided in G.S. 50B-3.1.

Relying on G.S. 50B-3(a)(13), which authorizes the court to include as relief in a DVPO “any additional prohibitions or requirements the court deems necessary to protect any party or minor child,” the court ordered 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.’” (Slip op. at 2.)

The DVPO contained no findings that Elder owned or possessed a weapon.

Service of the DVPO. After several attempts, officers successfully served the DVPO on Elder three days after it was issued. They knocked on his door for fifteen minutes. Elder came outside and locked the door behind him―a reasonable precaution since there was marijuana growing operation inside.

The officers took the keys from Elder’s pockets, unlocked the door and went inside to search for weapons as ordered in the DVPO.

You know what they found growing in the basement.

Motion to suppress. Elder was charged with several drug crimes. He moved to suppress the evidence the officers found on the basis that the search violated his Fourth Amendment rights. The trial court denied the motion. A divided panel of the court of appeals reversed, holding that the DVPO statutes did not authorize the district court to order the search, that the DVPO was not a de facto search warrant because it contained no findings of probable cause to believe that evidence of a crime would be found in the places ordered searched, and that the search was not authorized by exigent circumstances. The dissenting opinion concluded that the district court was statutorily authorized to order the search. The State appealed, and the state supreme court affirmed.

Supreme Court’s Analysis. G.S. 50B-3(a)(1)-(13) lists thirteen types of relief that a court may order in a DVPO. The first twelve subsections authorize the court to impose specific prohibitions or requirements on a party to the DVPO. The court may order a party to refrain from acting in a certain way (not to harass the other party, for example) or to act in a certain way (to pay child support, for example). The last subsection, G.S. 50B-3(a)(13), is a catch-all provision that authorizes the court to order “any additional prohibitions or requirements the court deems necessary to protect any party or any minor child.”

The Elder court held that this catch-all provision limits the court to ordering a party to act or refrain from acting, as do the preceding subsections. The provision does not authorize the court to order in a DVPO that law enforcement officers search the defendant, his vehicle, or his residence.

Fourth Amendment. The Elder court explained that its interpretation was consistent with the Fourth Amendment and Article 1, Section 20 of the North Carolina Constitution. Were it to conclude otherwise, the court reasoned, “district courts would have seemingly unfettered discretion to order a broad range of remedies in a DVPO so long as the judge believes they are necessary for the protection of any party or child.” (Slip op. at 6.)

Because Elder was, of course, a criminal case and the defendant’s motion to suppress was based on the violation of his state and constitutional rights, the court then considered whether the search indeed violated those rights. The court concluded that nothing in the case excused the requirement that a search of person’s home be conducted pursuant to a warrant issued by a judicial official following a determination of probable cause. While acknowledging that domestic violence is a significant problem and the state has a vital interest in protecting victims, the court concluded that the facts of the case did not justify a special needs search of the type authorized when interests beyond the normal need for law enforcement make the warrant and probable cause requirement impracticable. Thus, the court determined that the warrantless search of the defendant’s home violated his state and federal constitutional rights.

What if the DVPO had included findings that the defendant had a gun? I don’t think the outcome would be any different. Elder held that the trial court had no authority under G.S. 50B-3 to order in a DVPO that law enforcement officers search the defendant, his home, or vehicle. The court’s interpretation of the statute does not appear to hinge on the possible presence of a weapon. I’m likewise doubtful that a finding that the defendant had a firearm would alter the constitutional analysis governing an ensuing search of the defendant’s home. At the time a DVPO is served, the defendant must surrender his firearms. If a law enforcement officer has probable cause to believe that a firearm is located within a defendant’s residence and has not been surrendered as required, she may seek issuance of a search warrant to recover the weapon.