Court of Appeals Upholds Validity of Ex Parte DVPOs

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Court of Appeals Upholds Validity of Ex Parte DVPOs

Posted on July 2, 2013 by Jeff Welty

Background. In State v. Byrd, 363 N.C. 214 (2009), the state supreme court concluded that an ex parte domestic violence protective order, or DVPO, was not a “valid protective order” for purposes of the sentencing enhancement under G.S. 50B-4.1(d). (As explained in this prior post about Byrd, the enhancement provides that a felony that also constitutes a DVPO violation shall be punished one class higher than it otherwise would be.) The ruling cast broad doubt on the validity of ex parte DVPOs, and the General Assembly subsequently enacted legislation that appeared to be intended to reverse Byrd and to bolster the efficacy of ex parte DVPOs. Today, the court of appeals considered whether the legislation achieved its desired outcome.

The case is State v. Poole. As a side note, the State was represented in the case by new School of Government faculty member LaToya Powell, back when she was still at the Attorney General’s office. Poole involved the following series of events.

October 14, 2011: The defendant’s wife sought and obtained an ex parte DVPO based on the defendant’s threatening and harassing behavior. The order required the defendant to surrender his firearms to the officer who served the order.
October 17, 2011: A deputy sheriff served the DVPO on the defendant.
October 18, 2011: Officers returned to the defendant’s home and found a shotgun. The defendant was “arrested for violating the DVPO and indicted for ‘owning, possessing, purchasing, or receiving a firearm’ in violation of [G.S.] 14-269.8.”

Defendant’s motion to dismiss. The defendant moved to dismiss the charge, apparently on two grounds. First, he noted that G.S. 50B-1 defines a “protective order” as an order issued after a “hearing by the court or consent of the parties.” He argued that Byrd held that an ex parte proceeding is not a “hearing,” and therefore, that an ex parte DVPO is not a “protective order.” And if an ex parte DVPO is not a “protective order,” he reasoned, it cannot support a prosecution under G.S. 50B-3.1(j) (making it a Class H felony to possess a firearm in violation of a “protective order”), and its counterpart, G.S. 14-269.8. Second, he argued that prosecuting him criminally for violating an ex parte order violated due process principles.

Court rulings. The trial judge agreed, but the State appealed and the court of appeals reversed.

Ex parte DVPOs can support charges under G.S. 50B-3.1. It dealt with the statutory argument first. It noted that the General Assembly enacted S.L. 2009-342 immediately after Byrd, and observed that the amendment added G.S. 50B-4(f) and G.S. 50B-4.1(h), both of which expressly define the term “valid protective order” to include ex parte DVPOs. Although the defendant was charged under G.S. 50B-3.1, which was not amended, rather than G.S. 50B-4 or G.S. 50B-4.1, the court of appeals ruled that the amendments manifested a legislative intent to confer full legitimacy on ex parte DVPOs. Furthermore, it noted, G.S. 50B-3.1(a) expressly refers to “an emergency or ex parte order,” so a violation of that statute in particular may be predicated on an ex parte DVPO.

No due process violation. The court then ruled on the constitutional issue, concluding that the defendant was not deprived of due process when he was prosecuted for violating an ex parte DVPO. The court noted that due process usually requires that a person be given notice and an opportunity to be heard before he or she may be deprived of liberty or property, but stated that prior notice and an opportunity to be heard may be dispensed with in exceptional circumstances. It ruled that the need to protect victims of domestic violence is a purpose sufficiently important to justify the use of ex parte orders, especially given that such orders are subject to review at an adversarial hearing within 10 days.

Conclusion. Perhaps the legislative response to Byrd could have been drafted to avoid any ambiguity about the status of ex parte DVPOs. But whatever ambiguity existed before Poole, little remains afterwards. Violations of ex parte DVPOs are no different from violations of other types of orders that may be issued under Chapter 50B, and may result in charges under G.S. 50B-3.1 as well as 50B-4.1.

Category: Crimes and Elements, Procedure, Uncategorized | Tags: byrd, domestic violence, DVPOs, ex parte, poole, protective orders

Obtaining a Search Warrant after Charges Have Been Brought

Posted on June 24, 2013 by Jeff Welty

Most search warrants are obtained before anyone has been charged with a crime. But sometimes officers will charge a defendant and then decide to obtain a search warrant to seek additional evidence. In such a case, may investigators still obtain a search warrant from a magistrate, or does a magistrate lose jurisdiction over the case after the defendant’s initial appearance? And, once a defendant has been charged, may officers still seek a search warrant ex parte, or must the defendant be given notice and an opportunity to be heard?

The magistrate doesn’t lose jurisdiction. A magistrate may issue a search warrant “valid throughout the county” in which the magistrate serves. G.S. 7A-273(4). See also G.S. 15A-243(b)(3) (noting magistrates’ authority). This authority is the same as the authority of the clerk and his or her deputies and assistants. G.S. 7A-180(5); 7A-181; 15A-243(b)(2). Nothing in the relevant statute limits the authority of these officials to a particular phase of an investigation, and the state supreme court has ruled that a clerk may issue a search warrant even after a defendant has been charged with a crime. State v. Pennington, 327 N.C. 89 (1990) (“Because indictments had been returned against him, defendant argues that jurisdiction over all matters relating to his trial rested with the Superior Court . . . at the time the warrant was issued,” but “[t]he issuance of a search warrant is neither a district court matter nor a superior court matter, but pertains to pretrial investigation which need not – indeed, often cannot at that point – be classified according to the court where the defendant may eventually be tried.”). The same reasoning applies to the authority of a magistrate. The law of search warrants is therefore different than the law of pretrial release. In the latter context, G.S. 15A-534(e) provides that a magistrate loses the power to modify a defendant’s release conditions after the defendant’s first appearance in district court, and that a district court judge loses authority over the conditions after the case moves to superior court.

There’s no ex parte problem. Search warrants normally are obtained ex parte, without giving the defendant an opportunity to be heard. See generally Franks v. Delaware, 438 U.S. 154 (1978) (“The pre-search proceeding is necessarily ex parte, since the subject of the search cannot be tipped off to the application for a warrant lest he destroy or remove evidence.”). Before charges have been brought, this is clearly permissible. At that stage, there is no defendant to whom notice and an opportunity to be heard could be given. After charges have been brought, is proceeding ex parte improper under G.S. 15A-951(b) (motions must be served on opposing party) or otherwise? No. Although we don’t have a case directly on point in North Carolina, the search warrant statutes neither require nor provide a mechanism for notice and hearing. Furthermore, the no-tipoff rationale set out in Franks still applies. And the case law in other jurisdictions is uniform. See, e.g., State v. Blye, 130 S.W.3d 776 (Tenn. 2004) (rejecting the defendant’s argument that the “ex parte application for and the issuance of [a] search warrant [for his blood, in order to conduct DNA testing in a rape case] violated his Sixth Amendment right to the assistance of counsel” because “an ex parte application for a search warrant to obtain a blood sample from a defendant, sought after the defendant had been charged, was not a critical stage of the proceedings,” and collecting cases from other jurisdictions on point); People v. Mason, 989 P.2d 757 (Colo. 1999) (approving of prosecutor’s use of a subpoena to obtain telephone and bank records in a pending case and noting that “a search warrant supported by probable cause for these same records may be obtained by the prosecutor, ex parte, and executed without notice to the defendant and without opportunity for the defendant to challenge the search and seizure before it occurs”); People v. McNair, 926 N.Y.S.2d 101 (N.Y.A.D. 1 Dept. 2011) (“The police took custody of a cell phone that defendant was carrying at the time of his arrest. While this case was pending . . . the police obtained a search warrant to retrieve information from the phone. The ex parte procedure was lawful, since the target of a search warrant has no right to notice or an opportunity to be heard on the application.”); Dorward v. Ramirez, 2009 WL 2777880 (N.D. Tex. Aug. 28, 2009) (unpublished) (“Search warrants are routinely obtained ex parte, even after a person has been arrested or charged with a crime.”).

I have heard anecdotal reports that judges are more likely than magistrates to be concerned about proceeding ex parte after charges have been brought, so as a practical matter, seeking a search warrant from a magistrate rather than a judge once a case is pending may be advisable. But the bottom line is that officers who wish to obtain a search warrant after charges are pending against a defendant may do so in the usual way.

Category: Procedure, Search and Seizure, Uncategorized | Tags: ex parte, search warrants

Obtaining Medical Records under G.S. 8-53

Posted on August 25, 2009 by Jeff Welty

I’ve received questions from both prosecutors and defense lawyers about whether and how the state can obtain a suspect’s — or a defendant’s — medical records when those records may contain information relevant to a criminal investigation. The most frequently-asked questions are addressed in the scenario below. Take a look, and post a comment if you disagree with my analysis of the law.

Suppose that Dan Driver has a one-car accident. Ollie Officer responds to the scene. Because it is 2:00 a.m. and there is no obvious cause for the accident, Ollie suspects Dan of DWI. EMTs take Dan to the local hospital for treatment, and Ollie is not able to, or simply fails to, obtain a blood sample under the implied-consent laws. Ollie contacts Paul Prosecutor and asks him to obtain a court order for Dan’s medical records, which Ollie knows are likely to contain bloodwork reflecting Dan’s blood alcohol content. Paul agrees to seek the order, and prepares a motion and order under G.S. 8-53, which allows the disclosure of otherwise-privileged health care records if “necessary to a proper administration of justice.”

1. Is such an order even necessary? Generally, yes. Under G.S. 90-21.20B, a health care provider must, upon request, “disclose to any law enforcement officer investigating the crash” certain information about Dan, because he was involved in an accident, including “name, location, and whether the person appears to be impaired by alcohol [or] drugs.” But this does not appear to authorize health care providers to disclose Dan’s medical records, which are what Paul and Ollie want. Such records are privileged under G.S. 8-53, and so are not subject to disclosure absent a court order. Paul and Ollie might, alternatively, obtain a search warrant for the hospital, though the hospital may view a court order as less threatening.

2. What showing must the state make in order to obtain such an order? Likely, reasonable suspicion. Cf. In re Superior Court Order, 315 N.C. 378 (1986).

3. Suppose that no charges are pending against Dan. Must Paul give Dan any notice of his intent to seek a court order? Probably not. Since there are no charges pending, Dan is not a “party” to any proceeding, and G.S. 15A-951, which requires motions to be served, therefore does not apply. Likewise, Paul’s motion is technically not ex parte, as there is no opposing party. Moving for an order under such circumstances would be akin to seeking a search warrant, or to seeking an order under In re Superior Court Order, supra, either of which may be done without providing notice to the suspect.

4. Suppose that Ollie charged Dan with DWI prior to contacting Paul. Must Paul give Dan any notice of his intent to seek a court order? Probably so. Because Dan now is a party, G.S. 15A-951 requires that the motion be served on Dan. Furthermore, submitting the motion ex parte likely violates the Rules of Professional Conduct. See Rule 3.5(a)(3); 2001 FEO 15. The mere fact that G.S. 8-53 allows a court order to trump the physician-patient privilege says nothing about whether such orders may be obtained ex parte. Nor does State v. Jones, 133 N.C. App. 448, 463 (1999), allow such an ex parte motion. The court there stated that “[a]lthough the case law prohibits ex parte communications with a party’s health care provider in civil cases absent the party-patient’s express consent . . . defendant has cited no authority to extend this rule to criminal defendants.” Not only does Jones fall short of holding that ex parte contacts with health care providers are permissible, by its terms it applies only to such contacts, not to ex parte contacts with the court, which is, of course, where Paul’s motion would be filed.

5. If Paul fails to give notice to Dan but notice was required, what happens? Dan may be able, in effect, to contest the motion after the fact, by appealing the order and/or by moving to suppress the evidence produced in response to the order or moving in limine to exclude it. See State v. Miller, 80 N.C. App. 425 (1986). Thus, Paul’s failure to give notice does not necessarily prejudice Dan, and does not necessarily require the exclusion of evidence produced in response to the order. However, a judge probably could exclude the evidence, if so inclined and upon proper findings, under the statutory exclusionary rule in G.S. 15A-974.

6. Which records should the judge require the hospital to produce? The judge should not allow the state to review all of Dan’s medical records, which may contain private and irrelevant information. Instead, the court’s order should require the hospital to produce only medical records that are relevant to the issue of impairment, including the results of any blood tests. If the judge is in doubt about the relevance of certain records, the judge may require an in camera inspection of the records, after which the judge may disclose the relevant records and withhold the remainder.

Category: Search and Seizure, Uncategorized | Tags: ex parte, medical records, privileges

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