Does a DV protection order allow cops to search someone's home? | News
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Friday, January 9, 2015

Does a DV protection order allow cops to search someone's home?

Posted by on Fri, Jan 9, 2015 at 2:52 PM

Mecklenburg County sheriff's deputies arrived to a man's house to serve him with a domestic violence protection order. When the man answered, the officers entered the house to search for weapons. The found no guns, but they did find marijuana in the process of being manufactured. Now the man wants the drug charges thrown out, because the deputies didn't have a search warrant.

Those are the elements that will be discussed at the N.C. Supreme Court in Raleigh on Monday, in the case of State v. Gregory Elder.

In 2012, Elder pleaded guilty to manufacturing marijuana and possession of drug paraphernalia. Prior to his guilty plea, however, he filed a motion to suppress the marijuana evidence, arguing that the officers had neither reasonable suspicion or probable cause to search his home. The trial judge denied the motion. Elder was placed on probation. 

Last year, however, the N.C. Supreme Court sided with Elder and, in a 2-1 split, vacated the charges. Attorney General Roy Cooper's office appealed the case once more, and the Supreme Court agreed to hear it.

The case stems from the fall of 2010, when Elder told his wife he would buy gasoline and "torch their son's preschool." According to the wife, Elder added, "I'm going to get all of you, and that 'You won't fucking stop me, the police won't fucking stop me.' "

The district judge who entered the domestic violence protection order took the extra step of requiring law enforcement officers to "search the Defendant's person, vehicle and residence and seize any and all weapons found"—even though Elder's wife had indicated that no weapons were stored in the home.

Days later, several sheriff''s deputies knocked on Elder's door with the protection order. After answering, Elder stepped forward and closed it behind him. The officers entered the home, explaining they needed to search it for weapons. The home smelled like marijuana. The deputies ultimately found marijuana downstairs.

In its January 2014 opinion, the Court of Appeals ruled that the judge who ordered the protection order overstepped his bounds by requiring officers to search the home for weapons. A civil DV protection order, wrote Judge Donna Stroud for the majority, is "an action completely unrelated to the current criminal action before us regarding the drug-related charges brought against defendant." 

But the State will argue on Monday that a protection order permits such a search for unspecified weapons. It will also cite a related statute that attaches to DV protective orders "any additional prohibitions or requirements the court deems necessary to protect any party or any minor child."
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