Does a DV protection order allow cops to search someone's home? | News
News
INDY Week's news blog

Archives | RSS

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."
Pin It

Comments

Subscribe to this thread:

Add a comment

INDY Week publishes all kinds of comments, but we don't publish everything.

  • Comments that are not contributing to the conversation will be removed.
  • Comments that include ad hominem attacks will also be removed.
  • Please do not copy and paste the full text of a press release.

Permitted HTML:
  • To create paragraphs in your comment, type <p> at the start of a paragraph and </p> at the end of each paragraph.
  • To create bold text, type <b>bolded text</b> (please note the closing tag, </b>).
  • To create italicized text, type <i>italicized text</i> (please note the closing tag, </i>).
  • Proper web addresses will automatically become links.

Latest in News



Twitter Activity

Comments

It's spelled "Zainab Baloch".

by jason0x21 on Baldwin Bows Out of Raleigh At-large Race; All Council Candidates Have Opposition (News)

I live in Durham NC. We have a large growth in the last 6 years. The city have really gotten …

by Margaret Houston on Section 8 Voucher Holders Are Having a Hard Time Finding Housing in Durham (News)

Most Recent Comments

It's spelled "Zainab Baloch".

by jason0x21 on Baldwin Bows Out of Raleigh At-large Race; All Council Candidates Have Opposition (News)

I live in Durham NC. We have a large growth in the last 6 years. The city have really gotten …

by Margaret Houston on Section 8 Voucher Holders Are Having a Hard Time Finding Housing in Durham (News)

@ Hunter23 "A combination of investors and loans" is not specific, and nowhere in the article is the phrase "private …

by RJO_III on North Carolina FC and John Kane Want to Put a Big Ol' Soccer Stadium in Downtown Raleigh (News)

The article clearly states the building would be privately funded with the state/local gov pitching in for infrastructure enhancement. The …

by Hunter23 on North Carolina FC and John Kane Want to Put a Big Ol' Soccer Stadium in Downtown Raleigh (News)

I truly admire the passion and support the message. But it seems standing on an overpass during rush hour traffic …

by Diane Alenezi on High Above I-40, Protesters Call for "Health Care 4 All" (News)

© 2017 Indy Week • 320 E. Chapel Hill St., Suite 200, Durham, NC 27701 • phone 919-286-1972 • fax 919-286-4274
RSS Feeds | Powered by Foundation