Defendant-Appellant S Brief And

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No. COA13-710TWENTY-SIX DISTRICT

NORTH CAROLINA COURT OF APPEALS

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DEFENDANT-APPELLANT’S BRIEF AND

PETITION FOR WRIT OF CERTIORARI

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TABLE OF CONTENTS

QUESTION PRESENTED

STATEMENT OF THE CASE

STATEMENT OF GROUNDS FOR APPELLATE REVIEW

PETITION FOR A WRIT OF CERTIORARI

STATEMENT OF THE FACTS

STANDARD OF REVIEW

ARGUMENT

I.mr. elder’s constitutional and statutory rights were violated when officers entered and searched his home without his consent, without a warrant, without probable cause, and without any exigent circumstances. the trial court erred in denying his motion to suppress.

1. The North Carolina And United States Constitutions Both Required Officers To Obtain A Valid Warrant Before Entering Mr. Elder’s Home.

2. Suppression Was Required Because The Order To Search Mr. Elder’s Home Substantially Failed To Comply With The Statutory Requirements For A Valid Search Warrant.

3. The Good Faith Exception To The Exclusionary Rule Does Not Apply Here.

CONCLUSION

CERTIFICATE OF WORD COUNT

CERTIFICATE OF SERVICE

VERIFICATION

TABLE OF AUTHORITIES

Cases

Hartman v. Robertson, 208 N.C. App. 692, 703 S.E.2d 811 (2010)...... 8

In re Appeal of the Greens of Pine Glen Ltd. P'ship, 356 N.C. 642, 576 S.E.2d 316 (2003) 6

In re I.T.P-L, 194 N.C. App. 453, 670 S.E.2d 282 (2008) disc. review denied, 363 N.C. 581, 681 S.E.2d 783 (2009) 4

In re Walters, 229 N.C. 111, 47 S.E.2d 709 (1948)...... 8

State v. Carter, 322 N.C. 709, 370 S.E.2d 553 (1988)...... 11

State v. Connard, 81 N.C. App. 327, 344 S.E.2d 568 (1986)...... 13, 17

State v. Cooke, 306 N.C. 132, 291 S.E.2d 618 (1982)...... 11

State v. Edwards, 185 N.C. App. 701, 649 S.E.2d 646, disc. rev. denied, 362 N.C. 89, 656 S.E.2d 281 (2007) 6

State v. Hernandez, 170 N.C. App. 299, 612 S.Ed.2d 420 (2005)...... 6

State v. Hyleman, 324 N.C. 506, 379 S.E.2d 830 (1989)...... 8

State v. McHone¸158 N.C. App. 117, 580 S.E.2d 80 (2003)...... 13

State v. Miller, 205 N.C. App. 724, 696 S.E.2d 542 (2010)...... 2

State v. Myers, 266 N.C. 581, 146 S.E.2d 674 (1966)...... 13

State v. Watkins, ___ N.C. App. ___, 725 S.E.2d 400 (2012)...... 4

United States v. Leon, 468 U.S. 897 (1984)...... 15, 16

Wong Sun v. United States 83 S.Ct. 407 (1962)...... 12

Statutes

N.C. Gen. Stat. § 14-269.2 (West 2013)...... 14

N.C. Gen. Stat. § 14-315 (West)...... 14

N.C. Gen. Stat. § 15A-242 (West 2013)...... 9

N.C. Gen. Stat. § 15A-244 (West 2013)...... 9

N.C. Gen. Stat. § 15A-246 (West 2013)...... 10, 14

N.C. Gen. Stat. § 15A-248 (West 2013)...... 10, 14

N.C. Gen. Stat. § 15A-259 (West 2013)...... 10

N.C. Gen. Stat. § 15A-974 (West 2013)...... 10

N.C. Gen. Stat. §15A-241 (West 2013)...... 7, 8, 12

N.C. Gen. Stat. §15A-979(b) (West 2013)...... 2

N.C. Gen. Stat. §50B (West 2013)...... 7

Rules

N.C. R. App. P. 21(a)(1)...... 3

Constitutional Provisions

N.C. Const. article I, § 20...... 8

U.S. Const. amend. IV...... 8

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NO. COA13-710TWENTY-SIX DISTRICT

North Carolina court of appeals

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DEFENDANT-APPELLANT’S BRIEF

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QUESTION PRESENTED

I.DID THE TRIAL COURT ERR IN DENYING MR. ELDER’S MOTION TO SUPPRESS EVIDENCE THAT WAS DISCOVERED AS A RESULT OF AN UNLAWFUL, WARRANTLESS ENTRY INTO AND SEARCH OF HIS HOME BASED ON A PATENTLY INVALID ORDER TO SEARCH CONTAINED IN A 50B ORDER?

STATEMENT OF THE CASE

On August 1, 2011, Mr. Elder was indicted in case number 10CRS246707 for possession of drug paraphernalia, in case number 10CRS246708, for maintaining a place to keep controlled substances, to wit marijuana, and in case number 10CRS246709 for manufacturing marijuana. (R pp 8-10) On 17 December 2012, these cases came on for a hearing on Mr. Elder’s Motion to Suppress in the General Court of Justice, Superior Court Division of Mecklenburg County, North Carolina, before the Honorable Linwood O. Foust, Judge Presiding. Judge Foust denied Mr. Elder’s motion. (T pp 78-83) (R pp 26-31) At the conclusion of the hearing, Mr. Elder pled guilty to all the charges against him, but reserved his right to appeal from the denial of his motion to suppress. (R pp 32-35) The Court consolidated the convictions for sentencing and imposed an intermediate sentence of 5 to 6 months confinement, suspended for 15 months of supervised probation that included special conditions. (R pp 36-42) Mr. Elder filed a written notice of appeal on 28 December 2012. (R p 44)

STATEMENT OF GROUNDS FOR APPELLATE REVIEW

Appeal from the denial of a motion to suppress evidence is a matter of right pursuant to N.C. Gen. Stat. §15A-979(b) (West 2013). In order to preserve this right, a defendant who pleads guilty must inform the State of his intent to reserve the right to appeal prior to the entry of the guilty plea, and he must give notice of appeal from the judgment. State v. Miller, 205 N.C. App. 724, 725, 696 S.E.2d 542 (2010) (a notice of appeal that merely appeals from the denial of a motion to suppress is insufficient to confer jurisdiction in the appellate court). Mr. Elder did both. (R pp 34, 44) In his timely filed, written Notice of Appeal, Mr. Elder gave “notice of appeal pursuant to North Carolina General Statute §15A-979(b) after a guilty plea following the denial of a Motion to Suppress.” (R p 44) N.C.G.S. §15A-979(b) provides that “[a]n order finally denying a motion to suppress evidence may be reviewed upon an appeal from a judgment of conviction, including a judgment entered upon a plea of guilty.” Thus, by referencing §15A-979(b) in his generically titled, “Notice of Appeal,” Mr. Elder’s notice of appeal indicated that it was an appeal from the judgment and was therefore sufficient to confer jurisdiction on this Court.

PETITION FOR A WRIT OF CERTIORARI

In the alternative, should this Court conclude trial counsel’s notice failed to appeal from the judgment and that this Court therefore lacks jurisdiction to hear this appeal, Mr. Elder respectfully requests this Court to exercise its discretion and issue a writ of certiorari to allow for the consideration of the appeal on its merits. N.C. R. App. P. 21(a)(1) provides that, “The writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments . . . of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action.” The timely filed Notice of Appeal clearly indicates Mr. Elder’s intention to pursue the appeal of his convictions. In his Transcript of Plea, Mr. Elder indicated his intent to appeal the court’s denial of his motion to suppress. Issuing a writ of certiorari would prevent Mr. Elder from being prejudiced by an arguable mistake made by his attorney. See In re I.T.P-L, 194 N.C. App. 453, 460, 670 S.E.2d 282, 285 (2008) disc. review denied, 363 N.C. 581, 681 S.E.2d 783 (2009) (issuing a writ of certiorari in order “to avoid penalizing Respondents for their attorneys' errors.”) State v. Watkins, ___ N.C. App. ___, ___, 725 S.E.2d 400, 402 (2012) (Court granted certiorari where defendant’s intent to appeal was clear from the record).

Accordingly, Mr. Elder, by undersigned counsel, respectfully requests this Court to consider this Defendant-Appellant’s Brief, the Record on Appeal, and the transcripts filed with this Court in this matter as Mr. Elder’s petition for a writ of certiorari to review the judgments of the Mecklenburg County Superior Court, Hon. Linwood O. Foust, Judge presiding, entered on 17 December 2012 in Mecklenburg County case numbers 10CRS246707-09.

STATEMENT OF THE FACTS

On 26 September 2010, Deputy Ray Legrand (Legrand), Sergeant Phillip Moody (Moody), and Sergeant Avery Britton (Britton) all of the Mecklenburg County Sheriff’s Office, went to Mr. Elder’s home. They knocked on the door, identified themselves and said they were there for Mr. Elder. After a brief delay, Mr. Elder came out of his front door, closed the door behind him, locked it, and put the keys in his pocket. The officers, who were there to serve Mr. Elder with an ex parte Domestic Violence Order of Protection (DVPO) issued pursuant to N.C. Gen. Stat. §50B and to arrest him on an outstanding warrant for communicating threats, handcuffed him and arrested him on the warrant. (T pp 32-33)

The officers did not have a search warrant. (T p 13) However, a single line on the ex parte DVPO, issued three days earlier, directed them to “search the Defendant’s person, vehicle and residence and seize any and all weapons found.” (R p 25) No time appeared above the issuing judge’s signature. There was no affidavit attached to the order, nor any finding that probable cause existed to believe that “weapons” would be found in Mr. Elder’s home or vehicle. While the order contained an option under the section entitled “Additional Findings” for the judge to indicate that the defendant owned or had access to an enumerated list of weapons, that finding was not made. (R p 25)

Based on the single line contained in the protection order, Moody told Mr. Elder that they needed to go back inside the house to go over the order and to search his house for weapons. (T p 27) Mr. Elder was cooperative. A deputy took the keys out of Mr. Elder’s pocket and opened the door. Several officers and Mr. Elder walked back into the house. Mr. Elder did not give anyone permission to enter. (T pp 33, 45-47)

After entering and closing the door, Moody noticed an odor of marijuana. Moody “followed [his] nose” downstairs to where the smell was the strongest. (T pp 28-29) In the basement, Moody saw what he believed to be a marijuana grow operation. After making this discovery, Moody spoke with Mr. Elder. When asked at the hearing on the motion to suppress, Moody recounted the conversation:

I was going to get a search warrant. I was there with the restraining order that gave me permission to search the residence for any and all weapons. He stated, “Instead of tearing the house up, I’ll show you where it’s at.”

(T p 30) Mr. Elder then showed Moody the location of additional marijuana.

STANDARD OF REVIEW

When reviewing a trial court’s ruling on a motion to suppress evidence, an appellate court determines whether challenged findings of fact are supported by competent evidence and whether those findings support the trial court’s conclusions of law. “However, the trial court's conclusions of law are reviewed de novo and must be legally correct State v. Edwards, 185 N.C. App. 701, 702, 649 S.E.2d 646, 648, disc. rev. denied, 362 N.C. 89, 656 S.E.2d 281 (2007); (internal citations and quotation omitted), State v. Hernandez, 170 N.C. App. 299, 304, 612 S.Ed.2d 420, 423 (2005) “Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the [trial court].” In re Appeal of the Greens of Pine Glen Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003) (citation omitted)

ARGUMENT

I.mr. elder’s constitutional and statutory rights were violated when officers entered and searched his home without his consent, without a warrant, without probable cause, and without any exigent circumstances. the trial court erred in denying his motion to suppress.

Summary of the Argument

Officers went to Mr. Elder’s home armed with an ex parte DVPO and an arrest warrant. Contained within the DVPO was an order to search Mr. Elder’s home, car and person for weapons. The order was not a search warrant, and it lacked the statutory and constitutional requirements for the issuance of a warrant. Most notably, it did not claim to be, nor was it based on, a determination that probable cause existed to believe that weapons, let alone weapons constituting evidence of a crime, would be found in Mr. Elder’s home. In fact, the ordering judge did not find that Mr. Elder possessed any weapons, despite the fact that such a finding required the judge to merely check a box. Nor did the judge find that the threats at issue in the application for the ex parte DVPO involved the use or threatened use of a deadly weapon. Further, the authorization to search Mr. Elder’s home did not describe with particularity the “weapons” to be seized.

No provision in N.C. Gen. Stat. §50B provided the judge with authority to issue a search warrant outside of the statutorily mandated procedure contained in N.C. Gen. Stat. §§15A-241 to -259 (West 2013). The order purporting to authorize the search constituted a substantial and patent violation of the requirements of the relevant statutes and of Mr. Elder’s state and federal constitutional rights. The fruits of that unlawful search should have been suppressed.

Legal Argument

The Fourth Amendment guarantees

“[t]he right of the people to be secure in their persons, houses, papers, and effects, . . . shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. “Article I, section 20 of our North Carolina Constitution provides the same protections as the Fourth Amendment.” Hartman v. Robertson, 208 N.C. App. 692, 697, 703 S.E.2d 811, 815 (2010).

Ordinarily even the strong arm of the law may not reach across the threshold of one's dwelling and invade the sacred precinct of his home except under authority of a search warrant issued in accord with pertinent statutory provisions.

In re Walters, 229 N.C. 111, 113, 47 S.E.2d 709, 710 (1948) (citations omitted). “The interest of a defendant to be free from unlawful searches and seizures is, of course, a fundamental constitutional and statutory right in North Carolina.”

State v. Hyleman, 324 N.C. 506, 510, 379 S.E.2d 830, 833 (1989).

N.C. Gen. Stat. §§15A-241 to -259 (West 2013) set forth the rules governing the issuance and execution of search warrants in North Carolina. The ex parte DVPO directing officers to search Mr. Elder’s house essentially met the statutory definition of a search warrant:

A search warrant is a court order and process directing a law-enforcement officer to search designated premises, vehicles, or persons for the purpose of seizing designated items and accounting for any items so obtained to the court which issued the warrant.

N.C. Gen. Stat. § 15A-241 (West 2013). However, it woefully failed to comport with the requirements for the issuance of a valid search warrant.

An item is subject to seizure pursuant to a warrant if there is probable cause to believe that it:

(1) Is stolen or embezzled; or

(2) Is contraband or otherwise unlawfully possessed; or

(3) Has been used or is possessed for the purpose of being used to commit or conceal the commission of a crime; or

(4) Constitutes evidence of an offense or the identity of a person participating in an offense.

N.C. Gen. Stat. § 15A-242 (West 2013) An application for a warrant must contain a statement—and facts supporting the statement—made under oath or affirmation “that there is probable cause to believe that items subject to seizure under G.S. 15A-242 may be found in or upon a designated or described place, vehicle, or person” N.C. Gen. Stat. § 15A-244 (West 2013); State v. Heath, 73 N.C. App. 391, 393, 326 S.E.2d 640, 642 (1985) (Statements in support of a warrant must be made under oath or affirmation). A search warrant must further contain “the name and signature of the issuing official with the time and date of issuance above his signature[.]” N.C. Gen. Stat. § 15A-246 (West 2013). The evidence of the time of issuance is important because

A search warrant must be executed within 48 hours from the time of issuance. Any warrant not executed within that time limit is void and must be marked “not executed” and returned without unnecessary delay to the clerk of the issuing court.

N.C. Gen. Stat. § 15A-248 (West 2013). Finally, the statutory requirements for search warrants “apply to search warrants issued for any purpose” other than a few, enumerated exceptions not applicable here. N.C. Gen. Stat. § 15A-259 (West 2013). Where evidence is obtained due to a substantial violation of the provisions of N.C. Gen. Stat. Chapter §15A, or where exclusion is constitutionally required, that evidence must be suppressed. N.C. Gen. Stat. § 15A-974 (West 2013)

In his motion to suppress, Mr. Elder’s challenged the search of his home on both statutory and constitutional grounds. (R p 17) (T p 63) The trial court found that the officers entered Mr. Elder’s home “for purposes of seizing weapons pursuant to the domestic violence order.” (T p 81) (R p 29) In denying Mr. Elder’s motion to suppress, the court erroneously held that the order to search Mr. Elder’s home was valid, and that Mr. Elder’s constitutional rights were not violated by the search. (T pp 82-83) (R pp 30-31)

1. The North Carolina And United States Constitutions Both Required Officers To Obtain A Valid Warrant Before Entering Mr. Elder’s Home.

It cannot be seriously debated that a warrant was required for police to breach the threshold of Mr. Elder’s home, without his consent, and without probable cause and exigent circumstances. State v. Cooke, 306 N.C. 132, 135, 291 S.E.2d 618, 620 (1982). The only question posed is whether the district judge’s order, contained in the DVPO, was tantamount to a search warrant. It was not.

In State v. Carter, 322 N.C. 709, 370 S.E.2d 553 (1988) our Supreme Court recognized that absent exigent circumstances and probable cause, a search warrant was required for the nonconsensual draw of a sample of defendant’s blood. In that case, a law enforcement officer obtained a nontestimonial identification order for a sample of the defendant’s blood. The State argued that the order was tantamount to a search warrant. In rejecting the State’s argument, our Supreme Court noted that a nontestimonial identification order could be issued without the showing of probable cause required for the issuance of a search warrant. Id. at 723-24, 370 S.E.2d at 561-62. Because the evidentiary requirements for the noncustodial identification order to issue were less than required for the issuance of a valid search warrant, the identification order could not take the place of a search warrant.

Here, unlike the nontestimonial identification order at issue in Carter, the statutory framework for ex parte DVPOs did not authorize the district court judge to issue an order to search a defendant’s home as part of the DVOP. See N.C. Gen. Stat. §50B-3. Rather, the mechanism for issuing an order to search someone’s home is explicitly and exclusively contained in N.C. Gen. Stat. §§15A-241 to -259. Given that, under Carter, a court’s order issued pursuant to statutory authority could not substitute for a constitutionally required warrant, certainly the order here, issued outside of any statutory authority and accordingly without any evidentiary prerequisites, could not take the place of a search warrant. The invalidity of the order and the process at issue here are made transparent by the facts of Mr. Elder’s case: the order to search Mr. Elder’s home issued without even a suggestion that probable cause existed to believe that evidence subject to seizure existed therein. Accordingly, Mr. Elder’s constitutional rights were violated when his home was entered and searched without a warrant. Evidence obtained as a result of the unconstitutional search should have been suppressed. Carter, supra; Wong Sun v. United States 83 S.Ct. 407 (1962).

2. Suppression Was Required Because The Order To Search Mr. Elder’s Home Substantially Failed To Comply With The Statutory Requirements For A Valid Search Warrant.

Even assuming arguendo that an order to search contained in an ex parte DVPO could hypothetically substitute for validly issued search warrant, this one did not. Testing the order against the requirements of a valid search warrant demonstrates that this order constituted a substantial violation of the provisions of N.C. Gen. Stat. §15A, and therefore, any evidence obtained as a result of that order should have been suppressed under N.C. Gen. Stat. §15A-974.

In State v. McHone¸158 N.C. App. 117, 580 S.E.2d 80 (2003), this Court held that “a search warrant application supported only by a conclusory affidavit constitutes a substantial violation of N.C. Gen. Stat. §15A-244[.]” Id. at 122, 580 S.E.2d at 84. Accordingly, the McHone Court upheld the trial court’s order suppressing evidence obtained as a result of that violation. Here, there was no affidavit at all supporting the trial court’s order authorizing a search of Mr. Elder’s home. Indeed, there were no statements provided to the issuing court or findings made by the court that Mr. Elder possessed weapons of any kind. There was certainly nothing in the order indicating that probable cause existed to believe that “weapons” would be found in the areas designated to be searched. Certainly, if a conclusory affidavit constitutes a substantial violation of the chapter thereby warranting suppression of evidence, the total absence of an affidavit and of probable cause must constitute a substantial violation and require a similar result.