No. COA13-710 TWENTY-SIX DISTRICT

NORTH CAROLINA COURT OF APPEALS

* * * * * * * * * * * * * * * * *

STATE OF NORTH CAROLINA, )Plaintiff )

)v. ) From Mecklenburg County

)GREGORY ELDER )

Defendant ))

* * * * * * * * * * * * * * * * *

DEFENDANT-APPELLANT’S BRIEF AND PETITION FOR WRIT OF CERTIORARI

* * * * * * * * * * * * * * * * *

TABLE OF CONTENTS

QUESTION PRESENTED............................................................................................1

STATEMENT OF THE CASE.................................................................................1

STATEMENT OF GROUNDS FOR APPELLATE REVIEW................................2

PETITION FOR A WRIT OF CERTIORARI..........................................................3

STATEMENT OF THE FACTS...............................................................................4

STANDARD OF REVIEW.......................................................................................6

ARGUMENT............................................................................................................7

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....................................7

1. The North Carolina And United States Constitutions Both Required Officers To Obtain A Valid Warrant Before Entering Mr. Elder’s Home................................11

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...............................................................12

3. The Good Faith Exception To The Exclusionary Rule Does Not Apply Here.....................................................15

CONCLUSION.......................................................................................................18

CERTIFICATE OF WORD COUNT.....................................................................19

CERTIFICATE OF SERVICE................................................................................19

VERIFICATION......................................................................................................20

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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

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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

RUL ES

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

CONSTITUTIONAL PROVISIONS

N.C. Const. article I, § 20..........................................................................................8

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

NO. COA13-710 TWENTY-SIX DISTRICT

NORTH CAROLINA COURT OF APPEALS

* * * * * * * * * * * * * * * *

STATE OF NORTH CAROLINA, )Plaintiff )

)v. ) From Mecklenburg County

)GREGORY ELDER )

Defendant )

* * * * * * * * * * * * * * * * *

DEFENDANT-APPELLANT’S BRIEF

* * * * * * * * * * * * * * * * *

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

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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

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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,

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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.

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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

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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)

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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

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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

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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

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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)

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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

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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

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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.

Further, the order’s command to seize “weapons” lacked the required

particularity. Where a warrant fails to adequately name the object or objects

sought, it violates the prohibition against general warrants. State v. Myers, 266

N.C. 581, 146 S.E.2d 674 (1966); State v. Connard, 81 N.C. App. 327, 344 S.E.2d

568 (1986). Anything can be a weapon, depending on how it is used. Indeed, our

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Legislature has defined the term “weapon” differently depending on its statutory

context. For example, in N.C. Gen. Stat. § 14-269.2 (West 2013), which makes it a

crime to carry weapons on an educational campus, the term weapon includes a gun,

rifle, pistol, or other firearm of any kind, dynamite cartridge, bomb, grenade, mine,

or powerful explosive as defined in G.S. 14-284.1, BB gun, stun gun, air rifle, air

pistol, bowie knife, dirk, dagger, slungshot, leaded cane, switchblade knife,

blackjack, metallic knuckles, razors and razor blades (except solely for personal

shaving), firework, or any sharp-pointed or edged instrument except instructional

supplies, unaltered nail files and clips and tools used solely for preparation of food,

instruction, and maintenance. In N.C. Gen. Stat. § 14-315 (West), which

criminalizes the sale of weapons to a minor, weapons other than handguns are

defined as any pistol cartridge, brass knuckles, bowie knife, dirk, shurikin, leaded

cane, or slungshot. The term “weapon” alone offers little information about what

falls within its reach. Thus, by using the generic term “weapons,” the order failed

to set forth with particularity what the officers were authorized to look for and

seize.

Although less glaring, there were other substantial violations of the

procedures required for a valid search warrant: No time appeared above the judge’s

signature on the order as required by N.C. Gen. Stat. § 15A-246, and the order was

served three days after its issuance, and thus was void. N.C. Gen. Stat. § 15A-248.

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Accordingly, the order to search Mr. Elder’s home was not valid because it did not

comply with the requirements for the issuance of a search warrant. The substantial

violations required suppression of the evidence obtained as a result of the unlawful

entry and search. Accordingly, the trial court erred in denying Mr. Elder’s motion

to suppress.

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

In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court

recognized a “good-faith” exception to the exclusionary rule as applied to

violations of the Fourth Amendment. Under this exception, the exclusionary rule

does not apply to Fourth Amendment violations where an officer acted in good

faith based on a search warrant that is later found to be invalid. However, for this

exception to apply, an officer’s reliance on the warrant must be objectively

reasonable:

[T]he officer's reliance on the magistrate's probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable, and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.

* * * [A]n officer [would not] manifest objective good faith in relying on a warrant based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid.

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Id. at 922-923 (citations and internal quotation marks omitted).

In 2011, our Legislature amended N.C. Gen. Stat. §15A-974(a)(2) to provide

a good-faith exception where exclusion would otherwise be required due to a

substantial violation of Chapter 15A: “Evidence shall not be suppressed under this

subdivision if the person committing the violation of the provision or provisions

under this Chapter acted under the objectively reasonable, good faith belief that the

actions were lawful.” N.C. Gen. Stat. § 15A-974.

Our Supreme Court in State v. Carter, supra, declined to adopt the Leon

good-faith exception to the exclusionary rule for violations of the North Carolina

State Constitution. Accordingly, exclusion is required for evidence obtained in

violation of a defendant’s rights under our State Constitution. Thus, Mr. Elder was

entitled to exclusion of the evidence obtained as a result of the search because the

search violated his rights under the North Carolina State Constitution.

Even where a good-faith exception is potentially available—for some Fourth

Amendment violations and some violations of Chapter 15A—it was not available

under the facts of this case. Unlike Leon, the officers here did not rely on a

warrant. Even were this Court to expand Leon to allow for good-faith reliance on

something other than a search warrant—an expansion the Carter Court declined to

make—the order here could not engender an objectively reasonable belief that the

search based on it was lawful. As Leon recognized, a warrant that obviously

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lacked indicia of probable cause or that failed to name with particularity the things

to be seized could not support a finding of good-faith. Indeed, in Connard, supra,

this Court refused to apply the Leon good-faith exception where the warrant

authorized a search for “stolen goods,” thus violating the prohibition against

general warrants. Id. at 334, 344 S.E.2d at 573. Here, the order in the DVPO

neither asserted that probable cause existed nor supported a finding of probable

cause to believe that there was evidence of a crime in Mr. Elder’s home. The order

also failed to indicate with any particularity the things to be seized. Thus, Leon’s

good-faith exception cannot apply to the search at issue here.

Similarly, any claim of good-faith under the exception provided under

N.C.G.S. §15A-974 must fail because such claim cannot meet the standard of

objective reasonableness. Here the district court judge committed a substantial

violation of Chapter 15A by ordering the search of Mr. Elder’s home without

probable cause to do so. He also committed a substantial violation of Chapter 15A

by failing to list with particularity the items to be seized, and by failing to indicate

the time at which he signed the order. The officers executing the order committed

a substantial violation of Chapter 15A by acting pursuant to an order that was so

obviously lacking in the basic requirements for a search warrant, and that was void

because it had not been served within 48 hours. These violations were so flagrant

that the order infected by them could not support an objectively reasonable, good-

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faith belief that the search was lawful. Accordingly, the evidence obtained as a

result of a search that violated Mr. Elder’s state and federal constitutional rights,

and that constituted a substantial violation of Chapter 15A, should have been

suppressed.

CONCLUSION

For all the foregoing reasons, Mr. Elder respectfully contends that the

conviction below should be vacated, the ruling denying the motion to suppress

reversed, and the matter remanded to the trial court for further proceedings.

Respectfully submitted this the 18th day of July, 2013.

(Electronically Submitted)

Michele GoldmanATTORNEY FOR DEFENDANT-APPELLANTN.C. State Bar No. 36358P.O. Box 30564Raleigh, NC 27622(919) 270-4175michelegoldman@earthlink.net

-19-

CERTIFICATE OF WORD COUNT

I hereby certify that the word count of Defendant-Appellant’s Brief in COA

13-710 is less than 8,750 words including footnotes and citations.

This the 18th day of July, 2013.

(Electronically Submitted) Michele Goldman

ATTORNEY FOR DEFENDANT-APPELLANT

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above Defendant-Appellant’s Brief was

duly served on Mr. Michael Bulleri, Assistant Attorney General, by sending it

electronically to his current email address, mbulleri@ncdoj.gov.

This the 18th day of July, 2013.

(Electronically Submitted) Michele Goldman

ATTORNEY FOR DEFENDANT-APPELLANTN.C. State Bar #36358P.O. Box 30564Raleigh, NC 27622(919) 270-4175michelegoldman62@gmail.com