State v. Elder: DVPO Cannot Authorize Search for Guns

A judge who issues an emergency or ex parte domestic violence protective order must order the defendant to surrender all firearms in his care, custody or control if the judge makes certain findings about the defendant’s prior conduct. Among the findings that trigger the weapons-surrender requirement is a finding that the defendant used or threatened to use a deadly weapon or has a pattern of prior conduct involving the use or threatened use of violence with a firearm. A defendant served with such an order must immediately surrender his firearms to the sheriff. If the weapons cannot be immediately surrendered, he must surrender them within 24 hours. But what if the defendant does not turn over any firearms? May the protective order authorize the sheriff to search the defendant, his home, and/or his vehicle for such weapons? No. The North Carolina Supreme Court in State v. Elder, __ N.C. __, ___ S.E.2d ___ (June 11, 2015), held that G.S. 50B-3 did not authorize the district court to include in a domestic violence protective order (DVPO) a directive that law enforcement officers search the defendant, his vehicle and his residence for weapons. Facts. Gregory Elder’s wife sought an ex parte DVPO in September 2010. The court entered the DVPO, finding that Elder had threatened to get gasoline and torch their son’s preschool, his wife’s house and her sister’s house. The court also found that Elder had said “‘I’m going to get you all,’” and “‘you won’t [expletive deleted] stop me, and the [...]