NC: SW can’t issue merely because order of protection issued; showing of PC something will be found required

A search warrant cannot issue for defendant’s house merely because the court issues a domestic violence order of protection. There must be a showing of probable cause and for what to enter the house. “Special needs” doctrine does not apply. State v. Elder, 2015 N.C. LEXIS 452 (June 11, 2015):

In this case we must determine whether N.C.G.S. § 50B-3 authorized the district court to order a search of defendant’s person, vehicle, and residence pursuant to an ex parte civil Domestic Violence Order of Protection (“DVPO”) and whether the ensuing search violated defendant’s constitutional rights. Because the district court exceeded its statutory authority by ordering the search, and because the warrantless search lacked a basis in probable cause and no exigent circumstances were present, we modify and affirm the decision of the Court of Appeals.

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A search unsupported by a warrant or probable cause can be constitutional when the “‘special needs'” of the State, “‘beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.'” Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S. Ct. 3164, 3168, 97 L. Ed. 2d 709, 717 (1987) (citation omitted). The United States Supreme Court has limited this exception to circumstances in which “the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by” requiring a warrant and probable cause. Skinner, 489 U.S. at 624, 109 S. Ct. at 1417, 103 L. Ed. 2d at 664 (special need to assure railroad employees operating trains are not under influence of drugs or alcohol); see also, e.g., Griffin, 483 U.S. at 873-74, 107 S. Ct. at 3168, 97 L. Ed. 2d at 717-18 (special need to supervise and search probationers); New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S. Ct. 733, 742, 83 L. Ed. 2d 720, 734 (1985) (special need to deter drug use in public schools).

While domestic violence is certainly a significant problem and the State’s interest in protecting victims from domestic violence is vital, the facts of this case do not justify a departure from the usual warrant and probable cause requirements. Defendant’s fundamental right to privacy was paramount because his home is “protected by the highest constitutional threshold.” State v. Grice, 367 N.C. 753, 760, 767 S.E.2d 312, 318 (2015). Moreover, it was not impracticable for officers to obtain a search warrant if they had a reasonable basis to believe defendant possessed weapons that posed an imminent danger. An ex parte DVPO that contains no indication that weapons are present simply does not implicate the same concerns as other cases in which the Supreme Court has found a special need to circumvent the warrant and probable cause requirements. Therefore, by requiring officers to conduct a search of defendant’s home under sole authority of a civil DVPO without a warrant or probable cause, the district court’s order violated defendant’s constitutional rights.