NC: Officer who made illegal entry was not discharging “official duty” when he was assaulted

“As a warrant was required for the officers to lawfully enter the home, and no warrant had been issued when the officers entered the home and encountered Defendant, the officers’ entry into the home was unlawful. Thus, the State failed to prove that the officers whom Defendant resisted were discharging or attempting to discharge an official duty at the time they encountered Defendant, see Sinclair, 191 N.C. App. at 489, 663 S.E.2d at 870, and the trial court erred by denying Defendant’s motion to dismiss.” Henderson Cty. v. Peacock, 2023 N.C. App. LEXIS 731 (Nov. 21, 2023).*

“Here, the record establishes that defendant consented to the search of his vehicle with the understanding that, if he refused, the detective would obtain a warrant and search the vehicle anyway, and that in the meantime the vehicle would be detained at the scene. We note that a suspect’s consent to search that is based on threatened action by the police is deemed voluntary only where there are valid legal grounds for the threatened action.” Here, there was nothing close to probable cause for defendant’s stop. The police had vague information from a CI but, essentially, what defendant did didn’t match anything a drug courier would do so there was zero corroboration [one could say it all could have disproved the CI’s tale, but maybe that’s going too far]. People v. Barner, 2023 NY Slip Op 05839, 2023 N.Y. App. Div. LEXIS 5901 (4th Dept. Nov. 17, 2023).*