NCJ Number
62952
Date Published
1978
Length
4 pages
Annotation
NORTH CAROLINA LAW ON THE SHERIFF'S AUTHORITY TO BREAK AND ENTER WHEN EXECUTING CIVIL PROCESS IS DISCUSSED; EXCEPTIONS TO THE PROHIBITION ON BREAKING AND ENTERING ARE EMPHASIZED.
Abstract
AT THE COMMON LAW, IT WAS UNLAWFUL FOR A SHERIFF TO BREAK AND ENTER A DWELLING TO SERVE A CIVIL WRIT OR PROCESS. THE RULE IS BASED ON THE PREMISE THAT EVERY MAN'S HOME IS HIS CASTLE AND FORTRESS TO PROTECT HIM AGAINST INJURY AND VIOLENCE AND TO PROVIDE HIM WITH A PLACE FOR REPOSE. IN THE ABSENCE OF A STATUTE TO THE CONTRARY, THE COMMON LAW RULE STILL PREVAILS. SEVERAL NORTH CAROLINA CASES, SUCH AS STATE V. ARMFIELD (1822), APPLY THIS COMMON LAW RULE. TWO EXCEPTIONS TO THE RULE EXIST WHICH ALLOW AN OFFICER TO BREAK AND ENTER FOR THE PURPOSE OF EXECUTING CIVIL PROCESS. A SHERIFF HAS ALWAYS BEEN AUTHORIZED TO BREAK AND ENTER TO EXECUTE A WRIT OF POSSESSION OF REAL PROPERTY OR ORDER OF EJECTMENT. THESE WRITS ARE ISSUED AFTER A JUGMENT TO EVICT A TENANT FROM PROPERTY OR AN ACTION TO QUIET TITLE. THE SECOND EXCEPTION PROVIDES THAT IN EXECUTING A CLAIM AND DELIVERY ORDER OF SEIZURE, IF THE PROPERTY IS CONCEALED IN A BUILDING OR ENCLOSURE, THE SHERIFF MAY BREAK AND ENTER. THE COMMON LAW PROHIBITION APPLIES ONLY TO A DWELLING; IT DOES NOT EXTEND TO ALL BUILDINGS. CONFLICTING INTERPRETATIONS OF THE LAW EXIST REGARDING CHARGES OF CONTEMPT OF COURT IF THE PERSON REFUSES AND RESISTS THE SHERIFF'S ENTRY AND REGARDING THE SHERIFF'S USE OF FORCE ONCE INSIDE THE DWELLING IN EXECUTING THE WRIT. FOOTNOTES ARE INCLUDED IN THE MEMORANDUM. (LWM)