Opinion
No. COA95-946
Filed 4 June 1996
Appeal and Error § 93 (NCI4th); Searches and Seizures § 143 (NCI4th) — administrative search warrant — validity — not immediately appealable The denial of a motion to quash an administrative search warrant was not immediately appealable. Administrative search warrants are analogous to discovery requests and, in civil cases, orders compelling discovery are generally not appealable until entry of a final order. It follows that the validity of administrative search warrants is generally not a matter for the appellate courts until the entry of a final order; however, the validity of the warrants can be immediately addressed on appeal upon a showing that a substantial right is affected. In this case, there has been no final order and Galvan has made no showing that any substantial right is affected.
Am Jur 2d, Appellate Review §§ 135, 137, 139, 140.
Appealability of discovery order as "final decision" under 28 USCS sec. 1291. 36 ALR Fed. 763.
Appeal by petitioner Galvan Industries, Inc., from order entered 6 June 1995 in Cabarrus County Superior Court by Judge James C. Davis. Heard in the Court of Appeals 23 April 1996.
Blakeney Alexander, by Richard F. Kane and Robert B. Meyer, for petitioner-appellant Galvan Industries, Inc.
Attorney General Michael F. Easley, by Special Deputy Attorney General Ralf F. Haskell and Associate Attorney General John C. Sullivan, for the State.
Judge MARTIN, Mark D., concurring.
Galvan Industries, Inc. (Galvan) appeals from the 6 June 1995 order of the trial court, which denied Galvan's motion to quash an administrative inspection warrant.
On 15 May 1995, the Cabarrus County Superior Court issued an Administrative Inspection Warrant, pursuant to N.C. Gen. Stat. § 15-27.2, for the purposes of conducting an inspection authorized by the Occupational Safety and Health Act of North Carolina. That same day, Galvan made a motion to quash this administrative warrant, which was denied by the trial court on 6 June 1995.
The dispositive issue is whether this appeal must be dismissed as interlocutory.
Administrative search warrants are analogous to discovery requests, as they are for the purpose of discovering facts and obtaining evidence, N.C.G.S. § 15-27.2(f) (1983), a purpose akin to discovery, N.C.G.S. § 1A-1, Rule 26 (1990), and refusal to honor an administrative search warrant subjects an agency to contempt, Brooks, Comm'r of Labor v. Taylor Tobacco Enters., Inc., 39 N.C. App. 529, 531, 251 S.E.2d 656, 657, rev'd on other grounds, 298 N.C. 759, 260 S.E.2d 419 (1979), just as refusal to comply with discovery requests subjects a party to sanctions. N.C.G.S. § 1A-1, Rule 37 (1990).
Because the situations are analogous, it is proper to apply the law regarding the appealability of discovery issues in determining the appealability of administrative search warrants. In civil cases, because orders compelling discovery are generally not appealable until entry of a final order, Benfield v. Benfield, 89 N.C. App. 415, 418, 366 S.E.2d 500, 502 (1988), it follows that the validity of administrative search warrants are generally not matters for the appellate courts until the entry of a final order. The validity of the warrants can, however, be immediately addressed on appeal upon a showing of a substantial right. S ee Taylor Tobacco Enters., Inc., 39 N.C. App. at 531, 251 S.E.2d at 657 (allowing appeal from contempt proceedings for failure to comply with administrative search warrants) .
In this case, there has been no final order entered and Galvan has made no showing that any substantial right is affected. See Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990) (discussing appealability of interlocutory orders). Indeed, Galvan retains the right to move to suppress any "facts discovered or evidence obtained" on the basis that "the warrant is invalid or if what is discovered or obtained is" not within the scope of the warrant. See N.C.G.S. § 15-27.2(f).
We need not decide in this case whether the denial of the motion to suppress evidence obtained on the basis of an alleged invalid administrative warrant is immediately appealable. We do note that in the context of the criminal law, the denial of a motion to suppress is not immediately appealable. State v. Grogan, 40 N.C. App. 371, 375, 253 S.E.2d 20, 23 (1979).
Appeal dismissed.
Judge JOHN concurs.
Judge MARTIN, Mark D., concurs with separate opinion.