State v. Borders: Clever Police Work or Disturbing Trickery?

Detectives investigating the rape and murder of an elderly woman in Shelby didn’t give up when suspect Donald Borders first refused to provide a sample of his DNA.  They asked again.  And again.  And again.  When Borders refused to relent after four visits to his home, investigators tried a different tack. They searched the county’s warrant repository and located a warrant for the defendant’s arrest on the misdemeanor charge of assault on a female that had been outstanding for two years. They asked another officer to serve the warrant, and, more importantly, to collect a sample of Border’s DNA in the process.  The arresting officer arrived at Borders’ home at 2 a.m., arrested Borders, and then offered him a cigarette.  After Borders took a few puffs while standing in his carport, the officer asked Borders if he wanted him to “take that and throw it away.”  Borders assented.  The officer took the cigarette from Borders’ mouth, extinguished it, and placed it in an evidence bag.  The ruse worked:  DNA collected from the cigarette butt matched the DNA profile derived from a swab in the victim’s sexual assault kit.  Borders was charged with and convicted of the rape and murder. State v. Borders. Borders argued at trial and on appeal that the evidence of his DNA profile should be suppressed as he (1) did not willfully relinquish control of the cigarette butt to the officer; (2) had a reasonable expectation of privacy in the cigarette butt and the DNA since he gave [...]