State v. Borders, 236 N.C. App. 149 (Sept. 2, 2014)

In this rape and murder case, no Fourth Amendment violation occurred when an officer seized a cigarette butt containing the defendant’s DNA. The defendant, a suspect in a murder case, refused four requests by the police to provide a DNA sample. Acting with the primary purpose of obtaining a sample of the defendant’s DNA to compare to DNA from the victim’s rape kit, officers went to his residence to execute an unrelated arrest warrant. After the defendant was handcuffed and taken outside to the driveway, an officer asked him if he wanted to smoke a cigarette. The defendant said yes and after he took several drags from the cigarette the officer asked if he could take the cigarette to throw it away for the defendant. The defendant said yes but instead of throwing away the cigarette, the officer extinguished it and placed it in an evidence bag. The DNA on the cigarette butt came back as a match to the rape kit DNA. The court acknowledged that if the defendant had discarded the cigarette himself within the curtilage of the premises, the officers could not have seized it. However, the defendant voluntarily accepted the officer’s offer to throw away the cigarette butt. The court continued, rejecting the defendant’s argument that he had a reasonable expectation of privacy in the cigarette butt. When the defendant, while under arrest and handcuffed, placed the cigarette butt in the officer’s gloved hand—instead of on the ground or in some other object within the curtilage--the defendant relinquished possession of the butt and any reasonable expectation of privacy in it. Finally, although indicating that it was “troubled” by the officers’ trickery, the court concluded that the officers’ actions did not require suppression of the DNA evidence. The court reasoned that because “the police did not commit an illegal act in effectuating the valid arrest warrant and because the subjective motives of police do not affect the validity of serving the underlying arrest warrant,” suppression was not required.