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 it to the officer within the curtilage of his home; and (3) the ruse to obtain his DNA violated the Fourth Amendment. The court of appeals decided earlier this week that the trial court properly denied Borders’ motion.
Voluntarily Turned Over. First, the appellate court determined that the evidence supported the conclusion that Borders voluntarily accepted the officer’s offer to throw the cigarette away. Even if being handcuffed prevented Borders from moving his hands, he could have “spit the cigarette from his mouth into the curtilage,” and have thereby refused the officer’s offer and prevented the officer from collecting it as evidence. See State v. Reed, 182 N.C. App. 109, 110-14 (2007) (holding that trial court erred in admitting DNA evidence obtained from cigarette butt that defendant flicked onto his patio as defendant had a reasonable expectation of privacy on his patio); State v. Rhodes, 151 N.C. App. 208, 215 (2002) (holding that defendant maintained an objectively reasonable expectation of privacy in the contents of his trash can that was within the curtilage of his home and was not placed there for collection in the usual and routine manner).
Next, the court determined that once Borders voluntarily turned over the cigarette butt to the officer, he no longer had a reasonable expectation of privacy as to that item, despite the fact that the two were standing in the carport. Had Borders spit the butt onto the ground, put it in a trash can that was not out for collection, or left it somewhere else in the curtilage of his home, the officer could not have lawfully seized it. However, once Borders, who was handcuffed and in the officer’s custody, permitted the butt to be placed in the officer’s hand, he no longer had a reasonable expectation of privacy in the item.
Trickery. Finally, the court of appeals considered whether the officers’ ruse ran afoul of the Fourth Amendment. Though the court said it was “troubled by the actions of [the investigating officers] in serving the earlier warrant,” it found no basis for suppression of the evidence gathered since the police carried out a valid arrest warrant and their subjective motives for arresting the defendant were not relevant. The court reasoned that Borders voluntarily abandoned the cigarette butt in the course of a lawful arrest; thus, it was properly seized by the officer. Furthermore, the court stated that “deception does not render a defendant’s confession or relinquishment of evidence inadmissible.”
The court intimated that Borders might have argued that the police impermissibly used the outstanding arrest warrant as a general warrant in violation of the prohibition against general warrants in the North Carolina Constitution. See N.C. Const. art. I, § 20. The court said, however, that it was unwilling to evaluate the merits of such a claim since the defendant had not raised the issue. The court further characterized the officers’ actions as “very nearly run[ning] afoul of the general prohibition that the State may not take actions having the effect of violating an individual’s constitutional rights indirectly if they could not take that same action directly.”
Though I enjoy a healthy skepticism about the propriety of police deception, I’m not particularly bothered by the law enforcement tactics in Borders. Arresting a defendant pursuant to a valid warrant strikes me as less arbitrary than, say, stopping a person suspected of more serious crimes for a traffic violation that the police otherwise would ignore. If subjective motives aren’t relevant in the latter context, it is hard for me to understand why they might matter in the former. In hindsight, the arresting officer’s tactics strike me as quite brilliant, particularly given that he had no firm plan in place when he arrived at the residence. He handcuffed the defendant, asked him if he’d like to smoke, provided him with an opportunity to voluntarily hand the cigarette over, and, when the defendant availed himself of that opportunity, was prepared to preserve the evidence.
Although I don’t know the exact facts of the investigation, I can’t help but wonder why they did not approach a prosecutor to obtain a NTO for the suspect’s DNA. Unlike a search warrant, the standard is less than probable cause and only requires reasonable grounds to believe the suspect committed the offense. They obviously had something on him or they would not have spent so much time collecting a cigarette butt and sending it to the SBI for DNA analysis.
I also don’t understand what the defense hoped would happen by winning the appeal to suppress the collection of the cigarette butt. Unlike most suppression wins for defendants where the item seized is the key evidence in itself thus limiting the success rate of a new trial; the State in this case could lose the butt and associated DNA derived from it, but could find another legal way to get his DNA for a retrial such as an NTO and gain a subsequent conviction.
Problem would be a second bite at the apple would bring up the prospect of “the fruit of a poisonous tree”, they would then have to get the NTO or Warrant without any applicable knowledge of what the search would reveal or it could be suppressed as well.
As for the overall investigation, it sounds like it was a good hard nosed investigation w/o much direct evidence to arrest. I do not really have a problem with tactics of the arresting officer but do think it was risky.
For example what if the defendant had said “yeah, put it into that ash tray on the porch”?
Brett,
I am the prosecutor who tried this case. We had no reasonable suspicion or probable cause for a NTO or a search warrant. Mr. Borders’ name was listed in a notebook entitled “suspects” from the original investigation. His name appeared in that book because the neighbor of another elderly lady saw Borders on her porch right before she was found dead. He had no connection to Ms. Tessneer, the victim in this case, at all. The investigators assigned to work the case years later found the “suspect” notebook and decided to ask every person listed in it for a DNA sample. Mr. Borders was the only one who refused. As you know, refusal to give consent alone does not give rise to reasonable suspicion or probable case, but it certainly made the investigators mightily suspicious. Hence the ruse.
chalk another win up for the good guys!!! love the tactics!!! the court finally got it right!
Can’t think of a better time to stop smoking! (Just being facetious). But, kidding aside, when I was an officer I used similar tactics, like dropping a book or writing tablet when speaking with a suspect as a ruse to get him to pick it up, thus leaving a perfect set of latent prints. I have also used the cigarette, soda pop, and coffee tactic for the DNA transfer before. Given voluntarily it is a perfect tactic, not trickery, to obtain vital evidence you need to wrap up the case. The suspect has the right to refuse. But, once you gain their trust or they feel they’ve defeated you, they inevitably let their guard down, and that’s when you GOT ’em! I even resorted to such tactics when an intoxicated couple argued inside and refused to separate for the night. Out of fear that one would hurt the other during an assault (or worse) after I left, I asked one party to step outside and speak with me away from the other party. It worked and I effected an arrest on the subject for public intoxication. It was a win-win ruse and stuck in court. The next morning, after sobering up, they calmed down and were civil to each other. Great tactic!
Hmmm..While your motives may have been laudable, the fact that you ” asked ” a resident out to ” talk “, there by causing the ” public ‘” location to be in play, seems wrong. It is akin to NY police ” asking ” people to empty their pockets, thereby exposing minute amounts of pot, which the person is then arrested for ” public display “, a practice now banned by policy. You know that your ” requests ‘ no doubt said in a stern and commanding tone, are regarded by almost all civilians as an order.
If the person feels they have no real choice, then they have been seized even before they cross the threshhold of their door. You even admit it is a ” ruse “, which tells me that when you are frustrated by the limitations of the law you sinply create an offense…the very definition of entrapment. Of course it stuck in court..likely they plead out..but it is a slippery slope you are skiing down, and if you are freelancing as a creator of crimes, who of us will be safe from your next dance around the intent of the laws?
Welcome to the land of entrapment. The best CONFIDENCE MEN and CON ARTISTS seem to wear badges today.
Sally Kirby-Turner,
Thanks for responding. Very interesting.