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.