An officer normally needs a search warrant to search a residence, unless an exception to the warrant requirement applies. That’s because residences are protected by a reasonable expectation of privacy under the Fourth Amendment. But what about residences that lie vacant and in disrepair? At what point do they become abandoned such that the reasonable expectation of privacy no longer applies? Continue reading
Tag Archives: abandoned property
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.
Regular readers of this blog know that I’m interested in electronic gadgets. One of my favorites is my Apple iPhone, so I’ve watched with great interest the saga unfolding over at Gizmodo, a leading gadget blog. (This will eventually connect to North Carolina criminal law, I promise.)
The basic facts appear to be as follows: Apple’s working on its next-generation iPhone, which has been rumored to have lots of fantastic new features, like a super-high-resolution screen, a front-facing camera for videoconferencing, etc. An Apple employee — who happens to be an N.C. State alumnus — was field-testing a prototype of the new phone. He went to a bar in Redwood City, California, likely drank a few beers, and accidentally left his phone on his bar stool when he headed out. Another patron picked up the phone, and when the Apple employee didn’t come back, took it home with him. He eventually noticed that it wasn’t a current model iPhone, made some effort to contact Apple about it — more on which below — and after he couldn’t get through to anyone in authority, decided to sell it to Gizmodo for $5,000. Gizmodo examined and disassembled the phone, and posted about it in exhaustive detail. Eventually, Apple asked for the phone back, and Gizmodo agreed to return it.
There’s been some talk about whether Apple will sue Gizmodo under California’s Uniform Trade Secrets Act, which at least one commentator believes “makes it pretty clear that buying a stolen prototype, determining it is authentic and includes valuable information in the form of trade secrets, and then publishing the information to earn money and notoriety for doing so is something that will expose you to legal liability.” Needless to say, I don’t know anything about that. But imagine that this whole saga played out in North Carolina. Could Gizmodo — or whichever employee of Gizmodo actually bought and tinkered with the phone — be prosecuted criminally for possession of stolen goods? I think so.
The starting point for the analysis is whether the phone was, in fact, stolen. Gizmodo might argue that it was not stolen, but found. However, this argument would be unlikely to prevail in light of State v. Moore, 46 N.C. App. 259 (1980). In Moore, the defendant and two friends found a bag marked “Bank of North Carolina” lying on a sidewalk outside a pharmacy. They picked up the bag and split the money they found inside. The defendant was charged with, and convicted of, receiving stolen goods. She argued on appeal that the money was found, not stolen, but the court of appeals affirmed. It held that when a person finds lost property, “the duty of the finder is to keep the property for the purpose of finding the owner,” at least where there is a “clue to ownership,” i.e., some way to determine who the owner is. Furthermore, the finder “must use reasonable means for the purpose of finding the owner.”
Applying this precedent to the Gizmodo situation, the phone clearly was lost at the bar, not abandoned. So the bar patron who found it was obligated to try to return it to its owner. The Gizmodo story says that the patron “called a lot of Apple numbers and tried to find someone who was at least willing to transfer his call to the right person, but no luck. No one took him seriously and all he got for his troubles was a ticket number.” So could Gizmodo argue that the patron did everything required by Moore? And that Apple effectively abandoned the phone by rebuffing the patron’s attempts to return it? Of course, it could argue anything, but I doubt that the argument would work. After all, the patron had apparently seen the Facebook application on the phone, which revealed the specific identity of the Apple employee who had lost the phone. He could have tried contacting the employee several different ways, or could have asked the police to do so. Given that the patron recognized the phone as a prototype, he might also have returned it to Apple directly, by mail or even to a retail store. I doubt that making a few phone calls to “Apple numbers” was enough, though knowing more facts would be helpful. As it stands, given that the patron apparently was playing with the phone, rummaging through its contents, and exploring its features, and that he eventually sold the phone to the highest bidder, one could reasonably question how hard he tried to return the phone.
Assuming that the phone was stolen, the rest of the possession of stolen goods analysis is pretty straightforward. Although Gizmodo claims that it didn’t know the phone was stolen when it bought it, it’s awfully hard to believe that it would have paid $5,000 for the phone unless it believed that it was an authentic Apple prototype. Perhaps Gizmodo could argue that the patron who sold the phone overstated his efforts to return it, in which case, Gizmodo might claim that it reasonably believed that the patron had complied with his duty under Moore and that the phone was effectively abandoned by Apple. But given Apple’s famously tight security for new products, it’s hard to imagine that Gizmodo really thought that Apple didn’t want the prototype back. And in fact, later events demonstrated that Apple did want it back. So it seems to me that a pretty convincing criminal case could be made against Gizmodo under North Carolina law.
I don’t know whether California law is similar, and I don’t know whether Apple or the California authorities are interested in a criminal case. I’m not suggesting that they should be, necessarily. Heck, this whole imbroglio has been nothing but free publicity for Apple, so maybe Steve Jobs is laughing about it over coffee with the Gizmodo staff right now.