Do Not Assume: Court of Appeals of North Carolina Upholds DNA Testing of Discarded Cigarette Butt

On March 5, 2010, a victim was raped in Raleigh, North Carolina. Jason Williford soon became a suspect.

On 15 April 2010, RPD Officer Gary L. Davis…parked his unmarked vehicle in a parking lot directly adjacent to defendant’s multi-unit apartment building while defendant was shopping at a nearby grocery store. When defendant returned, Officer Davis observed defendant smoking a cigarette as he exited his vehicle. Defendant then finished the cigarette and dropped the butt onto the ground in the parking lot. Shortly thereafter, RPD Officer Paul Dorsey…entered the parking lot. Officer Dorsey approached defendant and spoke to him in order to distract him while Officer Davis retrieved the cigarette butt. After securing the butt, the officers left the apartment building.

Subsequent DNA testing revealed that defendant’s DNA was a match for the DNA collected from the rape kit….

Was this proper? According to yesterday’s opinion by the Court of Appeals of North Carolina in State v. Williford, the answer is “yes.”

In his appeal, Williford raised three objections.

Was the search within the curtilage of Williford’s residence?

Williford first claimed that the search violated his rights under the Fourth Amendment because it was a warrantless search of the curtilage of his residence. In response, the court noted that the Supreme Court concluded in United States v. Dunn, 480 U.S. 294, 301 (1987), that the

“curtilage question should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.”

Applying this test to the case at hand, the court found as follows:

In the instant case, the trial court’s unchallenged findings indicate that the shared parking lot where defendant discarded the cigarette butt was located directly in front of defendant’s four-unit apartment building, that the lot was uncovered, that it included five to seven parking spaces used by the four units, and that the spaces were not assigned to particular units. The court further found that the area between the road and the parking lot was heavily wooded, but that there was no gate restricting access to the lot and there were no signs which suggested either that access to the parking lot was restricted or that the lot was private. Applying the Dunn factors to these findings, we conclude that the parking lot was not located in the curtilage of defendant’s building. While the parking lot was in close proximity to the building, it was not enclosed, was used for parking by both the buildings’ residents and the general public, and was only protected in a limited way. Consequently, the parking lot was not a location where defendant possessed “a reasonable and legitimate expectation of privacy that society is prepared to accept.”… Thus, defendant’s constitutional rights were not violated when Officer Davis seized the discarded cigarette butt from the parking lot without a warrant.

Did the defendant retain a possessory interest in the cigarette butt?

Williford also claimed “that even if the parking lot was not considered curtilage, he still maintained a possessory interest in the cigarette butt since he did not put it in a trash can or otherwise convey it to a third party.” The court was easily able to reject this argument, noting that Williford could not have had any reasonable expectation of privacy in the cigarette butt after he dropped it in the parking lot.

Was there compulsory DNA collection and analysis?

Williford’s last argument was “that even if law enforcement lawfully obtained the cigarette butt, they still were required to obtain a warrant before testing the butt for his DNA because defendant had a legitimate expectation of privacy in his DNA.” As support, Williford oddly cited to Maryland v. King, 133 S. Ct. 1958 (2013), which allowed for warrantless DNA testing of individuals arrested for felony offenses. The court therefore noted that King was inapposite and also joined other courts in concluding “that the extraction of DNA from an abandoned item does not implicate the Fourth Amendment.”

-CM