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Search and Seizure_cigarette butt_thrown down on patio_within curtilage_reasonable
expectation of privacy
The trial court erred by denying defendant's motion to suppress a cigarette butt containing
DNA evidence where officers obtained the butt after defendant asked for time to consider giving
a DNA sample, continued the interview on his apartment patio, threw the butt toward a trash pile
on the patio, and an officer kicked it into a common area for later retrieval. Defendant had a
reasonable expectation of privacy in his home, the patio was part of his home, one cannot
abandon property within the curtilage of one's own home, and the only time the cigarette left
defendant's property was through the officer's actions.
Attorney General Roy Cooper, by Assistant Attorney General
Tina A. Krasner, for the State.
Daniel J. Clifton, for defendant-appellant.
ELMORE, Judge.
Blake J. Reed (defendant) appeals an order of the trial court,
entered 31 May 2005, denying his motion to suppress DNA-related
evidence. Because we find that the trial court erred in its denial
of the motion, we reverse the trial court's order and grant
defendant a new trial.
On 10 March 2003, defendant was indicted for first-degree
burglary, second-degree sexual offense, and common law robbery. On
15 August 2005, a jury found defendant guilty of first-degree
burglary and second-degree sexual offense, and not guilty of commonlaw robbery. In connection with the investigation of the alleged
crimes, police officers obtained a cigarette butt with defendant's
DNA on it. This DNA evidence was admitted over defendant's motion
to suppress in an order entered 31 May 2005. It is from this order
that defendant now appeals.
On 28 January 2003, two detectives from the Charlotte-
Mecklenburg Police Department arrived at defendant's apartment to
follow up with defendant, whom they had met on 23 January 2003 as
part of their investigation. The detectives requested that
defendant provide a DNA sample. He initially stated that he was
willing to provide one, but then reconsidered, requesting 24 hours
to decide.
During this conversation, a young woman entered the apartment
and the detectives requested that the interview continue in a more
private setting. Defendant led the detectives to a small patio in
the back of the apartment. Defendant lit a cigarette, smoked it,
and put it out. He then took apart the butt, removing the filter's
wrapper and shredding the filter before placing the remains in his
pocket. As he did so, defendant mentioned watching the popular
network television police procedural, CSI: Crime Scene
Investigation.
The conversation continued, and defendant lit another
cigarette. After he finished this cigarette, he flicked the butt
at a pile of trash located in the corner of the concrete patio.
The butt struck the pile of trash and rolled between defendant and
one of the detectives, who kicked the butt off of the patio intothe grassy common area. The conversation ended and the detective,
who had kept his eye on the still-burning cigarette butt, retrieved
the butt after his partner and defendant turned to go back inside
the apartment.
After testing, the State presented evidence that the DNA
sample taken from the cigarette butt matched that taken from a
stain found on the alleged victim's shirt. At trial, defendant
moved to suppress this evidence on the grounds that it was the
fruit of an unconstitutional search and seizure. The trial court
denied defendant's motion, and defendant was subsequently
convicted. Defendant now appeals the order denying his motion to
suppress.
Defendant's sole argument on appeal is that the cigarette butt
containing the DNA evidence was seized on the basis of a
warrantless, non-consensual search of an area in which defendant
had a reasonable expectation of privacy. Because we find that
defendant did have a reasonable expectation of privacy on his
patio, we hold that the search and seizure carried out by the
Charlotte-Mecklenburg Police was unconstitutional and that the
trial court therefore erred in denying defendant's motion to
suppress.
Defendant relies extensively on State v. Rhodes, 151 N.C. App.
208, 565 S.E.2d 266 (2002), disc. review denied, 356 N.C. 173, 569
S.E.2d 273 (2002). In Rhodes, this Court addressed a case in which
“[w]ithout a warrant, [police] seized marijuana from [an] outside
trash can located beside the steps that led to the side-entry doorto [the] defendant's house.” Rhodes, 151 N.C. App. at 213, 565
S.E.2d at 269. After noting that both the United States and North
Carolina Constitutions protect citizens from unreasonable searches
and seizures, see U.S. Const. amend. IV; N.C. Const. Art. I, § 20,
we quoted the Supreme Court of the United States for the
proposition that “'[s]earches conducted outside the judicial
process, without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment -- subject only to a few
specifically established and well-delineated exceptions.'” Rhodes,
151 N.C. App. at 213, 565 S.E.2d at 269 (quoting Katz v. United
States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 585 (1967)).
One such exception, outlined by the United States Supreme
Court in California v. Greenwood, allowed police to conduct a
warrantless search of garbage “left for regular curbside
collection.” 486 U.S. 35, 39, 100 L. Ed. 2d 30, 36 (1988). The
Supreme Court reasoned that society would not accept as
“objectively reasonable” any claimed “subjective expectation of
privacy in [the defendant's] garbage” where the garbage was
“readily accessible to animals, children, scavengers, snoops, and
other members of the public.” Id. at 39-40, 100 L. Ed. 2d at
36-37.
Likewise, when our own state Supreme Court addressed a similar
issue, it held that “a reasonable expectation of privacy is not
retained in garbage simply by virtue of its location within the
curtilage of a defendant's home.” State v. Hauser, 342 N.C. 382,
386, 464 S.E.2d 443, 446 (1995). The State latches on to thisassertion and seeks to rely on it. However, it ignores our Supreme
Court's extended discussion in that case. In fact, the Supreme
Court based its conclusion on the fact that “[the] garbage was
picked up by the regular garbage collector, in the usual manner and
on the scheduled collection day. No one other than those
authorized by defendant entered defendant's property, and no
unusual procedures were followed other than to keep defendant's
garbage separate.” Id. at 388, 464 S.E.2d at 447. Indeed, the
Hauser court explicitly noted that “the defendant may have retained
some expectation of privacy in garbage placed in his backyard out
of the public's view, so as to bar search and seizure by the police
themselves entering his property.” Id.
In its brief, the State also purports to apply the three
factors relied on by our Supreme Court in Hauser. This, too, is
unpersuasive. The State enumerates the factors as follows: “(1)
the location of the garbage; (2) the extent to which the garbage
was exposed to the public or out of the public's view; and (3)
'whether the garbage was placed for pickup by a collection service
and actually picked up by the collection service before being
turned over to police.'” See Hauser, 342 N.C. at 386, 464 S.E.2d
at 446.
In addressing the first factor, the State makes much of the
fact that defendant did not actually place his cigarette butt into
the garbage, but rather threw it in the general direction of the
pile. However, the State stops short of claiming that defendant
threw the cigarette off of his property. Indeed, the Stateconcedes that “[t]he officer noticed the butt rolling toward him
and kicked it toward the grassy area.” It is apparent that the
only time the cigarette ever left defendant's property was through
the officer's actions.
The State goes on to address the second factor, claiming:
“[T]he patio area was shared by four tenants, including defendant.
The patio is surrounded by a large common grassy area that adjoins
a parking lot.” The State then asserts, without further
discussion, that “[b]ased on these factors, defendant could not
have retained a legitimate expectation of privacy in the cigarette
butt.” At the outset, we note that the fact that an area is shared
with co-tenants is insufficient to remove a defendant's expectation
of privacy. See, e.g., Georgia v. Randolph, ___ U.S. ___, ___, 164
L. Ed. 2d 208, 221 (2006) (stating that if a houseguest has an
expectation of privacy, “it presumably should follow that an
inhabitant of shared premises may claim at least as much, and it
turns out that the co-inhabitant naturally has an even stronger
claim.”). Further, although it is true that the patio abuts a
common area, there is no doubt that the patio itself was part of
defendant's home. Moreover, absent the detective's care in noting
the butt's specific location, there is no reason to believe that
anyone would be able, or have reason, to distinguish this cigarette
butt from the many others in the grassy area.
Finally, the State failed even to address the third factor
that it identified from the Hauser decision. It is clear that at
no time was the cigarette butt placed for pickup by a collectionservice, nor was it ever actually collected by such a service. To
the contrary, the uncontroverted evidence is that tenants were
responsible for bringing their own trash to dumpsters provided by
the apartment complex. The cigarette butt was removed directly by
the detective, who was acting in his role as a police officer.
Even more importantly, this Court recently held in Rhodes that
“because the trash can was within the curtilage of [the]
defendant's home and because the contents of the trash can were not
placed there for collection in the usual and routine manner, [the]
defendant maintained an objectively reasonable expectation of
privacy in the contents of his trash can.” Rhodes, 151 N.C. App.
at 215, 565 S.E.2d at 271. The same analysis should apply in the
present case.
“In North Carolina, 'curtilage of the home will ordinarily be
construed to include at least the yard around the dwelling house as
well as the area occupied by barns, cribs, and other
outbuildings.'” Id. at 214, 565 S.E.2d at 270 (quoting State v.
Frizzelle, 243 N.C. 49, 51, 89 S.E.2d 725, 726 (1955)). Here, the
patio was directly connected to defendant's apartment and covered
from the apartment above by a tarp. This is clearly within the
curtilage of defendant's home.
The fact that the cigarette butt was removed from the
curtilage when one of the detectives kicked the butt off of the
patio fails to defeat defendant's reasonable expectation of
privacy. Additionally, the furtive nature of the seizure raises a
suspicion that the detective was aware that defendant would notconsent to his taking the butt and that the detective knew that a
seizure of the butt would be illegal so long as it was on the
patio. It is possible that had defendant placed the cigarette butt
in the common area, he may have lost his reasonable expectation of
privacy; the police may not, however, by removing evidence from the
curtilage, proceed as if the evidence had been left open to the
public by defendant.
The State attempts to distinguish Rhodes, essentially claiming
that by flicking the cigarette butt, defendant discarded it and
therefore lost his reasonable expectation of privacy.
(See footnote 1)
We find
this argument unpersuasive. If a defendant has a reasonable
expectation of privacy in refuse placed in a garbage can and set
outside the home, as in Rhodes, a defendant should be equally
secure throwing a cigarette butt in a trash pile immediately behind
his home. The fact that the State echoes the trial court's
language, referring to the cigarette butt as “littered,” does not
change the underlying analysis.
In short, the State's attempts to distinguish Rhodes are
unpersuasive. The State fails even to meet the factors it set out
for itself to succeed under Hauser. Therefore, we apply Rhodes and
hold that defendant had a reasonable expectation of privacy, that
the search and seizure thus violated defendant's constitutionalrights, and that the trial court erred in denying defendant's
motion to suppress.
Though the State touches on it only briefly in its arguments,
we note that the trial court relied on the abandoned property
exception to defendant's Fourth Amendment protections. Because we
believe that the facts of the present case fall well outside this
exception, we decline to apply it in this case.
It is true that this Court has stated that “[t]he protection
of the Fourth Amendment does not extend to abandoned property.”
State v. Cromartie, 55 N.C. App. 221, 225, 284 S.E.2d 728, 730
(1981). While this continues to be the rule in North Carolina, we
cannot agree that the cigarette butt in this case was abandoned.
We note that the trial court in Cromartie stated that “defendant
could not have had any reasonable, legitimate expectation of
privacy regarding the possession of said item after he discarded
the same on a public street.” Id. at 223, 284 S.E.2d 728, 730
(emphasis added). Moreover, in the Cromartie decision, this Court
relied, at least in part, on a Minnesota decision in which that
state's supreme court stated, “Where . . . the discard occurs in a
public place . . . the property will be deemed abandoned for
purposes of search and seizure.” Id. at 224, 284 S.E.2d 728, 730
(quoting City of St. Paul v. Vaughn, 306 Minn. 337, 346-47, 237
N.W. 2d 365, 370-371 (1975)) (emphasis added). We therefore
believe that for abandonment to occur, the discarding of property
must occur in a public place; one simply cannot abandon property
within the curtilage of one's own home. Defendant had a reasonable expectation of privacy in his home.
The search and seizure as conducted by the police therefore
violated defendant's constitutional rights, and the trial court's
denial of defendant's motion to suppress was in error.
Accordingly, we reverse the trial court's order and grant defendant
a new trial.
New trial.
Judges HUNTER and McCULLOUGH concur.
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