Wednesday, March 7, 2007

Trash Might Be Abandoned Property, "Butt" Not If The Detective Kicks It Off The Patio

STATE v. REED, N.C.App. No. COA06-400, http://www.aoc.state.nc.us/www/public/coa/opinions/2007/060400-1.htm , on appeal from Mecklenburg County Superior Court, before Judges Elmore, Hunter, and McCullough, opinion by Elmore, filed 06 Mar 2007.

LONG STORY SHORT: Defendant did not abandon his cigarette butt by tossing it into a trash pile on his own patio, rendering a detective's warrantless seizure of the butt unreasonable and requiring suppression of DNA results. Binding in NC unless reversed by the NC Supreme Court.

FACTS: Two detectives of the Charlotte-Mecklenburg PD visited Defendant at his apartment to investigate a recent burglary and sexual assault. Defendant voluntarily conversed with the detectives while they were all sitting on the patio shared by Defendant and three other tenants. Defendant smoked a cigarette and then tore apart the extinguished butt, mentioning that he watched CSI. Defendant smoked another cigarette while they all continued talking, and threw the still-smoking butt at a pile of trash on his patio. It bounced off and one of the detectives kicked it off the patio, where it landed in the grassy common area. As soon as Defendant went back inside the house, the detective snatched up the butt and took it in for DNA testing. Defendant's DNA matched that of a stain on the victim's shirt. At that apartment complex, tenants were individually responsible for taking their trash to a common dumpster.

PROCEDURE: North Carolina indicted Defendant in Mecklenburg County Superior Court for first-degree burglary, second-degree sexual offense, and common-law robbery (aka "strong-arm robbery"). Defendant moved to suppress the cigarette butt and DNA evidence as the fruit of an unreasonable warrantless and nonconsensual search in violation of the Fourth Amendment. MOTION TO SUPPRESS DENIED. North Carolina introduced the DNA evidence at trial and the jury convicted Defendant of burglary and sexual offense, acquitting him of robbery. Defendant appealed to the Court of Appeals of North Carolina, arguing that the trial court should have suppressed the DNA evidence.

DECISION: One of the few exceptions to the warrant requirement is a search and seizure of abandoned property. Trash placed outside the curtilage and ready for curbside pickup is pretty clearly "abandoned." Less so is trash left in an area where a person has a reasonable expectation of privacy. Here, the patio was part of Defendant's home even if three other tenants shared it, and he had a reasonable expectation of privacy. Precedent holding trash to be abandoned nearly always depended on the trash in question being at least placed where sanitation workers regularly picked it up, and preferably already in the truck, when police searched or seized it. Defendant had no such service at his apartment.

Though the detective picked up the butt after it landed in the common area outside Defendant's curtilage, Defendant did not throw it there. Defendant aimed for the trash pile and even though he missed it, the butt came to rest on his patio, where he had a reasonable expectation of privacy. Only then did the detective kick the butt out of the curtilage and furtively pick it up when he knew Defendant was not looking. This raises an inference that the detective knew Defendant would not consent to seizure of the butt and that seizure of anything still on the patio would be illegal. Property is not abandoned if the police move it from private to public areas. Defendant's constitutional right against unreasonable search and seizure was violated and the evidence should have been suppressed. NEW TRIAL.

EDITORIAL: This is a classic case of a criminal getting off on a technicality--except that it's not a technicality to be free from unreasonable search and seizure, it's part of the Constitution, and the only way to enforce this right is to have something bad happen to the state when they break it. And this criminal might not get off in the end. Now that Char-Meck KNOWS who did it, there are other ways of proving identity, such as the victim's testimony. That's how prosecutors worked for millions of years before DNA testing was around to help them. Hopefully, this guy will still go down, and we've learned a relatively painless lesson in when trash isn't all that trashy.

I don't blame the detectives for trying to help a dead cigarette get to where it needs to be, "butt" now that we know you can't do it that way, next time you can ask to keep the butt ("if you didn't do it, this will prove it for sure"). Based on the guy's CSI comment, you could also try for a search warrant, since he wouldn't have said that without some kind of guilty conscience. You can certainly follow the guy around until he leaves some legitimate trash. Come to think of it, Char-Meck can do that right now. If he's still in jail, it's even easier. Yeah, he'll go down.

A "Mention in Despatches" to Daniel J. Clifton for just-right appellate advocacy. He raised only one issue, unreasonable seizure, and argued it well, instead of drowning everybody in paper trying to argue eighteen crummy issues. And shazam, he won a unanimous reversal. Could be some relationship between good form and good result.

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