NO. COA14-50
NORTH CAROLINA COURT OF APPEALS
Filed: 6 January 2015
STATE OF NORTH CAROLINA
v. Wake County
Nos. 10 CRS 225; 5855-56
JASON KEITH WILLIFORD
Appeal by defendant from judgments entered 7 June 2012 by
Judge Paul G. Gessner in Wake County Superior Court. Heard in
the Court of Appeals 13 August 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Anne M. Middleton, for the State.
Law Offices of John R. Mills NPC, by John R. Mills, for
defendant-appellant.
CALABRIA, Judge.
Jason Keith Williford (“defendant”) appeals from judgments
entered upon jury verdicts finding him guilty of first degree
murder, first degree rape, and misdemeanor breaking and
entering. We find no error.
I. Background
Late in the evening on 5 March 2010, defendant broke into
the home of John Geil (“Geil”) in Raleigh, North Carolina. On
-2-
that date, Kathy Taft (“Taft”) and her sister, Dina Holton
(“Holton”), were staying in Geil’s home while Taft recovered
from a recent surgery. Geil was out of town, and so the two
women were in his home alone.
Defendant entered Taft’s bedroom and struck her in the head
with a blunt object multiple times. He then removed her
clothing and raped her before exiting the home. Holton heard
noises in the house during the night, but did not discover what
had happened to Taft until the next morning.
In the morning on 6 March 2010, Holton went to the bedroom
where she had last seen Taft, and she discovered Taft completely
nude and bleeding from the head. Holton called 911, and
emergency medical services transported Taft to the hospital. At
the hospital, a nurse noticed signs of trauma around Taft’s
vagina and blood on her anus. As a result, hospital personnel
collected a rape kit in order to obtain DNA samples. Taft
underwent emergency neurosurgery, but ultimately died from her
head wounds on 9 March 2010.
The DNA samples from the rape kit were tested and
determined to contain male DNA. As a result, law enforcement
officers from the Raleigh Police Department (“RPD”) canvassed
the area around Geil’s home and attempted to obtain DNA samples
-3-
from male residents. When RPD Detective Zeke Morris (“Det.
Morris”) reached the home of defendant, who lived nearby,
defendant did not invite Det. Morris inside, as all of his
neighbors had done, but only spoke briefly with him. Det.
Morris returned later to seek a sample of defendant’s DNA, and
defendant refused to provide the sample.
After defendant’s refusal, members of the RPD Fugitive Unit
began conducting surveillance on him in an attempt to obtain his
DNA. On 15 April 2010, RPD Officer Gary L. Davis (“Officer
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 (“Officer
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 and from the crime
-4-
scene. Consequently, defendant was arrested and indicted for
first degree murder, first degree rape and first degree
burglary. On 16 December 2010, the State notified defendant
that it intended to rely upon evidence of aggravating
circumstances and seek a sentence of death for the charge of
first degree murder.
On 26 August 2011, defendant filed a motion to suppress the
DNA evidence which was collected from the cigarette butt
recovered from the parking lot. In his motion, defendant
contended that the cigarette butt was discarded in an area which
constituted the curtilage of his apartment and that defendant
never surrendered his privacy interest in the cigarette butt.
Defendant argued that under these circumstances, Officer Davis’s
retrieval and subsequent analysis of the cigarette butt without
a warrant violated his constitutional rights.
Defendant’s motion was heard on 20 February 2012. On 9
March 2012, the trial court entered an order denying the motion
to suppress. The court concluded that the parking lot where
Officer Davis recovered the cigarette butt was outside the
curtilage of defendant’s apartment and that defendant had
voluntarily discarded it.
-5-
Defendant was tried by a jury beginning 16 May 2012 in Wake
County Superior Court. On 1 June 2012, the jury returned
verdicts finding defendant guilty of first degree murder, first
degree rape, and the lesser-included offense of misdemeanor
breaking and entering. On 7 June 2012, the jury recommended
that defendant be sentenced to life imprisonment without the
possibility of parole. Based upon this recommendation, the
trial court sentenced defendant to life without parole for the
first degree murder charge. Defendant also received a
consecutive sentence of a minimum of 276 months to a maximum of
341 months for the first degree rape charge and a concurrent
sentence of 45 days for the misdemeanor breaking and entering
charge. Defendant appeals.
II. Motion to Suppress
Defendant argues that the trial court erred by denying his
motion to suppress the DNA evidence obtained from the discarded
cigarette butt. Specifically, defendant contends: (1) that the
cigarette butt was discarded in the curtilage of his dwelling;
(2) that he never abandoned his possessory interest in the
cigarette butt; and (3) that the DNA on the cigarette butt was
improperly tested without a warrant. We disagree.
-6-
Our review of a trial court’s denial of a motion to
suppress is “strictly limited to determining whether the trial
judge’s underlying findings of fact are supported by competent
evidence, in which event they are conclusively binding on
appeal, and whether those factual findings in turn support the
judge’s ultimate conclusions of law.” State v. Cooke, 306 N.C.
132, 134, 291 S.E.2d 618, 619 (1982). Since defendant does not
challenge any of the trial court’s findings, “our review is
limited to the question of whether the trial court’s findings of
fact, which are presumed to be supported by competent evidence,
support its conclusions of law and judgment.” State v. Downing,
169 N.C. App. 790, 794, 613 S.E.2d 35, 38 (2005).
A. Curtilage
Defendant first argues that Officer Davis’s seizure of the
cigarette butt violated his constitutional rights because it
occurred within the curtilage of his apartment. “Both the
United States and North Carolina Constitutions protect against
unreasonable searches and seizures.” State v. Otto, 366 N.C.
134, 136, 726 S.E.2d 824, 827 (2012) (citing U.S. Const. amend.
IV; N.C. Const. art. I, § 20). “Because an individual
ordinarily possesses the highest expectation of privacy within
the curtilage of his home, that area typically is ‘afforded the
-7-
most stringent Fourth Amendment protection.’” State v. Lupek,
214 N.C. App. 146, 151, 712 S.E.2d 915, 919 (2011) (quoting
United States v. Martinez-Fuerte, 428 U.S. 543, 561, 49 L. Ed.
2d 1116, 1130, 96 S. Ct. 3074, 3084 (1976)).
“The United States Supreme Court has . . . defined the
curtilage of a private house as ‘a place where the occupants
have a reasonable and legitimate expectation of privacy that
society is prepared to accept.’” State v. Washington, 134 N.C.
App. 479, 483, 518 S.E.2d 14, 16 (1999) (quoting Dow Chemical
Co. v. United States, 476 U.S. 227, 235, 90 L. Ed. 2d 226, 235,
106 S. Ct. 1819, 1825 (1986)). The United States Supreme Court
has further established 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.” United States v. Dunn, 480 U.S. 294, 301,
94 L. Ed. 2d 326, 334-35, 107 S. Ct. 1134, 1139 (1987).
Although this Court has previously utilized the Dunn
factors to determine whether certain areas are located within a
property’s curtilage, see, e.g., State v. Washington, 86 N.C.
-8-
App. 235, 240-42, 357 S.E.2d 419, 423-24 (1987), we have never
done so in the specific context of multi-unit dwellings. A
federal appeals court which considered this issue in that
context noted that “[i]n a modern urban multi-family apartment
house, the area within the ‘curtilage’ is necessarily much more
limited than in the case of a rural dwelling subject to one
owner’s control.” United States v. Cruz Pagan, 537 F.2d 554,
558 (1st Cir. 1976). This is because “none of the occupants can
have a reasonable expectation of privacy in areas that are also
used by other occupants.” State v. Johnson, 793 A.2d 619, 629
(N.J. 2002) (internal quotation and citation omitted).
Thus, in United States v. Stanley, the United States Court
of Appeals for the Fourth Circuit held that “the common area
parking lot on which [the defendant]’s automobile was parked was
not within the curtilage of his mobile home.” 597 F.2d 866, 870
(4th Cir. 1979). In reaching this conclusion, the Stanley Court
relied upon the following factors: (1) that “[t]he parking lot
was used by three other tenants of the mobile home park;” (2)
that the parking lot “contained parking spaces for six or seven
cars. No particular space was assigned to any tenant;” and (3)
that “[a]lthough on the day of the search the Cadillac was
parked in a space close to [the defendant]’s home, that space
-9-
was not annexed to his home or within the general enclosure
surrounding his home.” Id. Other courts have also reached the
same conclusion based upon similar facts. See, e.g., Cruz
Pagan, 537 F.2d at 558 (“In sum, we hold that the agents’ entry
into the underground parking garage of El Girasol Condominium
did not violate the fourth amendment. . . .”); United States v.
Soliz, 129 F.3d 499, 503 (9th Cir. 1997) (Common parking area in
an apartment complex which “was a shared area used by the
residents and guests for the mundane, open and notorious
activity of parking” was not curtilage.), overruled on other
grounds by United States v. Johnson, 256 F.3d 895, 913 n.4 (9th
Cir. 2001) (en banc); Commonwealth v. McCarthy, 705 N.E.2d 1110,
1114 (Mass. 1999) (“Because the defendant had no reasonable
expectation of privacy in the visitor’s parking space, the space
was not within the curtilage of the defendant’s apartment.”);
and State v. Coburne, 518 P.2d 747, 757 (Wash. Ct. App. 1973)
(“The vehicle was parked in an alley parking lot available to
all users of the apartments. The area where the car was parked
is not a ‘curtilage’ protected by the Fourth Amendment.”). But
see Joyner v. State, 303 So.2d 60, 64 (Fla. Dist. Ct. App. 1974)
(holding that “parking areas usually and customarily used in
common by occupants of apartment houses, condominiums and other
-10-
such complexes with other occupants thereof constitute a part of
the curtilage of a specifically described apartment or
condominium or other living unit thereof”).
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.” Washington, 134 N.C. App.
-11-
at 483, 518 S.E.2d at 16 (internal quotation and citation
omitted). Thus, defendant’s constitutional rights were not
violated when Officer Davis seized the discarded cigarette butt
from the parking lot without a warrant. This argument is
overruled.
B. Possessory Interest
Defendant next contends 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. However, it
is well established that “[w]here the presence of the police is
lawful and the discard occurs in a public place where the
defendant cannot reasonably have any continued expectancy of
privacy in the discarded property, the property will be deemed
abandoned for purposes of search and seizure.” State v.
Cromartie, 55 N.C. App. 221, 224, 284 S.E.2d 728, 730 (1981)
(internal quotations, citation, and brackets omitted).
Moreover, “[w]hen one abandons property, ‘[t]here can be nothing
unlawful in the Government’s appropriation of such abandoned
property.’” Id. at 225, 284 S.E.2d at 730. (quoting Abel v.
United States, 362 U.S. 217, 241, 4 L. Ed. 2d 668, 687, 80 S.
Ct. 683, 698 (1960)). In the instant case, we have already
-12-
determined that defendant had no reasonable expectation of
privacy in the parking lot, and thus, by dropping the cigarette
butt in the lot, he is deemed to have abandoned any interest in
it. This argument is overruled.
C. DNA Testing
Finally, defendant argues 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.
Defendant cites Maryland v. King, ___ U.S. ___, 186 L. Ed. 2d
1, 133 S. Ct. 1958 (2013) in support of his argument. In King,
the United States Supreme Court considered whether the
warrantless, compulsory collection and analysis of a DNA sample
from individuals who had been arrested for felony offenses
violated the Fourth Amendment. Id. at ___, 186 L. Ed. 2d at 17,
133 S. Ct. at 1966. The Court held that this warrantless search
was reasonable because of the state’s significant interest in
accurately identifying the arrestee. Id. at ___, 186 L. Ed. 2d
at 32, 133 S. Ct. at 1980.
King is inapplicable to the instant case. In King, the
defendant’s DNA sample had been directly obtained by law
enforcement in a compulsory seizure that was indisputably a
-13-
Fourth Amendment search. The King Court only decided whether
that search was reasonable. In contrast, in this case,
defendant had abandoned his interest in the cigarette butt,
without any compulsion from law enforcement, and thus, we must
first determine whether the extraction of defendant’s DNA from
the abandoned butt constituted a search at all. This Court has
specifically held that “[t]he protection of the Fourth Amendment
against unreasonable searches and seizures does not extend to
abandoned property.” State v. Eaton, 210 N.C. App. 142, 148,
707 S.E.2d 642, 647 (2011). While we have not yet applied this
general principle to the retrieval of DNA from abandoned
property, courts in other jurisdictions have relied upon it to
conclude that the extraction of DNA from an abandoned item does
not implicate the Fourth Amendment. See, e.g., People v.
Gallego, 117 Cal. Rptr. 3d 907, 913 (Cal. Ct. App. 2010) (“By
voluntarily discarding his cigarette butt on the public
sidewalk, defendant actively demonstrated an intent to abandon
the item and, necessarily, any of his DNA that may have been
contained thereon. ... On these facts, we conclude that a
reasonable expectation of privacy did not arise in the DNA test
of the cigarette butt, and consequently neither did a search for
Fourth Amendment purposes.”); Raynor v. State, 99 A.3d 753, 767
-14-
(Md. 2014) (“[W]e hold that DNA testing of . . . genetic
material, not obtained by means of a physical intrusion into the
person’s body, is no more a search for purposes of the Fourth
Amendment, than is the testing of fingerprints, or the
observation of any other identifying feature revealed to the
public—visage, apparent age, body type, skin color.”); and State
v. Athan, 158 P.3d 27, 37 (Wash. 2007) (en banc) (“There is no
subjective expectation of privacy in discarded genetic material
just as there is no subjective expectation of privacy in
fingerprints or footprints left in a public place. ... The
analysis of DNA obtained without forcible compulsion and
analyzed by the government for comparison to evidence found at a
crime scene is not a search under the Fourth Amendment.”). We
find these cases persuasive, and thus, we hold that once
defendant voluntarily abandoned the cigarette butt in a public
place, he could no longer assert any constitutional privacy
interest in it. Accordingly, the extraction of his DNA from the
butt did not constitute a search for purposes of the Fourth
Amendment. This argument is overruled.
III. Judgment
Defendant argues that his judgment includes a clerical
error, in that the trial court failed to check the “Class A
-15-
Felony” box in the portion of the judgment that explains why
defendant was sentenced to life imprisonment without parole.
However, the judgment indicates that defendant was sentenced for
a Class A felony in two other locations. Thus, we find it
unnecessary to remand this case for the judgment to indicate,
for a third time, that defendant was sentenced to life
imprisonment based upon a conviction for a Class A felony.
IV. Conclusion
Pursuant to the factors in Dunn, the shared parking lot
located in front of defendant’s four-unit apartment building was
not part of the curtilage of defendant’s apartment. Since
defendant did not have a reasonable expectation of privacy in
the parking lot, he abandoned his cigarette butt by discarding
it there. After defendant voluntarily abandoned the cigarette
butt, its subsequent collection and analysis by law enforcement
did not implicate defendant’s constitutional rights. Defendant
received a fair trial, free from error.
No error.
Judges ELMORE and STEPHENS concur.