NO. COA13-1208

NORTH CAROLINA COURT OF APPEALS

Filed: 2 September 2014

STATE OF NORTH CAROLINA

Plaintiff

v. Cleveland County

Nos. 09 CRS 57186

09 CRS 57187

10 CRS 285

DONALD EUGENE BORDERS

Defendant

Appeal by defendant from judgments entered 29 January 2013 

by Judge Richard D. Boner in Cleveland County Superior Court. 

Heard in the Court of Appeals 22 May 2014.

Attorney General Roy Cooper, by Assistant Attorney General 

Mary Carla Hollis, for the State.

Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse Jr., 

for defendant-appellant. 

HUNTER, JR., Robert N., Judge.

Donald Eugene Borders (“Defendant”) appeals from a jury 

verdict finding him guilty of raping and murdering Margaret 

Tessneer (“Ms. Tessneer”). Defendant argues (i) that the trial 

court erred by admitting DNA evidence obtained by officers after 

effectuating an arrest based on an unrelated warrant at his 

domicile; (ii) that the trial court erred by denying his motion 
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for a change of venue because pretrial publicity made it 

impossible to empanel an impartial jury; and (iii) that the 

trial court abused its discretion in allowing the admission of

expert testimony that Ms. Tessneer died from asphyxiation 

because the testimony was unreliable and lacked a proper 

foundation. After careful review, we find no error in the trial 

court’s judgments.

I. Facts & Procedural History

Defendant was indicted on 11 January 2010 for rape and 

felonious breaking and entering in File Nos. 09 CRS 057186 and 

09 CRS 05187. Defendant was also indicted on 8 March 2010 for 

first-degree murder in File No. 10 CRS 00285. Defendant stood 

trial in Cleveland County Superior Court, beginning on 13 

November 2012 and ending on 29 January 2013. The record and 

trial transcript below tended to show the following facts. 

Immediately prior to Defendant’s trial, the trial court 

held a suppression hearing concerning a DNA sample acquired from 

a cigarette used by Defendant, the facts surrounding which are 

discussed in Section III infra. After the hearing on 

Defendant’s motion to suppress the DNA evidence, Defendant twice 

moved for a change of venue; neither request was granted. The 

jury was empaneled and the State called Amy Fredell (“Ms. 
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Fredell”), a Service Division Supervisor with the Shelby Police 

Department, as its first witness. 

A. Events of 20 September 2003

Ms. Fredell testified that on 20 September 2003, the Shelby 

Police Department received a 911 call requesting that an officer 

be dispatched to 1024 Railroad Avenue, where a death had 

occurred. Patrol Officer Victor Haynes (“Officer Haynes”) was 

dispatched to the residence, where Officer Haynes saw Ms. 

Tessneer, an elderly woman, lying on a bed in the home. Ms. 

Tessneer’s feet were on the floor, she was clothed in a lightcolored nightgown, her eyes were fixed, and her mouth was open. 

Officer Haynes observed false teeth next to her body on the bed. 

Officer Haynes did not find a pulse or observe her breathing. 

Officer Haynes stated that Ms. Tessneer felt cold. Officer 

Haynes cleared the residence and then went outside to ensure

that emergency medical service personnel (“EMS”) came to the 

residence. 

Louie Ledford (“Mr. Ledford”) of EMS arrived at the scene. 

Mr. Ledford entered with Officer Haynes, checked Ms. Tessneer’s 

vital signs, and found that Ms. Tessneer had passed away. 

Officer Haynes surveyed the home and found two cement blocks 

stacked outside of Ms. Tessneer’s bedroom window as well as some 
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phone lines that had been cut on the same side of the house. 

Mr. Ledford testified Ms. Tessneer was not breathing when he 

arrived at her home. After taking Ms. Tessneer’s pulse, Mr. 

Ledford told Officer Haynes that she was dead, closed her eyes 

with his gloved fingers, and covered her body with a sheet. Mr. 

Ledford described the body as “morbid,” having bruising on the 

wrists and arms, and stated that a pool of blood collected 

around Ms. Tessneer’s body. Mr. Ledford did not notice any 

signs of struggle. 

Ms. Tessneer’s daughter, Libby Clark (“Ms. Clark”),

testified that on 20 September 2003, Ms. Clark took her husband 

to the doctor’s office, stopped by Hardee’s to purchase a 

biscuit, and purchased another biscuit to take to her mother. 

Ms. Clark arrived at her mother’s home at around 11 A.M. Ms. 

Clark stated that upon leaving her car, she noticed a cement 

block underneath her mother’s bedroom window, which she thought 

was unusual. Ms. Clark then walked up the home’s steps and 

through the unlocked screen door, which her mother usually kept 

locked. Ms. Clark then saw her mother laying on her bed. Ms. 

Clark ran to Ms. Tessneer’s phone to dial 911, but found that 

the phone did not work. Ms. Clark tried another phone, which 

also did not work. Ms. Clark then ran to a neighbor’s home, 
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asking the woman inside to dial 911 and then went to her uncle’s 

home, which was near Ms. Tessneer’s residence. 

Another of Ms. Tessneer’s daughters, Peggy Sparks (“Ms. 

Sparks”), testified. Ms. Sparks spent her lunch break on 19 

September 2003 with her mother. Ms. Sparks stated that her 

mother was “in good spirts,” that Ms. Tessneer was laughing and 

that Ms. Sparks enjoyed the visit. Ms. Sparks stated that her 

mother was not dating anyone at the time and showed no signs of 

injuries on 19 September 2003. Ms. Sparks described her 

mother’s habit of locking both her screen door and main door at 

her home. Ms. Sparks stated that both doors were locked when 

she visited her mother on 19 September 2003 and that the screen 

door did not appear damaged. 

Crime Scene Investigator Todd Vickery (“Investigator 

Vickery”) performed the crime scene walkthrough on 20 September 

2003. Investigator Vickery observed that Ms. Tessneer’s false 

teeth were lying next to her on the bed, that some pantyhose 

were also on the bed, and that some blood was on the bed’s

mattress pad. Investigator Vickery also noticed a small tear on 

the entry door to the screened-in front porch, near the door’s 

latch. Investigator Vickery then dusted for fingerprints, took 

photographs, and began collecting physical items. Investigator 
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Vickery stated that “[o]ther than the area around Ms. Tessneer, 

the house appeared to be neat and in order.” 

Gaston Memorial Hospital pathologist Dr. Steven Tracy (“Dr. 

Tracy”) testified at trial as an expert in forensic pathology, 

over Defendant’s objection. Dr. Tracy performed an autopsy of 

Ms. Tessneer on 22 September 2003. Dr. Tracy stated that Ms. 

Tessneer had bruising to her arms, legs, one of her feet, left 

shoulder, and abdomen. Dr. Tracy believed Ms. Tessneer’s 

injuries occurred within twenty-four hours of her death. Ms. 

Tessneer also had hemorrhaging over the surface of her arms. 

Dr. Tracy noted that many elderly people have surface 

hemorrhages. Dr. Tracy stated that without knowing Ms. 

Tessneer, he did not know whether the hemorrhages were there 

before or after the bruising occurred. Ms. Tessneer’s right 

forearm also contained an abrasion near her hemorrhages. 

Dr. Tracy described a tear to the outer portion of Ms. 

Tessneer’s panties and a small amount of blood on the panties. 

Dr. Tracy also stated that Ms. Tessneer had a small abrasion to 

her vagina. 

Dr. Tracy also used an SBI sexual assault evidence 

collection kit (“sexual assault kit”) and took swabs from Ms. 

Tessneer’s vagina, cheek, and rectum. In February 2004, the 
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North Carolina State Bureau of Investigation Crime Laboratory 

(“SBI”) reported that its testing showed the presence of sperm 

on the vaginal swab taken from Ms. Tessneer’s sexual assault 

kit. A DNA profile of the evidence was created from the vaginal 

swab, but no DNA match was made at that time. 

Immediately after the autopsy, Dr. Tracy withheld his 

opinion as to the cause of death. Dr. Tracy stated that the 

bruises on the body did not in and of themselves account for Ms. 

Tessneer’s death, and no other anatomical findings apparent at 

that point explained her cause of death. Dr. Tracy’s autopsy 

report lists the cause of death as undetermined, but contained a 

discussion stating that Dr. Tracy was “considering suffocation.” 

Dr. Tracy stated that he waited for microscopic slides and a 

toxicology report to come back, and after ruling out “any other 

reasonable cause of death to a reasonable degree of medical 

certainty,” Dr. Tracy opined that Ms. Tessneer died of 

asphyxiation secondary to suffocation. Dr. Tracy stated that

this may have occurred after Ms. Tessneer’s mouth was covered 

with a soft object, “such as a pillow or cushion, a piece of 

clothing or a hand.” Dr. Tracy also testified that markings or 

injuries typically do not appear if the suffocation was 
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effectuated by a soft object, and that injuries from suffocation 

are often very difficult to detect. 

Dr. Tracy testified that police contacted him in 2009 and

asked if he would consider changing his 2003 opinion about the 

cause of death. Dr. Tracy stated that the police did not 

suggest suffocation. Dr. Tracy also has not modified his 

written autopsy report to reflect suffocation. Dr. Tracy stated 

that he was willing to add an addendum to his report indicating 

that Ms. Tessneer died of asphyxiation, secondary to 

suffocation, but had not amended the autopsy report to reflect 

that view. Dr. Tracy stated that he always believed “to a 

reasonable degree of medical certainty that Ms. Tessneer died of 

asphyxiation.” Dr. Tracy became even more confident in this 

opinion after receiving information about the examination of the

sexual assault kit and lack of other findings as to Ms. 

Tessneer’s cause of death. 

Dr. John D. Butts (“Dr. Butts”), a retired chief medical 

examiner for the State of North Carolina, testified at trial. 

Defendant did not object to Dr. Butts being tendered as an 

expert in the field of forensic pathology. Dr. Butts stated 

that he had consulted with Dr. Tracy in December 2003 and that 

the two had agreed the best designation for the cause and manner 
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of Ms. Tessneer’s death was “undetermined” because “the evidence 

was overwhelmingly [sic] that Ms. Tessneer’s death was not the 

result of natural causes” but that there was not sufficient 

evidence to state the cause of death. 

Dr. Butts later learned about the sexual assault kit’s 

contents in 2009 after being contacted by the local district 

attorney. Dr. Butts prepared another report after learning of 

the evidence derived from the sexual assault kit’s contents in 

which he opined that Ms. Tessneer had died from “external forces 

or causes rather than some natural process” at the hands of

another individual. Dr. Butts stated in this report that “the 

environment and circumstances under which [Ms. Tessneer] was 

found were highly suspicious. There was evidence of entry into 

the house. Her telephone line had been cut or disabled.” Dr. 

Butts also testified that her body was found in an unusual 

position for a natural death, that there was injury to her body, 

disturbances to her clothing, bruises on her body, and bruises 

in the entrance to Ms. Tessneer’s vagina. Dr. Butts testified

the toxicological tests revealed the presence of the pain 

medication Ms. Tessneer used, but that the amount was not 

excessive. Dr. Butts also noted the lack of a catastrophic 

natural event, findings consistent with an advanced disease 
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process, or stroke, or any “evidence of a significant underlying 

medical condition either in her history or in the autopsy report 

upon examination that would explain her death.” Dr. Butts 

testified that given the circumstances, the “most common 

mechanism of death would be an asphyxiation.” Dr. Butts also 

testified that the autopsy report was not amended and that no 

one had coerced him into changing his opinion concerning the 

cause of death. 

B. 2009 Investigation of Ms. Tessneer’s Death

Agent John Kaiser (“Agent Kaiser”) testified that he was 

contacted by Detective Rich Ivey (“Detective Ivey”) in April 

2009 to assist in the investigation of Ms. Tessneer’s death. 

Detective Ivey was working in the Shelby Police Department at 

that time. Agent Kaiser and Detective Ivey worked through the 

case file and devised an investigative strategy. The two 

noticed that there was a suspect book in the case file as well 

as a DNA profile from the sexual assault kit; they resolved to 

work through the suspect book to clear individuals in the book 

or to find a match. There were around thirty individuals listed 

in the book, including Defendant. 

On 4 May 2009, Detective Ivey and Agent Kaiser found

Defendant at his mother’s residence in Cherryville, where he 
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lived. Defendant refused to comply with or submit to police 

officers’ request for a DNA sample. Officers visited Defendant 

on a total of four separate occasions at his home and requested 

a DNA sample; officers visited on 4 May 2009, 6 May 2009, 8 May 

2009, and once more after 8 May 2009 and prior to Defendant’s 

arrest on 16 May 2009. 

Agent Kaiser contacted Officer James Brienza (“Officer

Brienza”) on 13 May 2009 and asked Officer Brienza to serve an 

active warrant for assault on a female on Defendant. Agent 

Kaiser asked Officer Brienza to obtain DNA evidence from 

Defendant, “either from a drink can or some abandoned material.”1 

Officer Brienza verified that the assault on a female warrant 

was still active and then served the warrant on Defendant on 16 

May 2009 at his mother’s residence in Cherryville. 

Officer Brienza arrived at the Cherryville residence

between 12:00 A.M. and 2:00 A.M. on 16 May 2009. Officer 

Brienza knocked at the door and spoke with Defendant’s mother. 

Defendant’s mother allowed Officer Brienza into her home, where 

Officer Brienza found Defendant asleep. Officer Brienza woke 

Defendant up and told Defendant to come with him so he could

 

1 Agent Kaiser stated that he purposefully left his instruction 

to Officer Brienza vague so that Officer Brienza would obtain a 

DNA sample off of a drink can, a cigarette, or another object. 
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serve the arrest warrant. Defendant got dressed and was taken 

outside in handcuffs. Defendant was handcuffed in the front of 

his body.2 

Officer Brienza noticed a pack of cigarettes on the 

nightstand near where he found Defendant and “felt like there 

was a good opportunity to take advantage of possible D.N.A. 

gathering at that point from a cigarette butt.” Officer Brienza 

“asked [Defendant] if he wanted to smoke a cigarette before we 

left,” to which Defendant replied affirmatively. 

Officer Brienza testified that Defendant smoked a cigarette 

“[o]utside in the front porch area towards the driveway, next to 

the car. We had walked from the front porch area and down to my 

vehicle” where Defendant smoked the cigarette. Officer Brienza 

testified that Defendant did not smoke the entire cigarette, but 

that Defendant was allowed “enough time to take several hits off 

of the cigarette – several drags.” After Defendant took these 

cigarette drags, Officer Brienza “asked him if he would like me 

[to] discard the cigarette and told him that we needed to 

 

2 In his affidavit attached to the motion to suppress, Defendant

asserts that he was handcuffed with his hands behind his back. 

Defendant also stated that one of the police officers pulled a 

cigarette from his cigarette pack and placed it in his mouth so 

he could smoke. During Officer Brienza’s testimony at trial, 

Officer Brienza stated that he handcuffed Defendant in front of 

his body and no other evidence was provided tending to show that 

Defendant was handcuffed behind his back. 
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leave.” Officer Brienza stated that Defendant responded 

affirmatively to his offer to discard the cigarette.

Officer Brienza, who was wearing gloves, “took the 

cigarette from his mouth and acted like [he] was going to get 

rid of the cigarette.” Officer Brienza then “extinguished the 

end of the cigarette on the ground and cupped it, put it in a 

plastic bag[,] and took [Defendant] to jail.” Defendant 

objected to the admission of this evidence under the Fourth 

Amendment of the United States Constitution, under “Article 19 –

Article 1, Section 19, 20 and 23 of the North Carolina 

Constitution and also under State versus Reed.” Defendant’s 

objection was overruled by the trial court. 

Officer Brienza stated that no part of the cigarette which 

touched Defendant’s mouth had made contact with the ground. 

Officer Brienza also testified that after processing Defendant 

at the jail, he called Agent Kaiser to tell him about the 

evidence he had gathered and released the cigarette into his 

custody thereafter. Officer Brienza was the only officer to 

serve the warrant and approach Defendant initially, although 

other officers arrived later in a “support role.” 

Officer Brienza testified that he had two goals that 

evening: (i) to serve a warrant and (ii) to obtain a DNA sample. 
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Officer Brienza stated that obtaining the DNA sample was the 

primary goal of his visit. Officer Brienza recounted that 

Defendant carried the cigarette outside and that Defendant was 

in his custody when Defendant smoked the cigarette, as well as 

when Defendant was asked whether he wanted Officer Brienza to 

discard the cigarette. 

After Officer Brienza delivered the cigarette butt to Agent 

Kaiser, Agent Kaiser sent the cigarette butt to the SBI, which

performed DNA tests on the cigarette butt. After Agent Kaiser 

learned that the DNA test results matched the DNA profile 

derived from a swab in Ms. Tessneer’s sexual assault kit, Agent 

Kaiser obtained a second arrest warrant charging Defendant for 

murder, rape, and breaking and entering. Agent Kaiser and 

Officer Brienza served Defendant with the warrants at his 

mother’s home on 28 December 2009. Agent Kaiser and Officer 

Brienza showed Defendant a picture of Ms. Tessneer and asked 

whether he recognized her; Defendant said he did not recognize 

her and denied ever having been in contact with her. Agent 

Kaiser and Detective Ivey also obtained a search warrant 

authorizing them to collect a suspect evidence collection kit 

from Defendant, whereby Defendant was required to provide the 

officers with a cheek swab. The DNA profile extracted from the 
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cheek swab matched the DNA profile collected from the sperm 

found in Ms. Tessneer’s sexual assault kit. 

After the State rested its case at trial, Defendant moved 

to dismiss the case, and his motion was denied by the trial 

court. Defendant did not testify at trial, nor did Defendant 

present evidence. The trial court denied Defendant’s renewed 

motion to dismiss. On 28 January 2013, the jury returned 

verdicts finding Defendant guilty of first-degree murder on a 

felony murder theory; first-degree rape; and felonious breaking 

and entering. The trial court arrested judgment with respect to

the first-degree rape conviction. The trial court then 

sentenced Defendant to life in prison without the possibility of 

parole based upon the first-degree murder conviction. The trial 

court also sentenced Defendant to a concurrent term of ten to 

twelve months imprisonment based upon the felonious breaking and 

entering conviction. Defendant provided timely notice of appeal 

on 29 January 2013. 

II. Jurisdiction & Standard of Review

Defendant appeals as of right from a decision of the trial 

court. N.C. Gen. Stat. §§ 7A–27(b), 15A–1444(a) (2013).

The first issue concerns whether the trial court erred in 

denying a motion to suppress the DNA evidence. This Court 
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reviews conclusions of law stemming from the denial of a motion 

to suppress de novo. State v. Barnhill, 166 N.C. App. 228, 230, 

601 S.E.2d 215, 217, disc. rev. denied, 359 N.C. 191, 607 S.E.2d 

646 (2004).

“Under de novo review, we examine the case with new eyes.” 

State v. Young, ___ N.C. App. ___, ___, 756 S.E.2d 768, 779, 

cert. granted ___ N.C. ___ (2014). “[D]e novo means fresh or 

anew; for a second time, and an appeal de novo is an appeal in 

which the appellate court uses the trial court’s record but 

reviews the evidence and law without deference to the trial 

court’s rulings.” Parker v. Glosson, 182 N.C. App. 229, 231, 

641 S.E.2d 735, 737 (2007) (quotation marks and citations 

omitted). “Under a de novo review, the court considers the 

matter anew and freely substitutes its own judgment for that of 

the lower tribunal.” Craig v. New Hanover Cnty. Bd. of Educ., 

363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (quotation marks 

and citation omitted).

The second issue on appeal concerns the trial court’s 

denial of Defendant’s motions for a change of venue. The third 

issue concerns Defendant’s objections to expert testimony 

regarding the cause of death. Both the second and third issue 

are reviewed under an abuse of discretion standard. State v. 
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Ward, 364 N.C. 133, 139, 694 S.E.2d 738, 742 (2010) (reviewing 

the admissibility of expert testimony under an abuse of 

discretion standard); State v. Whitaker, 43 N.C. App. 600, 603, 

259 S.E.2d 316, 318 (1979) (reviewing the denial of a change of 

venue motion under an abuse of discretion standard).

“Abuse of discretion results where the court’s ruling is 

manifestly unsupported by reason or is so arbitrary that it 

could not have been the result of a reasoned decision.” State 

v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).

III. Analysis

A. Motion to Suppress DNA Evidence

Defendant makes three principal arguments concerning the 

first issue. First, Defendant argues that he did not willfully 

relinquish control of his cigarette butt to Officer Brienza. 

Second, Defendant argues that because the cigarette butt was 

given to Officer Brienza within the curtilage of his home, 

Defendant had a reasonable expectation of privacy in the 

cigarette butt and the DNA derived from it. Third, Defendant 

argues that the ruse crafted by Officer Brienza and Agent Kaiser 

to obtain his DNA violated the Fourth Amendment. 

In this section, we first set forth the facts established 

at the hearing concerning Defendant’s motion to suppress. We 
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then discuss the fundamental principles that guide our inquiry, 

including our binding precedents relating to searches within the 

curtilage, trickery, and abandoned property. We then apply our 

precedents to address Defendant’s arguments.

i. Pre-Trial Hearing and Order on Motion to Suppress

The trial court held a pretrial hearing concerning

Defendant’s motion to suppress the DNA evidence obtained as a 

result of Officer Brienza’s seizure of a cigarette butt 

containing Defendant’s DNA. At the hearing, Agent Kaiser noted 

that Defendant had denied officers’ earlier requests to provide 

a DNA sample on four separate occasions prior to Officer 

Brienza’s arrest of Defendant on 16 May 2009. 

Agent Kaiser and Detective Ivey initially approached 

Defendant at his mother’s residence on 4 May 2009 and told 

Defendant that they were investigating the death of three 

elderly women in 2003. Defendant refused to consent to the 

giving of a DNA sample. Defendant refused to provide a DNA 

sample three additional times and told police that he had 

retained an attorney after the fourth request. Agent Kaiser did 

not believe the police had sufficient evidence to request the 

issuance of a search warrant or an arrest warrant in connection 

with Ms. Tessneer’s death at that time. 
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After Defendant refused to voluntarily provide a DNA 

sample, Agent Kaiser spoke with Vivian Borders, Defendant’s exwife. Vivian Borders told police that she had sought two 

warrants for Defendant’s arrest, one for damage to personal 

property and another for assault on a female. Agent Kaiser 

located the warrant for assault on a female, which was active 

and held in the Gaston County Warrant Repository. Agent Kaiser 

then contacted Officer Brienza and requested that he serve the 

assault on a female warrant on Defendant.3 Agent Kaiser also 

requested that Officer Brienza collect DNA from Defendant, and 

made suggestions about collecting a soda can or a cigarette. 

Agent Kaiser also wanted Officer Brienza to take the DNA sample 

without Defendant’s knowledge. Agent Kaiser said he wasn’t sure 

what he told Officer Brienza, but that he “had in [his] mind 

[that] it could be at the jail. It could be in the car in 

transit. It could be, you know, any different scenarios that 

could have played out.” 

Agent Kaiser described Defendant’s arrest at 2 A.M. on 16 

May 2009 and Defendant’s smoking of a cigarette before leaving 

his mother’s home that evening. Agent Kaiser said that Officer 

Brienza offered Defendant a cigarette, which Defendant smoked 

 

3 The assault on a female charge was eventually dismissed. 
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prior to entering Officer Brienza’s patrol car. Officer Brienza 

“asked [Defendant] if he — meaning [Defendant] — wanted Brienza 

to discard the cigarette. [Defendant] told Brienza he did and 

allowed Brienza to take the cigarette butt from his mouth.” 

Agent Kaiser stated that if Officer Brienza was not 

initially successful in obtaining a DNA sample upon arrest, the 

purpose of serving the warrant in the late evening was to keep 

Defendant in custody and develop another plan to capture his 

DNA. 

Officer Brienza recounted the same facts as Agent Kaiser, 

saying that he offered Defendant a cigarette and “asked if he 

would let me dispose of the cigarette.” On cross, Officer 

Brienza was asked if he had said “you want me to take that and 

throw it away,” and Officer Brienza responded affirmatively. 

Officer Brienza said he took the cigarette from Defendant’s 

mouth, extinguished it, cupped it in his hand, and placed the 

cigarette into an evidence bag. Officer Brienza confirmed that 

he was wearing latex gloves. Officer Brienza also said he would 

not have allowed Defendant to bring the cigarette into the 

police car. 

The trial court entered an order denying Defendant’s motion 

to suppress the DNA evidence collected from the cigarette butt. 
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In its order, the trial court made these relevant findings of 

fact:

8. When Officer Brienza said it was time to 

leave the premises, the officer asked the 

defendant if he wanted the officer to 

dispose of the cigarette. The defendant 

replied affirmatively. Officer Brienza 

removed the cigarette from the defendant’s 

lips. Unbeknownst to the defendant, the 

officer kept the cigarette butt in his 

cupped hand. The officer later placed the 

cigarette butt in a plastic evidence bag.

9. The defendant did not give consent to 

the officer’s removal of the cigarette butt 

from the premises of the residence, and he 

was unaware that the cigarette butt had been 

taken by the officer.

. . .

20. Officer Brienza obtained the cigarette 

butt while the he [sic] and the defendant 

were standing in the driveway of the 

residence of the defendant’s mother. The 

driveway was bounded on both sides by the 

front yard of the residence.

The trial court then concluded as a matter of law that

1. The area where Officer Brienza obtained 

the cigarette butt was located within the 

curtilage of the residence, and it was an 

area in which the defendant had a reasonable 

expectation of privacy.

2. The defendant consented to the removal of 

the cigarette from his lips, and he 

authorized Officer Brienza to dispose of the 

butt. By doing so the defendant 

relinquished possession of the butt and any 

reasonable expectation of privacy with 
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regard to it. That he did so in a protected 

area as a result of trickery is of no 

consequence. 

ii. Guiding Principles in Search and Seizure Jurisprudence

The guiding principles in this case are derived from the 

Fourth Amendment to the United States Constitution and Section

20 of the North Carolina Constitution:

The right of the people to be secure in 

their persons, houses, papers, and effects, 

against unreasonable searches and seizures, 

shall not be violated, and no Warrants shall 

issue, but upon probable cause, supported by 

Oath or affirmation, and particularly 

describing the place to be searched, and the 

persons or things to be seized.

U.S. Const. amend. IV; N.C. Const. art. I, § 20 (“General 

warrants, whereby any officer or other person may be commanded 

to search suspected places without evidence of the act 

committed, or to seize any person or persons not named, whose 

offense is not particularly described and supported by evidence, 

are dangerous to liberty and shall not be granted.”); see also 

N.C. Const. art. I, § 19 (“No person shall be taken, imprisoned, 

or disseized of his freehold, liberties, or privileges, or 

outlawed, or exiled, or in any manner deprived of his life, 

liberty, or property, but by the law of the land. No person 

shall be denied the equal protection of the laws; nor shall any 
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person be subjected to discrimination by the State because of 

race, color, religion, or national origin.”).

“[T]he touchstone of [Fourth] Amendment analysis has been 

. . . whether ‘a person has a constitutionally protected 

reasonable expectation of privacy.’” Oliver v. United States, 

466 U.S. 170, 177 (1984) (quoting Katz v. United States, 389 

U.S. 347, 360 (1967) (Harlan, J., concurring). Further:

The Amendment does not protect the merely 

subjective expectation of privacy, but only 

those expectations that society is prepared 

to recognize as reasonable. No single 

factor determines whether an individual 

legitimately may claim under the Fourth 

Amendment that a place should be free of 

government intrusion not authorized by 

warrant. In assessing the degree to which a 

search infringes upon individual privacy, 

the Court has given great weight to such 

factors as the intention of the Framers of 

the Fourth Amendment, the uses to which the 

individual has put a location, and our 

societal understanding that certain areas 

deserve the most scrupulous protection from 

government invasion.

State v. Phillips, 132 N.C. App. 765, 770, 513 S.E.2d 568, 572 

(1999) (citation, quotation marks, and alterations omitted).

An individual’s expectation of privacy is 

“necessarily . . . of a diminished scope” when taken into police 

custody. Maryland v. King, ___ U.S. ___, ___, 133 S. Ct. 1958, 

1978 (2013) (citation, quotation marks, and alterations 
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omitted). DNA evidence may also be obtained without consent of 

a suspect after “officers make an arrest supported by probable 

cause to hold for a serious offense . . . .” Id. at ___, 133 S. 

Ct. at 1980. Our General Statutes allow for compulsory DNA 

sample collection from a suspect arrested for any one of several 

offenses. N.C. Gen. Stat. § 15A-266.3A(f) (2013). Defendant 

was initially arrested pursuant to N.C. Gen. Stat. § 14-33(c)(2) 

(2013), which is not one of the enumerated offenses for which 

police officers may compel the collection of DNA evidence. See 

N.C. Gen. Stat. § 15A-266.3A(f).

“Searches conducted without warrants have been held 

unlawful ‘notwithstanding facts unquestionably showing probable 

cause,’ for the Constitution requires that the deliberate, 

impartial judgment of a judicial officer . . . be interposed 

between the citizen and the police . . . .” Katz, 389 U.S. at 

357 (citations and quotation marks omitted). “[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.” Id.

One such exception allows police to conduct warrantless 

searches of garbage left for regular curbside collection. 
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California v. Greenwood, 486 U.S. 35, 38 (1988). Our Supreme 

Court has recognized 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). However, Hauser 

also held 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. at 388, 464 S.E.2d at 447 (emphasis 

added). This Court identified three factors relevant to the

Hauser inquiry in State v. Reed, 182 N.C. App. 109, 112, 641 

S.E.2d 320, 322, writ denied, review denied, appeal dismissed, 

361 N.C. 701, 653 S.E.2d 155 (2007): “(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 id. (quoting Hauser, 342 N.C. at 386, 464 S.E.2d 

at 446). This exception becomes relevant in conjunction with 

the principles governing the seizure of abandoned property 

discussed infra.
-26-

The State may also not violate a constitutional right 

indirectly if the State was not permitted to take that same 

action directly. State v. Griffin, 154 N.C. 611, 615, 70 S.E. 

292, 293 (1911) (“‘What the state may not do directly it may not 

do indirectly.’” (quoting Bailey v. State of Alabama, 219 U.S. 

219, 244 (1911))); see also Henderson v. Mayor of City of New 

York, 92 U.S. 259, 263 (1875) (“That which cannot be done 

directly will not be permitted to be done indirectly.”); State 

v. Behrman, 114 N.C. 797, 807, 19 S.E. 220, 223 (1894) (“A 

declaration excluded by the Constitution, as in violation of 

individual right, will not be allowed to accomplish indirectly 

what it is not permitted to do directly.”).

“Evidence obtained in violation of the Fourth Amendment’s 

guarantee against unreasonable searches and seizures is 

generally excluded at trial.” State v. Banner, 207 N.C. App. 

729, 732, 701 S.E.2d 355, 358 (2010). The exclusionary rule 

that has developed under Fourth Amendment jurisprudence is also 

applicable to “evidence obtained in violation of the North 

Carolina Constitution.” Id.; see also State v. Carter, 322 N.C. 

709, 724, 370 S.E.2d 553, 562 (1988). “[O]ur constitution 

demands the exclusion of illegally seized evidence. The courts 

cannot condone or participate in the protection of those who 
-27-

violate the constitutional rights of others.” Carter, 322 N.C. 

at 723, 370 S.E.2d at 561.

iii. Curtilage

“The Fourth Amendment ‘indicates with some precision the 

places and things encompassed by its protections’: persons, 

houses, papers, and effects.” Florida v. Jardines, ___ U.S. 

___, ___, 133 S. Ct. 1409, 1414 (2013). However, “when it comes 

to the Fourth Amendment, the home is first among equals.” Id. 

At the core of the Fourth Amendment is the “‘right of a man to 

retreat into his own home and there be free from unreasonable 

governmental intrusion.’” Id. (quoting Silverman v. United 

States, 365 U.S. 505, 511 (1961)). The area “immediately 

surrounding and associated with the home” is known as the 

curtilage, and is considered “part of the home itself” for 

Fourth Amendment purposes. Id. (citation and quotation marks 

omitted). “This area around the home is ‘intimately linked to 

the home, both physically and psychologically,’ and is where 

‘privacy expectations are most heightened.’” Id. at 1415 

(quoting California v. Ciraolo, 476 U.S. 207, 213 (1986)). 

Curtilage includes the “yard around the dwelling house as 

well as the area occupied by barns, cribs, and other 

outbuildings.” State v. Rhodes, 151 N.C. App. 208, 214, 565 
-28-

S.E.2d 266, 270, writ denied, review denied, 356 N.C. 173, 569 

S.E.2d 273 (2002). Evidence obtained from a trash can located 

within the curtilage may also be subject to the exclusionary 

rule if not placed there for routine collection. Rhodes, 151 

N.C. App. at 215, 565 S.E.2d at 271 (“[B]ecause 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.”).

iv. Trickery

“The known official may engage in deception leading the 

consenting party to conclude that the official’s objective is 

other than criminal prosecution or that the official’s objective 

relates to a form of criminal activity different from that which 

actually prompted the official to seek consent.” Wayne R. 

LaFave, 4 Search & Seizure § 8.2(n) 176 (5th ed. 2012). 

However, “there is no common understanding as to what 

constitutes permissible deception in enforcing the criminal

law.” Id. at 181. 

Employing fraud or trickery in collecting evidence does 

not, by itself, render evidence inadmissible. State v. Jackson, 
-29-

308 N.C. 549, 574, 304 S.E.2d 134, 148 (1983), overruled on 

other grounds as stated in State v. Abbott, 320 N.C. 475, 481, 

358 S.E.2d 365, 369 (1987).(“The use of trickery by police 

officers in dealing with defendants is not illegal as a matter 

of law. The general rule in the United States, which this Court 

adopts, is that while deceptive methods or false statements by 

police officers are not commendable practices, standing alone 

they do not render a confession of guilt admissible. The 

admissibility of the confession must be decided by viewing the 

totality of the circumstances . . . .” (internal citations 

omitted)); State v. Chambers, 92 N.C. App. 230, 233, 374 S.E.2d 

158, 160 (1988) (holding that a police officer did not 

unlawfully obtain a statement from a defendant by asking him 

whether he would find “ass prints” on the hood of a vehicle in a 

rape case). Further, “the state of mind of the police is 

irrelevant to the question of the intelligence and voluntariness 

of respondent’s election to abandon his rights.” Moran v. 

Burbine, 475 U.S. 412, 423 (1986). While “police deception 

might rise to a level of a due process violation,” it did not do 

so in a case in which the police deliberately did not allow a 

defendant to speak with his attorney absent the defendant’s 

request for an attorney. Id. at 415, 432, 433–34.
-30-

Other state courts have also allowed officers to use

trickery to obtain DNA evidence in connection with the service 

of valid arrest warrants for unrelated crimes. See Com. v. 

Ewing, 854 N.E.2d 993, 1001 (Mass. App. Ct. 2006), aff’d, 873 

N.E.2d 1150 (Mass. 2007) (holding that “[t]he defendant had no 

expectation of privacy in cigarette butts” and a drinking straw 

that the defendant “voluntarily abandoned as trash” while being 

interviewed at the police station house after law enforcement 

served an arrest warrant for an unrelated crime); see also State 

v. Athan, 158 P.3d 27, 31–33 (Wash. 2007) (upholding a ruse by 

police against a challenge lodged under the Washington 

Constitution where a defendant was sent a letter from a 

fictitious law firm and his saliva was collected from an 

envelope on the return letter).

v. Abandoned Property

“The 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); see also Robert L. Farb, Arrest, 

Search, and Investigation in North Carolina 175 (4th ed. 2011) 

(“The Fourth Amendment does not apply to searching or seizing 

abandoned property. The reason is fairly clear. A person 

cannot assert a violation of a legitimate expectation of privacy
-31-

if he or she has intentionally relinquished an interest in the 

property.”). There is not a reasonable expectation of privacy 

when a person “voluntarily puts property under the control of 

another . . . [and] he must be viewed as having relinquished any 

prior legitimate expectation of privacy with regard to that 

property, as it becomes subject to public exposure upon the whim 

of the other person.” State v. Jordan, 40 N.C. App. 412, 415, 

252 S.E.2d 857, 859 (1979). If a party abandons property, 

“[t]here can be nothing unlawful in the Government’s 

appropriation of such abandoned property.” Abel v. United 

States, 362 U.S. 217, 241 (1960); see also Phillips, 132 N.C. 

App. at 771, 513 S.E.2d at 572 (upholding a trial court’s 

decision to deny a motion to suppress because “defendant lost 

any expectation of privacy he might have had” in property by 

giving the property directly to a friend). 

However, property may not be abandoned if it is done as a 

direct result of a law enforcement officer’s illegal search or 

seizure. See California v. Hodari D, 499 U.S. 621, 627–29 

(1991) (holding that abandoned cocaine was not the “product of 

an unlawful seizure” and was thus not excluded); Hester v. 

United States, 265 U.S. 57, 58 (1924) (upholding officers’ 

examination of illegal whiskey bottles dropped by defendant and 
-32-

a companion); State v. Cooke, 54 N.C. App. 33, 44, 282 S.E.2d 

800, 808 (1981), modified as aff’d, 306 N.C. 132, 291 S.E.2d 618 

(1982) (holding that when one discards property as the product 

of an illegal search, a reasonable expectation of privacy exists 

and the property is not abandoned); State v. Williams, 71 N.C. 

App. 136, 138, 321 S.E.2d 561, 563 (1984) (holding that a 

dropped jacket in a public place was abandoned); Cromartie, 55 

N.C. App. at 223–24, 284 S.E.2d at 730 (holding there was 

abandonment when the defendant discarded the property into a 

public street and abandoned the property).

This Court has also held 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.” Reed, 182 N.C. App. at 114, 641 S.E.2d at 323; see also

People v. Gallego, 117 Cal. Rptr. 3d 907, 911 (Cal. Ct. App. 

2010) (holding that a defendant does not have a reasonable 

expectation of privacy in a cigarette butt that was discarded on 

a public sidewalk). In Reed, police arrived at the defendant’s 

apartment seeking a DNA sample, where they met the defendant on 

his patio. Reed, 182 N.C. App. at 110, 641 S.E.2d at 321. The 

defendant did not agree to provide a DNA sample, and spoke with 

police while he smoked two cigarettes on his patio. Id. The 
-33-

defendant took apart the first cigarette butt, removed the 

filter’s wrapper and “shred[ed] the filter before placing the 

remains in his pocket.” Id. The defendant flicked the second 

cigarette butt at a trash pile in the corner of his patio. Id. 

The butt “struck the pile of trash and rolled between defendant 

and one of the detectives,” the detective kicked the butt into a

“grassy common area,” and the detective thereafter collected the 

cigarette. Id. The State thereafter presented evidence showing 

that the DNA on the cigarette butt matched a stain found on the 

alleged victim’s shirt. Id. This Court held that the defendant 

had a reasonable expectation of privacy on his patio and that 

the trial erred by allowing the evidence to be admitted at 

trial. Id. at 110–11, 641 S.E.2d at 321.

vi. Application

This is a close case that lies squarely at the intersection 

of the foregoing principles of law. Officer Brienza’s search 

was conducted as part of serving an unrelated arrest warrant. 

The arrest was effectuated despite Defendant’s refusal on four 

separate occasions to provide officers with a DNA sample. The 

arrest was effectuated at his residence at 2:00 A.M. by a police 

officer who was explicitly asked by another officer to collect a 

DNA sample from Defendant. Defendant also relinquished the 
-34-

cigarette butt directly to a police officer, rather than 

throwing the cigarette butt to the ground within the curtilage 

or placing it in a trash receptacle in the home or its 

curtilage.

We address first Defendant’s argument that he did not 

relinquish control of the cigarette butt willingly. The record 

tends to show that Defendant was cuffed in front of his body and 

that Officer Brienza escorted him from his bedroom to the 

carport. Officer Brienza gave Defendant the option to smoke a 

cigarette in the carport area, which Defendant chose to do. 

Officer Brienza then lit the cigarette for Defendant. Officer 

Brienza then asked Defendant “[w]ould you like me to take that 

cigarette from you and throw it away.” Defendant agreed to let 

Officer Brienza take the cigarette, which Officer Brienza 

removed from Defendant’s mouth and placed into an evidence bag. 

Officer Brienza said he would not have allowed Defendant to take 

the cigarette into his vehicle. 

Based upon the foregoing facts, the trial court concluded 

that Defendant relinquished control of the cigarette willingly. 

Officer Brienza asked Defendant first if he wanted to smoke a 

cigarette, to which Defendant responded affirmatively. Officer 

Brienza then asked Defendant if he could take the cigarette to 
-35-

throw it away, and Defendant agreed. Officer Brienza then took 

the cigarette from Defendant’s mouth and placed it in the 

evidence bag. 

Defendant was handcuffed in the front of his body and took 

several puffs of his cigarette, although it is unclear whether 

he used his hands to smoke the cigarette. If Defendant had the 

ability to move his hands, he had the ability to throw the 

cigarette away himself and could have told Officer Brienza that 

he did not wish to give him the cigarette. If Defendant did not 

have the ability to move his hands, he then would have had the 

ability to spit the cigarette from his mouth into the curtilage. 

If Officer Brienza had collected the cigarette under any of 

those scenarios, admission would be barred under Reed and 

Rhodes. Reed, 182 N.C. App. at 110–11, 641 S.E.2d at 321; 

Rhodes, 151 N.C. App. at 215, 565 S.E.2d at 271. In short, 

there is evidence tending to indicate that Defendant voluntarily 

accepted Officer Brienza’s offer to throw away the cigarette 

butt and accordingly Defendant’s first argument fails.

Defendant next argues that the attendant circumstances 

surrounding this case give rise to a reasonable expectation of 

privacy that requires suppression of the cigarette butt as 

evidence. The controlling inquiry is whether Defendant had a 
-36-

reasonable expectation of privacy in the cigarette butt that he 

voluntarily provided to Officer Brienza. Based upon controlling 

case law, we are bound to hold that he did not.

The location where Officer Brienza seized the cigarette 

butt was clearly within the curtilage of the residence: 

Defendant was standing in between the carport and the officer’s 

police vehicle. The trial court properly held as much in its 

order denying the motion to suppress. Under Reed, Rhodes, and 

Hauser, Defendant could have spit the cigarette butt onto the 

ground in the carport, placed the cigarette into a trash can 

that was not intended to be collected, or left the cigarette 

butt somewhere else in the curtilage and the cigarette butt 

would have been subject to suppression. Hauser, 342 N.C. at 

386, 464 S.E.2d at 446; Reed, 182 N.C. App. at 110–11, 641 

S.E.2d at 321; Rhodes, 151 N.C. App. at 215, 565 S.E.2d at 271. 

However, the cigarette was not placed within a trash can, on the 

ground, or in any other container; the cigarette butt was placed 

in the gloved palm of Officer Brienza. As such, the trial court 

found that Defendant “relinquished possession of the butt and 

any reasonable expectation of privacy with regard to it” and 

that the location where Defendant relinquished control was “of 

no consequence.” We agree with the trial court’s assessment. 
-37-

As in Phillips and Jordan, Defendant relinquished control 

of property, here a cigarette butt, to another party. Phillips, 

132 N.C. App. at 771, 513 S.E.2d at 572; Jordan, 40 N.C. App. at 

415, 252 S.E.2d at 857. In Phillips, the defendant threw drugs 

into a friend’s lap after seeing police and while both were

inside the defendant’s car. 132 N.C. App. at 767, 513 S.E.2d at 

570. The defendant told the friend to bring the drugs to 

defendant’s apartment. Id. The defendant’s friend left drugs 

in the defendant’s mailbox, which was affixed to the front door 

of his apartment. Id. at 767, 769–70, 513 S.E.2d at 569–70. 

The defendant’s friend told officers where the drugs were 

hidden, and officers seized the drugs from the mailbox. Id. at 

766, 513 S.E.2d at 570. The defendant argued that he had a 

reasonable expectation of privacy in the mailbox, but this Court 

held that the defendant’s actions in throwing the drugs into his 

friend’s lap removed “any expectation of privacy he might have 

had in his property.” Id. at 771, 513 S.E.2d at 572. 

Similarly, this Court held in Jordan that a defendant who put 

drugs into his female passenger’s purse had relinquished his 

expectation of privacy in that item by placing the property 

under the control of another. 40 N.C. App. at 415, 252 S.E.2d 

at 859. In both Phillips and Jordan, property was relinquished 
-38-

to another person inside a vehicle, an area which also creates a 

higher expectation of privacy than a public area. See Phillips, 

132 N.C. App. at 771, 513 S.E.2d at 572; Jordan, 40 N.C. App. at 

415, 252 S.E.2d at 857. In both cases, this Court upheld 

admission of the evidence.

Here, Defendant gave a cigarette butt to a police officer 

while in handcuffs and while in the officer’s custody. 

Certainly a reasonable person’s expectation of privacy would be 

diminished while in custody and handcuffed. See, e.g.,

Williamson v. State, 993 A.2d 626, 635–36, 635–36 n.1 (Md. 

2010), aff'd as stated in Corbin v. State, 52 A.3d 946, 952 

(2012) (holding that the defendant did not have an expectation 

of privacy in a cup he “voluntarily discarded” on the floor of 

his jail cell, because he “could not reasonably expect that the 

police would not collect, and potentially investigate, the trash 

he discarded in his cell”), cert. denied, ___ U.S. ___, 131 S.

Ct. 419 (2010). Accordingly, as the trial court found, the fact 

that Defendant placed the cigarette butt in Officer Brienza’s 

control inside of the curtilage of his home is of no consequence

to the analysis because Defendant ceded control of the property 

to Officer Brienza voluntarily after Officer Brienza’s request. 

Thus, Defendant’s second argument on appeal fails.
-39-

Defendant lastly argues that Agent Kaiser and Officer 

Brienza’s use of trickery to obtain the cigarette butt requires 

that the evidence be suppressed. We note initially that we are 

troubled by the actions of Agent Kaiser and Officer Brienza in 

serving the earlier warrant upon Defendant. The use of one 

warrant for the intended purpose of conducting a search not 

supported by probable cause may, under other circumstances,

violate the prohibition against general warrants in the North 

Carolina Constitution. See N.C. Const. art. I, § 20. Secondly, 

the officers’ actions in this case also very nearly run 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. See, e.g., Griffin, 154 N.C. 611, 70 S.E. 292, 293 

(1911). However, because the police did not commit an illegal

act in effectuating the valid arrest warrant and because the 

subjective motives of police do not affect the validity of 

serving the underlying arrest warrant, we cannot agree with 

Defendant’s final challenge to the trial court’s decision. 

Defendant also did not argue that the police had used the 

initial arrest warrant as a general warrant. There may be

circumstances in which an appellate court prohibits law 
-40-

enforcement officers from using an arrest warrant to effectuate 

the ends sought to be achieved by a general warrant; however, 

without such an argument, it is not this Court’s duty to decide 

a doctrine of this constitutional scope affecting the 

jurisdiction of the State.

When an individual “discards property as the product of 

some illegal police activity, he will not be held to have 

voluntarily abandoned the property or to have necessarily lost 

his reasonable expectation of privacy with respect to it.” 

Cromartie, 55 N.C. App. at 225, 284 S.E.2d at 731. However, as 

stated supra, the underlying motivations for stopping a motorist 

or effectuating an arrest are not relevant so long as the 

underlying arrest was valid. See, e.g., State v. Parker, 183 

N.C. App. 1, 8, 644 S.E.2d 235, 241 (2007) (“A law enforcement 

officer’s subjective motivation for stopping a motorist is 

irrelevant to the validity of a traffic stop if the stop is 

supported by probable cause.”).

Standing alone, deception does not render a defendant’s 

confession or relinquishment of evidence inadmissible. See 

Jackson, 308 N.C. at 574, 304 S.E.2d at 148 (“[W]hile deceptive 

methods or false statements by police officers are not 

commendable practices, standing alone they do not render a 
-41-

confession of guilt inadmissible . . . .”); State v. Graham, ___ 

N.C. App. ___, ___, 733 S.E.2d 100, 105 (2012), review denied, 

366 N.C. 432, 736 S.E.2d 492 (2013)(“[D]eception is not 

dispositive where a confession is otherwise voluntary.”).

There is no indication that Defendant’s arrest for the twoyear-old charge of assault on a female was invalid. While it is 

apparent that Officer Brienza and Agent Kaiser strategized to 

use this arrest warrant for the purposes of obtaining a DNA 

sample from Defendant, “the state of mind of the police is 

irrelevant to the question of the intelligence and voluntariness 

of respondent’s election to abandon his rights.” Moran, 475 

U.S. at 423; see also Ewing, 854 N.E.2d at 1000 (upholding 

arrest of a defendant on an unrelated warrant, which police used 

to obtain a DNA sample). While we agree with Defendant that 

abandonment of property resulting from illegal police conduct is 

not abandonment, there was no such illegal activity here. Cf. 

State v. Joe, ___ N.C. App. ___, ___, 730 S.E.2d 779, 783 (2012) 

(holding that because officers only discovered a bag of cocaine 

near where Defendant was unlawfully arrested and handcuffed, the 

contraband was the product of an illegal arrest and was properly 

suppressed). Without illegal activity by the police, the 

abandoned property was properly seized, even though police did 
-42-

not have probable cause to obtain it in the absence of

abandonment. See State v. Johnson, 98 N.C. App. 290, 297, 390 

S.E.2d 707, 711 (1990). Thus, Defendant’s third principal 

argument for suppression fails.

Because Defendant voluntarily gave Officer Brienza his 

cigarette butt after Officer Brienza offered to throw away the

cigarette butt, Defendant abandoned the cigarette butt and no 

longer had a reasonable expectation of privacy in the property. 

As the property was abandoned, the officers’ subjective intent 

in effectuating the valid assault on a female warrant was 

irrelevant. For the foregoing reasons, we affirm the trial 

court’s denial of Defendant’s motion to suppress the DNA 

evidence. We now turn to Defendant’s arguments concerning his 

motion for change of venue and the admission of expert testimony 

at trial.

B. Change of Venue

Defendant next argues that the trial court abused its 

discretion by denying his motion to change venue. We disagree.

If a trial court determines that there is “so great a 

prejudice against the defendant that he cannot obtain a fair and 

impartial trial,” the trial court must transfer the proceeding 

to another county in the prosecutorial district or order a 
-43-

special venire. N.C. Gen. Stat. § 15A-957 (2013). “To obtain a 

change of venue, a defendant must show a specific and 

identifiable prejudice against him as a result of pretrial 

publicity.” State v. Rogers, 355 N.C. 420, 429, 562 S.E.2d 859, 

866 (2002). In meeting this burden, “a defendant must show 

inter alia that jurors with prior knowledge decided the case, 

that defendant exhausted his peremptory challenges, and that a 

juror objectionable to defendant sat on the jury.” State v. 

Robinson, 355 N.C. 320, 327, 561 S.E.2d 245, 250–51 (2002) 

(quotation marks, citation, and alterations omitted). Further, 

“[t]he determination of whether a defendant has carried his 

burden of showing that pre-trial publicity precluded him from 

receiving a fair trial rests within the trial court’s sound 

discretion.” State v. Yelverton, 334 N.C. 532, 540, 434 S.E.2d 

183, 187 (1993).

Juror voir dire may present “persuasive evidence that the 

pretrial publicity was not prejudicial or inflammatory” through 

the jurors’ responses to questioning about their knowledge of 

the case. State v. Richardson, 308 N.C. 470, 480, 302 S.E.2d 

799, 805 (1983). In Richardson, nearly every juror “admitted to 

having read about the case in the newspaper or having heard 

about it on television.” Id. When the jurors were questioned 
-44-

further about the details of the particular incident, several of 

the jurors apologized for not remembering details and all of the 

jurors “unequivocally answered in the affirmative when asked if 

they could set aside what they had previously heard about 

defendant’s case and determine defendant’s guilt or innocence 

based solely on the evidence introduced at trial.” Id. 

Accordingly, our Supreme Court held that the trial court did not 

abuse its discretion in Richardson. Id. at 481, 302 S.E.2d at 

805; see also State v. Walters, 357 N.C. 68, 78, 588 S.E.2d 344, 

351 (2003) (“[E]ach juror about whom defendant complains 

indicated that he or she would be fair and impartial and decide 

the case on the evidence that was presented. Also, the jurors 

indicated that they would disregard any information they heard 

or read prior to the trial.”); State v. Wallace, 351 N.C. 481, 

513, 528 S.E.2d 326, 346 (2000). 

Ultimately, “[i]f each juror states unequivocally that he 

can set aside what he has heard previously about a defendant’s 

guilt and arrive at a determination based solely on the evidence 

presented at trial, the trial court does not err in refusing to 

grant a change of venue.” State v. Moore, 335 N.C. 567, 586, 

440 S.E.2d 797, 808 (1994).
-45-

Here, potential jurors were questioned at length about 

their knowledge of Defendant’s case and the pretrial publicity 

concerning Defendant’s case. When prospective jurors indicated 

that they had knowledge of the case and formed an opinion about

the case that they could not set aside, they were removed from 

the jury. 

Five of the twelve jurors (“Jurors A–E”) indicated that 

they had not seen, heard, or read any information about the case 

before jury selection. One juror (“Juror F”) did not have any 

knowledge of the case prior to jury selection, but saw 

Defendant’s photograph on the front page of a newspaper at 

Walgreens in between the first and second day of the jury 

selection process. Juror F did not read any information 

contained in the article and said she would follow the judge’s 

instructions concerning the presumption of Defendant’s 

innocence. 

Another juror (“Juror G”) said, during voir dire, that he 

seemed to have “heard something about it years and years ago,” 

that his memory was vague, that he had not read or heard any 

information recently, and that he had not formed an opinion 

about the case. One juror (“Juror H”) said she read headlines 

in the local paper around a week and a half before jury 
-46-

selection and that she didn’t remember anything about the case 

except that “it was an up and coming something.” Juror H also 

said she understood that the newspaper was not evidence, that 

the newspaper did not cause her to form an opinion, and that she 

had no presumptions about Defendant’s guilt or innocence in the 

case. 

Two jurors (“Juror I” and “Juror J”) were familiar with 

media accounts of the case. Juror I said she had read a 

paragraph in a newspaper article in which she learned that the 

case was a “cold case” reopened because of DNA, that the

underlying incident concerned occurred in 2003, and that the 

incident was in Cleveland County. Juror I swore that she knew 

the newspaper story was not evidence, that she should disregard 

that information, and that she had not formed an opinion. Juror 

J said he saw a television story two nights prior to jury 

selection. Juror J said “[a]bout all I heard was that they was 

[sic] looking for jurors for the case,” that he was using his 

computer while watching it and that he did not know any other 

facts prior to jury selection. Juror J also said “[a] man’s 

innocent until he’s proven guilty” and that he would have no 

problem returning a not guilty verdict if the State could not 

prove its case. Juror J also said he saw a news report that “a 
-47-

man had raped this older woman and killed her” and that the 

woman’s name was Tessneer. 

“Juror K” had read a “small article on Yahoo” about the 

case and said he had not formed any opinions about Defendant’s 

guilt or innocence. Juror K said the article reported that 

“jury selection was about to begin,” and that it caught his eye 

because he had been summoned for jury duty. Juror K said the 

article described the charges and that “[i]t did, though, talk 

about that there were two other cases out there that, I’m not 

sure who but somebody, they said related.” 

“Juror L” had read in the Shelby Star newspaper that 

Defendant was accused of “breaking in and killing a woman in 

Cherryville, and there were two other murders that were 

considered to be similar, although he has not been accused of 

those.” Juror L also said she remembered that the victims lived 

close together. Juror L said she had not formed an opinion 

about the guilt or innocence of the defendant, but did read that 

there was “some information about DNA evidence” and that she was 

“a believer in DNA.” Juror L said she would have no hesitation 

about returning a not guilty verdict if the State did not meet 

its burden of proof. Juror L said she had discussions with 

friends at work about the case. Juror L said the conversation 
-48-

was that the court would be looking for jurors, but the group

did not discuss the facts of the case. One gentleman who was 

Juror L’s supervisor said “he went to church with the daughter 

of one of the victims” but was unsure which person he was 

referring to. Juror L said there were three crimes and that one 

was linked to this case, but that she did not know that 

Defendant had any relation to any of the victims in the case, 

including Ms. Tessneer. Juror L also said that she would 

presume Defendant to be innocent, put aside the article she 

read, listen to the evidence, and begin with a “clean slate.” 

Neither of the alternate jurors had read or heard anything 

about the case prior to jury selection. The foregoing tends to 

show that all jurors either indicated that they had no prior 

knowledge or that if they had read any information, they could 

put it aside at trial.

Defendant argues that his case resembles State v. Jerrett, 

309 N.C. 239, 307 S.E.2d 339 (1983). However, this case is 

distinguishable from Jerrett. In Jerrett, ten of the twelve 

jurors, as well as both alternate jurors, “had heard about the 

case.” Id. at 257, 307 S.E.2d at 349. Four jurors knew the 

defendant’s family or relatives. Id. The jury’s foreman said 

he had personally heard one of the victim’s family members
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“emotionally discussing the case.” Id. Six of the jurors knew 

or were familiar with the State’s witnesses. Id. The jury was 

examined collectively, rather than individually. Id. at 257–58, 

307 S.E.2d at 349. The crime occurred in Alleghany County, 

which had a population of 9,587 at that time. Id. at 252 n.1, 

307 S.E.2d at 346 n.1.

Here, six of the jurors had no knowledge of the case prior 

to the jury selection process. Neither of the alternate jurors 

had knowledge of the case prior to jury selection. The jury was 

selected using individual voir dire. None of the jurors 

selected knew any of the State’s witnesses. The population of 

Cleveland County was 97,489 according to Defendant, a population 

87,902 larger than the population of Allegheny County considered 

in Jerrett. Accordingly, we do not believe the situation 

presented here is similar to Jerrett and hold that Defendant did 

not meet his burden of showing that the trial court improperly 

denied his motion for a change of venue.

C. Expert Testimony

Defendant next argues that the expert opinion testimony of 

Dr. Tracy and Dr. Butts was unreliable and should not have been 

admitted at trial under the rules of evidence. We disagree.

North Carolina Rule of Evidence 702(a) controls the 
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admission of expert opinion testimony:

If scientific, technical or other 

specialized knowledge will assist the trier 

of fact to understand the evidence or to 

determine a fact in issue, a witness 

qualified as an expert by knowledge, skill, 

experience, training, or education, may 

testify thereto in the form of an opinion. 

N.C. Gen. Stat. § 8C-1, Rule 702 (2009).4 The admissibility of 

the expert testimony in the present case is evaluated under the

three-step inquiry, outlined by our Supreme Court in Howerton v. 

Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 

(2004): “(1) Is the expert’s proffered method of proof 

sufficiently reliable as an area for expert testimony? (2) Is 

the witness testifying at trial qualified as an expert in that 

area of testimony? (3) Is the expert’s testimony relevant?” Id.

(citations omitted). 

As far as the first portion of the Howerton inquiry is 

concerned, reliability is a “preliminary, foundational inquiry 

into the basic methodological adequacy of an area of expert 

 

4 Rule 702 was amended by the General Assembly in 2011, but that 

change does not apply to Defendant’s case since he was indicted 

on 11 January 2010. See 2011 Sess. Laws 1048, 1049, ch. 283, § 

1.3 (stating that the amendment applies to defendants indicted 

after 1 October 2011). The federal standard announced in 

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 

(1993) now applies in North Carolina under this Court’s ruling 

in State v. McGrady, ___ N.C. App. ___, ___, 753 S.E.2d 361, 367 

(2014), review allowed, ___ N.C. ___, 758 S.E.2d 864 (2014).
-51-

testimony.” Id. at 460–61, 597 S.E.2d at 687–88. The expert’s 

opinion does not have to be conclusively proven or conclusively 

reliable to be admitted into evidence. Id. Any questions that 

remain about the “quality of the expert’s conclusions” go to the 

weight that the trier of fact may give the testimony, rather 

than the testimony’s admissibility. Id. Further, “the trial 

court should look to precedent for guidance in determining 

whether the theoretical or technical methodology underlying an 

expert’s opinion is reliable.” Id. at 459, 597 S.E.2d at 687. 

State v. Annadale, 329 N.C. 557, 406 S.E.2d 837 (1991) 

provides an example in which our Supreme Court allowed an expert 

in forensic pathology to opine about the victim’s cause of death 

when no physical evidence existed to show the cause of death. 

Id. at 573, 406 S.E.2d at 842. In Annadale, the forensic 

pathologist listed the cause of death as an “incision of the 

throat,” which the pathologist admitted was based on information 

provided by law enforcement officers. Id. at 573, 406 S.E.2d at 

847. In Annadale, our Supreme Court also noted that the 

forensic pathologist was the Chief Medical Examiner, was 

accepted as an expert in forensic pathology, and was wellqualified to provide an opinion that was helpful to the jurors. 

Id. The forensic pathologist was also subjected to cross-
-52-

examination by the defendant’s counsel. Id. Our Supreme Court 

held under these circumstances, the trial court did not err in 

allowing the forensic pathologist to provide his opinion 

concerning the cause of the victim’s death, even without 

physical evidence showing the cause of death. Id.

We face a similar situation in this case. Here, the 

forensic pathologists examined the body and eliminated other 

causes of death while drawing upon their experience, education, 

knowledge, skill, and training. Both doctors knew from the 

criminal investigation into her death that Ms. Tessneer’s home 

was broken into, that she had been badly bruised, that she had 

abrasions on her arm and vagina, that her panties were torn, and

that DNA obtained from a vaginal swab containing sperm matched 

Defendant’s DNA samples. The doctors’ physical examination did 

not show a cause of death, but both doctors drew upon their 

experience performing such autopsies in stating that suffocation 

victims often do not show physical signs of asphyxiation. The 

doctors also eliminated all other causes of death before 

arriving at asphyxiation, which Defendant contends is not a 

scientifically established technique. However, the reliability 

criterion at issue here is nothing more than a preliminary 

inquiry into the adequacy of the expert’s testimony. Howerton, 
-53-

358 N.C. at 460–61, 597 S.E.2d at 687–88. Accordingly, the 

doctors’ testimony met the first prong of Howerton so that “any 

lingering questions or controversy concerning the quality of the 

expert’s conclusions go to the weight of the testimony rather 

than its admissibility.” Id. at 461, 597 S.E.2d at 688

(emphasis added).

Concerning the second portion of the Howerton inquiry, “the 

trial court must determine whether the witness is qualified as 

an expert in the subject area about which that individual 

intends to testify.” Howerton, 358 N.C. at 461, 597 S.E.2d at 

688. “Whether a witness has the requisite skill to qualify as 

an expert in a given area is chiefly a question of fact, the 

determination of which is ordinarily within the exclusive 

province of the trial court.” State v. Goodwin, 320 N.C. 147, 

150, 357 S.E.2d 639, 641 (1987) (emphasis added). “[A] jury may 

be enlightened by the opinion of an experienced cellar-digger, 

or factory worker, or shoe merchant, or a person experienced in 

any other line of human activity. Such a person, when 

performing such a function, is as truly an ‘expert’ as is a 

learned specialist . . . .” 2 Kenneth S. Broun, Brandis & Broun 

on North Carolina Evidence § 184 at 701–02 (7th ed. 2011) 

(footnotes omitted).
-54-

Here, the trial court accepted both Dr. Tracy and Dr. Butts 

as experts in forensic pathology. Defendant did not object to 

Dr. Butts being qualified as an expert in the field of forensic 

pathology, but did unsuccessfully object to Dr. Tracy being 

qualified as an expert in forensic pathology. Dr. Butts had 

performed around 6,700 to 6,800 forensic autopsies. Both Dr. 

Butts and Dr. Tracy were cross-examined by Defendant. The trial 

court conducted voir dire prior to allowing their testimony. 

Under these facts, it is clear that the trial court did not 

abuse its discretion.

The third component in the Howerton test is whether the 

testimony is relevant. Relevant evidence is defined as “having 

any tendency to make the existence of any fact that is of 

consequence to the determination of the action more probable or 

less probable than it would be without the evidence.” N.C. Gen.

Stat. § 8C–1, Rule 401 (2013). “Evidence is relevant if it has 

any logical tendency, however slight, to prove a fact in issue 

in the case.” State v. Tadeja, 191 N.C. App. 439, 444, 664 

S.E.2d 402, 407 (2008) (quotation marks, citation, and 

alterations omitted).

Defendant argues that “[t]his evidence was extremely 

prejudicial,” although Defendant also argues that “[t]he cause 
-55-

of death was important,” noting that a different result might

have been reached had the jury not heard the doctors’ opinions 

as to the cause of death. Defendant essentially argues that the 

evidence was important and relevant, but makes an additional 

argument that the evidence was prejudicial. We find Defendant’s 

argument concerning relevancy without merit. Accordingly, we 

hold that the trial court did not abuse its discretion in 

allowing the expert testimony of Dr. Tracy and Dr. Butts.

IV. Conclusion

For the reasons stated above, we find no error in the trial 

court’s judgments.

NO ERROR.

Judges ERVIN and DAVIS concur.