                              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
                                                 -2-
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.
                                        -3-
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 light-

colored 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
                                        -4-
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,
                                       -5-
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
                                           -6-
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
                                    -7-
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
                                              -8-
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
                                         -9-
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
                                          -10-
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
                                         -11-
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.
                                     -12-
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.
                                            -13-
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.
                                        -14-
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
                                        -15-
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
                                       -16-
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.
                                      -17-
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
                                             -18-
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.
                                      -19-
       After    Defendant   refused    to    voluntarily       provide     a   DNA

sample, Agent Kaiser spoke with Vivian Borders, Defendant’s ex-

wife.      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.
                                          -20-
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.
                              -21-
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
                                       -22-
            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
                                 -23-
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
                                           -24-
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.
                                        -25-
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 two-

year-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
                                      -49-
“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
                                       -50-
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   well-

qualified 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.
