                                 NO. COA14-50

                     NORTH CAROLINA COURT OF APPEALS

                         Filed:      6 January 2015


STATE OF NORTH CAROLINA


    v.                                      Wake County
                                            Nos. 10 CRS 225; 5855-56

JASON KEITH WILLIFORD



    Appeal by defendant from judgments entered 7 June 2012 by

Judge Paul G. Gessner in Wake County Superior Court.             Heard in

the Court of Appeals 13 August 2014.


    Attorney General Roy Cooper, by Assistant Attorney General
    Anne M. Middleton, for the State.

    Law Offices of John R. Mills NPC, by John R. Mills, for
    defendant-appellant.


    CALABRIA, Judge.


    Jason Keith Williford (“defendant”) appeals from judgments

entered upon jury verdicts finding him guilty of first degree

murder,     first   degree   rape,    and     misdemeanor   breaking   and

entering.    We find no error.

                             I. Background

    Late in the evening on 5 March 2010, defendant broke into

the home of John Geil (“Geil”) in Raleigh, North Carolina.             On
                                          -2-
that   date,    Kathy     Taft    (“Taft”)      and   her    sister,    Dina   Holton

(“Holton”), were staying in Geil’s home while Taft recovered

from a recent surgery.             Geil was out of town, and so the two

women were in his home alone.

       Defendant entered Taft’s bedroom and struck her in the head

with   a     blunt   object      multiple    times.         He   then   removed   her

clothing and raped her before exiting the home.                         Holton heard

noises in the house during the night, but did not discover what

had happened to Taft until the next morning.

       In the morning on 6 March 2010, Holton went to the bedroom

where she had last seen Taft, and she discovered Taft completely

nude    and    bleeding     from    the     head.     Holton     called    911,   and

emergency medical services transported Taft to the hospital.                        At

the hospital,        a   nurse noticed signs of trauma around Taft’s

vagina and blood on her anus.               As a result, hospital personnel

collected a rape kit in order to obtain DNA samples.                              Taft

underwent emergency neurosurgery, but ultimately died from her

head wounds on 9 March 2010.

       The    DNA    samples      from    the    rape   kit      were    tested   and

determined to contain male DNA.                 As a result, law enforcement

officers from the Raleigh Police Department (“RPD”) canvassed

the area around Geil’s home and attempted to obtain DNA samples
                                             -3-
from male residents.                When    RPD Detective Zeke Morris (“Det.

Morris”)    reached      the    home        of    defendant,     who    lived      nearby,

defendant   did    not    invite       Det.       Morris    inside,    as   all      of   his

neighbors   had    done,       but    only       spoke   briefly     with   him.          Det.

Morris returned later to seek a sample of defendant’s DNA, and

defendant refused to provide the sample.

       After defendant’s refusal, members of the RPD Fugitive Unit

began conducting surveillance on him in an attempt to obtain his

DNA.     On 15 April 2010, RPD Officer Gary L. Davis (“Officer

Davis”) parked his unmarked vehicle in a parking lot directly

adjacent    to    defendant’s         multi-unit         apartment     building       while

defendant    was    shopping         at     a     nearby    grocery     store.            When

defendant returned, Officer Davis observed defendant smoking a

cigarette as he exited his vehicle. Defendant then finished the

cigarette and dropped the butt onto the ground in the parking

lot.     Shortly    thereafter,            RPD    Officer    Paul     Dorsey   (“Officer

Dorsey”) entered the parking lot.                        Officer Dorsey approached

defendant   and    spoke       to    him     in    order    to   distract      him    while

Officer Davis retrieved the cigarette butt.                         After securing the

butt, the officers left the apartment building.

       Subsequent DNA testing revealed that defendant’s DNA was a

match for the DNA collected from the rape kit and from the crime
                                            -4-
scene.        Consequently, defendant was arrested and indicted for

first     degree       murder,      first    degree    rape       and     first     degree

burglary.        On 16 December 2010, the State notified defendant

that     it     intended       to    rely    upon     evidence       of     aggravating

circumstances and seek a sentence of death for the charge of

first degree murder.

       On 26 August 2011, defendant filed a motion to suppress the

DNA     evidence       which   was    collected       from    the       cigarette    butt

recovered       from    the    parking      lot.      In   his    motion,     defendant

contended that the cigarette butt was discarded in an area which

constituted the curtilage of his apartment and that defendant

never surrendered his privacy interest in the cigarette butt.

Defendant argued that under these circumstances, Officer Davis’s

retrieval and subsequent analysis of the cigarette butt without

a warrant violated his constitutional rights.

       Defendant’s motion was heard on 20 February 2012.                             On 9

March 2012, the trial court entered an order denying the motion

to suppress.           The court concluded that the parking lot where

Officer       Davis    recovered     the    cigarette      butt     was    outside    the

curtilage       of     defendant’s     apartment       and    that      defendant      had

voluntarily discarded it.
                                             -5-
      Defendant was tried by a jury beginning 16 May 2012 in Wake

County    Superior        Court.    On   1    June    2012,    the   jury    returned

verdicts finding defendant guilty of first degree murder, first

degree    rape,     and     the    lesser-included      offense      of   misdemeanor

breaking and entering.              On 7 June 2012, the jury recommended

that defendant be sentenced to life imprisonment without the

possibility        of   parole.      Based     upon   this     recommendation,       the

trial court sentenced defendant to life without parole for the

first     degree        murder     charge.         Defendant    also      received     a

consecutive sentence of a minimum of 276 months to a maximum of

341 months for the first degree rape charge and a concurrent

sentence of 45 days for the misdemeanor breaking and entering

charge.      Defendant appeals.

                             II.    Motion to Suppress

      Defendant argues that the trial court erred by denying his

motion to suppress the DNA evidence obtained from the discarded

cigarette butt.           Specifically, defendant contends: (1) that the

cigarette butt was discarded in the curtilage of his dwelling;

(2)   that    he    never    abandoned       his   possessory     interest    in     the

cigarette butt; and (3) that the DNA on the cigarette butt was

improperly tested without a warrant. We disagree.
                                            -6-
      Our    review    of    a   trial      court’s       denial    of    a    motion   to

suppress is “strictly limited to determining whether the trial

judge’s underlying findings of fact are supported by competent

evidence,     in    which    event    they        are     conclusively        binding   on

appeal, and whether those factual findings in turn support the

judge’s ultimate conclusions of law.” State v. Cooke, 306 N.C.

132, 134, 291 S.E.2d 618, 619 (1982).                     Since defendant does not

challenge any of the trial court’s findings, “our review is

limited to the question of whether the trial court’s findings of

fact, which are presumed to be supported by competent evidence,

support its conclusions of law and judgment.”                       State v. Downing,

169 N.C. App. 790, 794, 613 S.E.2d 35, 38 (2005).

      A. Curtilage

      Defendant first argues that Officer Davis’s seizure of the

cigarette    butt     violated    his       constitutional         rights     because   it

occurred     within    the   curtilage        of    his    apartment.          “Both    the

United States and North Carolina Constitutions protect against

unreasonable searches and seizures.” State v. Otto, 366 N.C.

134, 136, 726 S.E.2d 824, 827 (2012) (citing U.S. Const. amend.

IV;   N.C.    Const.    art.     I,     §    20).         “Because       an    individual

ordinarily possesses the highest expectation of privacy within

the curtilage of his home, that area typically is ‘afforded the
                                    -7-
most stringent Fourth Amendment protection.’” State v. Lupek,

214 N.C. App. 146, 151, 712 S.E.2d 915, 919 (2011) (quoting

United States v. Martinez-Fuerte, 428 U.S. 543, 561, 49 L. Ed.

2d 1116, 1130, 96 S. Ct. 3074, 3084 (1976)).

    “The United States Supreme Court has . . . defined the

curtilage of a private house as ‘a place where the occupants

have a reasonable and legitimate expectation of privacy that

society is prepared to accept.’” State v. Washington, 134 N.C.

App. 479, 483, 518 S.E.2d 14, 16 (1999) (quoting Dow Chemical

Co. v. United States, 476 U.S. 227, 235, 90 L. Ed. 2d 226, 235,

106 S. Ct. 1819, 1825 (1986)).          The United States Supreme Court

has further established that the “curtilage question should be

resolved    with    particular    reference       to   four   factors:     the

proximity   of   the   area   claimed   to   be   curtilage   to   the   home,

whether the area is included within an enclosure surrounding the

home, the nature of the uses to which the area is put, and the

steps taken by the resident to protect the area from observation

by people passing by.” United States v. Dunn, 480 U.S. 294, 301,

94 L. Ed. 2d 326, 334-35, 107 S. Ct. 1134, 1139 (1987).

    Although       this   Court   has   previously     utilized    the    Dunn

factors to determine whether certain areas are located within a

property’s curtilage, see, e.g., State v. Washington, 86 N.C.
                                      -8-
App. 235, 240-42, 357 S.E.2d 419, 423-24 (1987), we have never

done so in the specific context of multi-unit dwellings.                       A

federal   appeals    court   which    considered      this   issue   in     that

context noted that “[i]n a modern urban multi-family apartment

house, the area within the ‘curtilage’ is necessarily much more

limited than in the case of a rural dwelling subject to one

owner’s control.”      United States v. Cruz Pagan, 537 F.2d 554,

558 (1st Cir. 1976). This is because “none of the occupants can

have a reasonable expectation of privacy in areas that are also

used by other occupants.” State v. Johnson, 793 A.2d 619, 629

(N.J. 2002) (internal quotation and citation omitted).

       Thus, in United States v. Stanley, the United States Court

of Appeals for the Fourth Circuit held that “the common area

parking lot on which [the defendant]’s automobile was parked was

not within the curtilage of his mobile home.” 597 F.2d 866, 870

(4th Cir. 1979).     In reaching this conclusion, the Stanley Court

relied upon the following factors: (1) that “[t]he parking lot

was used by three other tenants of the mobile home park;” (2)

that the parking lot “contained parking spaces for six or seven

cars. No particular space was assigned to any tenant;” and (3)

that   “[a]lthough   on   the   day   of    the   search   the   Cadillac   was

parked in a space close to [the defendant]’s home, that space
                                      -9-
was not annexed to his home or within the general enclosure

surrounding his home.” Id.           Other courts have also reached the

same   conclusion    based   upon    similar     facts.    See,        e.g.,   Cruz

Pagan, 537 F.2d at 558 (“In sum, we hold that the agents’ entry

into the underground parking garage of El Girasol Condominium

did not violate the fourth amendment. . . .”); United States v.

Soliz, 129 F.3d 499, 503 (9th Cir. 1997) (Common parking area in

an   apartment    complex    which   “was    a   shared   area    used    by   the

residents   and     guests   for     the    mundane,   open      and    notorious

activity of parking” was not curtilage.), overruled on other

grounds by United States v. Johnson, 256 F.3d 895, 913 n.4 (9th

Cir. 2001) (en banc); Commonwealth v. McCarthy, 705 N.E.2d 1110,

1114   (Mass.    1999)   (“Because    the    defendant    had    no    reasonable

expectation of privacy in the visitor’s parking space, the space

was not within the curtilage of the defendant’s apartment.”);

and State v. Coburne, 518 P.2d 747, 757 (Wash. Ct. App. 1973)

(“The vehicle was parked in an alley parking lot available to

all users of the apartments. The area where the car was parked

is not a ‘curtilage’ protected by the Fourth Amendment.”).                     But

see Joyner v. State, 303 So.2d 60, 64 (Fla. Dist. Ct. App. 1974)

(holding that “parking areas usually and customarily used in

common by occupants of apartment houses, condominiums and other
                                           -10-
such complexes with other occupants thereof constitute a part of

the   curtilage        of     a    specifically       described          apartment     or

condominium or other living unit thereof”).

      In     the    instant       case,    the     trial     court’s      unchallenged

findings indicate that the shared parking lot where defendant

discarded the cigarette butt was located directly in front of

defendant’s        four-unit      apartment       building,    that      the    lot   was

uncovered, that it included five to seven parking spaces used by

the   four    units,    and       that    the    spaces    were    not    assigned     to

particular units.           The court further found that the area between

the road and the parking lot was heavily wooded, but that there

was no gate restricting access to the lot and there were no

signs which suggested either that access to the parking lot was

restricted     or    that    the    lot   was     private.        Applying     the    Dunn

factors to these findings, we conclude that the parking lot was

not located in the curtilage of defendant’s building.                          While the

parking lot was in close proximity to the building, it was not

enclosed, was used for parking by both the buildings’ residents

and the general public, and was only protected in a limited way.

Consequently, the parking lot was not a location where defendant

possessed “a reasonable and legitimate expectation of privacy

that society is prepared to accept.” Washington, 134 N.C. App.
                                             -11-
at    483,   518        S.E.2d    at   16    (internal       quotation       and    citation

omitted).          Thus,     defendant’s         constitutional       rights       were     not

violated when Officer Davis seized the discarded cigarette butt

from   the    parking       lot    without        a   warrant.        This       argument    is

overruled.

       B.    Possessory Interest

       Defendant next contends that even if the parking lot was

not    considered         curtilage,        he    still     maintained       a    possessory

interest in the cigarette butt since he did not put it in a

trash can or otherwise convey it to a third party.                               However, it

is well established that “[w]here the presence of the police is

lawful      and    the    discard      occurs      in   a    public   place        where    the

defendant     cannot       reasonably        have     any    continued    expectancy         of

privacy in the discarded property, the property will be deemed

abandoned         for     purposes     of    search         and   seizure.”        State     v.

Cromartie, 55 N.C. App. 221, 224, 284 S.E.2d 728, 730 (1981)

(internal         quotations,          citation,          and     brackets         omitted).

Moreover, “[w]hen one abandons property, ‘[t]here can be nothing

unlawful     in     the    Government’s          appropriation      of   such      abandoned

property.’” Id. at 225, 284 S.E.2d at 730. (quoting Abel v.

United States, 362 U.S. 217, 241, 4 L. Ed. 2d 668, 687, 80 S.

Ct. 683, 698 (1960)).                  In the instant case, we have already
                                            -12-
determined      that        defendant   had    no     reasonable       expectation     of

privacy in the parking lot, and thus, by dropping the cigarette

butt in the lot, he is deemed to have abandoned any interest in

it.    This argument is overruled.

       C.   DNA Testing

       Finally,      defendant       argues    that    even     if    law    enforcement

lawfully obtained the cigarette butt, they still were required

to obtain a warrant before testing the butt for his DNA because

defendant had a legitimate expectation of privacy in his DNA.

Defendant cites Maryland v. King,                   ___ U.S. ___, 186 L. Ed. 2d

1, 133 S. Ct. 1958            (2013) in support of his argument. In King,

the    United      States         Supreme     Court     considered          whether   the

warrantless, compulsory collection and analysis of a DNA sample

from   individuals          who   had   been    arrested       for    felony    offenses

violated the Fourth Amendment. Id. at ___, 186 L. Ed. 2d at 17,

133 S. Ct. at 1966.            The Court held that this warrantless search

was reasonable because of the state’s significant interest in

accurately identifying the arrestee.                   Id. at ___, 186 L. Ed. 2d

at 32, 133 S. Ct. at 1980.

       King is inapplicable to the instant case.                         In King, the

defendant’s       DNA       sample   had    been      directly       obtained    by   law

enforcement     in      a    compulsory     seizure     that    was    indisputably     a
                                         -13-
Fourth Amendment search. The King Court only decided whether

that    search     was    reasonable.           In   contrast,      in     this    case,

defendant    had    abandoned     his    interest      in   the     cigarette      butt,

without any compulsion from law enforcement, and thus, we must

first determine whether the extraction of defendant’s DNA from

the abandoned butt constituted a search at all.                      This Court has

specifically held that “[t]he protection of the Fourth Amendment

against unreasonable searches and seizures does not extend to

abandoned property.”           State v. Eaton, 210 N.C. App. 142, 148,

707 S.E.2d 642, 647 (2011).             While we have not yet applied this

general     principle     to     the    retrieval     of     DNA    from     abandoned

property, courts in other jurisdictions have relied upon it to

conclude that the extraction of DNA from an abandoned item does

not    implicate    the    Fourth      Amendment.       See,       e.g.,    People       v.

Gallego, 117 Cal. Rptr. 3d 907, 913 (Cal. Ct. App. 2010) (“By

voluntarily      discarding       his    cigarette         butt    on      the    public

sidewalk, defendant actively demonstrated an intent to abandon

the item and, necessarily, any of his DNA that may have been

contained    thereon.      ...    On    these    facts,     we     conclude       that   a

reasonable expectation of privacy did not arise in the DNA test

of the cigarette butt, and consequently neither did a search for

Fourth Amendment purposes.”); Raynor v. State, 99 A.3d 753, 767
                                                  -14-
(Md.   2014)       (“[W]e       hold       that    DNA    testing       of   .   .       .   genetic

material, not obtained by means of a physical intrusion into the

person’s body, is no more a search for purposes of the Fourth

Amendment,         than        is    the     testing          of    fingerprints,            or    the

observation of any other identifying feature revealed to the

public—visage, apparent age, body type, skin color.”); and State

v. Athan, 158 P.3d 27, 37 (Wash. 2007) (en banc) (“There is no

subjective expectation of privacy in discarded genetic material

just   as   there         is    no   subjective               expectation     of     privacy        in

fingerprints        or     footprints         left       in    a    public   place.          ...   The

analysis      of     DNA        obtained      without          forcible      compulsion            and

analyzed by the government for comparison to evidence found at a

crime scene is not a search under the Fourth Amendment.”).                                          We

find   these       cases        persuasive,         and       thus,    we    hold    that          once

defendant voluntarily abandoned the cigarette butt in a public

place,   he    could       no       longer    assert          any   constitutional            privacy

interest in it.           Accordingly, the extraction of his DNA from the

butt did not constitute a search for purposes of the Fourth

Amendment. This argument is overruled.

                                       III.        Judgment

       Defendant         argues      that     his    judgment         includes       a       clerical

error, in that the trial court failed to check the “Class A
                                       -15-
Felony” box in the portion of the judgment that explains why

defendant    was    sentenced    to   life    imprisonment   without    parole.

However, the judgment indicates that defendant was sentenced for

a Class A felony in two other locations.                  Thus, we find it

unnecessary to remand this case for the judgment to indicate,

for   a   third     time,   that      defendant    was   sentenced     to   life

imprisonment based upon a conviction for a Class A felony.

                                IV.   Conclusion

      Pursuant to the factors in Dunn, the shared parking lot

located in front of defendant’s four-unit apartment building was

not   part   of    the   curtilage    of   defendant’s   apartment.         Since

defendant did not have a reasonable expectation of privacy in

the parking lot, he abandoned his cigarette butt by discarding

it there.     After defendant voluntarily abandoned the cigarette

butt, its subsequent collection and analysis by law enforcement

did not implicate defendant’s constitutional rights. Defendant

received a fair trial, free from error.

      No error.

      Judges ELMORE and STEPHENS concur.
