Appeal by defendant from Smith (Donald L., Jr.), Judge. Judgment entered 9 April 1981 in Superior Court, Dare County. Heard in the Court of Appeals 11 March 1982.
Clark, Judge. Judges Arnold and Webb concur.
Defendant first argues that the trial court erred in admitting evidence concerning his hair samples which he contends were seized in violation of his constitutional rights under the Fourth and Fourteenth Amendments. The search warrant which authorized the plucking of hairs from defendant's scalp and arms was issued upon two affidavits. After voir dire on defendant's motion to suppress, the court found that the second affidavit attached to the application for the search warrant established no probable cause to believe that defendant committed the armed robbery and homicide on 2 September 1980. However, the court found that the first affidavit concerning an armed robbery on 2 July 1980 at the
Sea Ranch Motel in Kill Devil Hills was sufficient to establish probable cause to believe that the defendant had committed that crime and that the head and arm hairs of defendant would probably constitute evidence of that robbery. The court held that the warrant was valid as to the offense on 2 July 1980, and that after obtaining defendant's hair samples pursuant to the warrant, the State could use the evidence in the prosecution of defendant for the armed robbery and homicide on 2 September 1980. While we agree with the court's decision concerning the validity of the two affidavits, we do not believe that the warrant authorized the plucking of hairs from defendant's arms. In the Sea Ranch robbery on 2 July 1980, head hairs were found in pantyhose which were worn over the robber's head. The affidavit certainly presented probable cause to believe that head hairs from defendant would constitute evidence of the Sea Ranch robbery. But there was no justification in the Sea Ranch affidavit for the plucking of hairs from the defendant's arms. Therefore, the warrant was only sufficient to allow the seizure of the head hairs from defendant and not his arm hairs.
This does not, however, mean that the hair sample evidence was inadmissible. In his order denying defendant's motion to suppress, Judge Smith stated:
"5. That even if the search warrant issued on or about the first day of January, 1981 were invalid, which it is not, such search warrant would not be necessary to obtain hairs either from the head or arm of the defendant or both, for the reason that the seizure of said hairs are not protected by the Fourth and Fourteenth Amendments to the Constitution of the United States nor the Law of the Land Clause of the Constitution of North Carolina for the reason that they are individual personal traits such to view by any person, and defendant had no reasonable expectations of privacy in these features, since they are exposed to view as a matter of course.
6. That the methods used by the State of North Carolina in obtaining the hair from the head and left arm of the defendant were reasonable and just in all respects and went beyond the statutory and constitutional requirements that were applicable.
7. That the manner of obtaining said hair samples as aforesaid was valid, legal and constitutional in all respects and were not invalid, illegal or unconstitutional in any respect."
We agree with the trial judge that the seizure of hair samples from defendant's arms and head did not violate his Fourth and Fourteenth Amendment rights against unreasonable searches and seizures. The defendant was in custody at the time of the taking of the hair samples, and there is no evidence that the means used to obtain the samples was unreasonable. The seizure of hair samples from a defendant without a warrant after a lawful arrest is not an unreasonable seizure since it is a minor intrusion into and upon an individual's person. Grimes v. United States, 405 F.2d 477 (5th Cir. 1968); State v. Reynolds, 298 N.C. 380, 259 S.E.2d 843 (1979), cert. denied, 446 U.S. 941, 64 L. Ed. 2d 795, 100 S. Ct. 2164 (1980); State v. Sharpe, 284 N.C. 157, 200 S.E.2d 44 (1973). The Fourth Amendment's protection against unreasonable searches and seizures does not extend to an individual's personal traits. "One does not have a reasonable expectation of privacy in those features which serve to distinguish one individual from another and which are exposed to the view of others as a matter of course. United States v. Dionisio, 410 U.S. 1, 35 L. Ed. 2d 67, 93 S. Ct. 764 (1973); Davis v. Mississippi, 394 U.S. 721, 22 L. Ed. 2d 676, 89 S. Ct. 1394 (1969); State v. Sharpe, [supra]." State v. McDowell, 301 N.C. 279, 289-90, 271 S.E.2d 286, 293 (1980), cert. denied, 450 U.S. 1025, 68 L. Ed. 2d 220, 101 S. Ct. 1731 (1981). We hold that the expert testimony concerning the comparison of the hair samples from the rubber gloves and from defendant's arm was properly admitted and overrule this assignment of error.
Defendant next argues that the trial court erred in instructing the jury on the evidence of flight. He contends that the fact that defendant was found in Maryland and that he ran from the car after it was stopped by police is not evidence of flight. We disagree. State's evidence tended to show that defendant had moved to Maryland; he returned to pick up some belongings at his wife's house in Wanchese shortly after the robbery and shooting occurred; that after his return to Maryland, local police, ...