Carolina Criminal Defense & DUI Lawyer UpdatesWarrantless DNA testing in North Carolina does not necessarily require police to obtain a new search warrant when the biological evidence was lawfully collected during an earlier investigation. In an August 5, 2026 opinion, State v. Howze, the North Carolina Court of Appeals approved DNA testing of a bloodstained shirt collected in 2016 and later used to connect the defendant to a 2019 murder, challenging the legality of the original seizure and resulting in a Fourth Amendment search and seizure analysis.
| DNA Evidence Issue | What It Means in a North Carolina Criminal Case |
|---|---|
| How police obtained the DNA | The analysis usually begins with how law enforcement came into possession of the biological material. A lawful warrant, consent, abandonment, plain view, statutory collection procedure, or another recognized legal basis may permit police to obtain evidence containing DNA. |
| DNA taken directly from your body | A blood draw or cheek swab implicates constitutional protections because police are obtaining biological material directly from you. The legal authority for that collection should be examined separately from any later laboratory testing. |
| DNA on discarded property | A cup, cigarette, bottle, straw, napkin, or similar item may contain DNA after it is discarded. Whether police may collect and test the item can depend on abandonment, where the property was left, and whether officers entered a constitutionally protected area to retrieve it. |
| DNA on lawfully seized property | Clothing, weapons, vehicles, phones, and other physical evidence may contain blood, saliva, skin cells, hair, or other biological material. If police lawfully possess the item, later forensic testing may present a different constitutional question from the original seizure. |
| Testing evidence already in police possession | Police may not necessarily need a new warrant merely because investigators later decide to conduct DNA testing on evidence they already lawfully possess. How the evidence originally came into government custody can therefore become key in a suppression analysis. |
| DNA from an older or unrelated investigation | Biological evidence collected during one investigation may later become relevant to another investigation. The passage of time or the fact that the investigations are unrelated does not, by itself, determine whether later testing is lawful. |
| How long can police keep biological evidence? | Evidence retention is a separate question from whether police can lawfully collect or test the evidence. The status of the investigation, preservation requirements, applicable statutes, and agency procedures may affect whether evidence must be retained, returned, destroyed, or removed from a database. |
| Challenging the original collection | A defense lawyer may examine whether police had a lawful basis to obtain the item or sample, whether officers were lawfully present, whether they had lawful access, and whether the facts existing at the time justified the seizure. |
| Challenging the DNA testing | Even when police lawfully obtained the evidence, DNA results might be challenged on the grounds of contamination, chain of custody, laboratory procedures, mixed samples, interpretation, statistical analysis, transfer, and other forensic issues. |
| What a DNA result actually proves | A DNA “match” can help identify the source of biological material, but it does not necessarily establish when the material was deposited, how it arrived at a location, what activity produced it, or whether the person committed the charged offense. |
State v. Howze is interesting in that the DNA evidence involved did not begin with a cheek swab, a discarded cup, an arrest-related DNA collection, or a search warrant directed toward the homicide being prosecuted.
It began with a bloody shirt.
In December 2016, J’Marius Howze went to a hospital after suffering a gunshot wound. A High Point police officer responded to investigate the shooting. The officer saw blood on Howze’s clothing and directed a crime-scene technician to collect the clothing as evidence. The investigation was never solved, and the shirt remained sealed in police evidence storage.
Several years later, High Point police were investigating the May 2019 shooting death of Cameron Owens. Investigators recovered a HiPoint nine-millimeter carbine rifle near the murder scene. Detective Buben located the shirt from Howze’s earlier shooting and submitted both the old clothing and swabs from the firearm to the State Crime Lab for DNA analysis. According to the opinion, the testing found Howze’s DNA on almost every sample submitted from the gun. That evidence became part of the probable-cause showing used to obtain a warrant for his arrest for first-degree murder.
Howze later moved to suppress the DNA evidence. His argument presented two distinct constitutional questions.
First, could police lawfully seize his clothing at the hospital in 2016?
Second, even if the shirt had been lawfully seized, could police years later analyze the biological material on it and use that DNA in an unrelated homicide investigation without obtaining another warrant?
The Court of Appeals answered both questions in favor of the State.
That second issue is what makes Howze somewhat interesting, at least from a factual basis.
Lawful Seizure of Evidence
Howze does not begin with the proposition that police can test whatever DNA happens to come into their possession. The Court must first determine whether law enforcement has lawfully obtained evidence from the outset.
In so doing, the State may rely on the longstanding plain-view doctrine.
A warrantless seizure may be permissible when an officer is lawfully situated to observe the evidence, the item’s evidentiary or incriminating character is immediately apparent, and the officer has lawful access to the object. North Carolina cases also recognize an inadvertence component to the plain-view analysis.
The phrase “immediately apparent” can, to some extent, be misleading. Police do not have to know with certainty precisely what later testing might reveal. Our appellate courts generally treat such issues as questions of probable cause.
It requires probable cause to believe that the item is evidence of criminal activity. That determination must be tied to the circumstances known at the time the item is seized, not to evidence discovered through later testing.
Officers responded to the hospital in 2016 after a reported shooting in which Mr. Howze and another man had been wounded. An officer observed Mr. Howze’s gunshot wound and bloodstained clothing while gathering information about that shooting. The Court of Appeals concluded that police had probable cause to treat the clothing as evidence of the firearm incident then being investigated. The clothing could contain blood or DNA from someone else, gunshot residue, hair, fibers, or other trace evidence bearing upon what had occurred.
The later 2019 murder presented a separate issue. DNA testing of biological material found on the lawfully seized shirt eventually connected Mr. Howze to an unrelated homicide. The court did not hold that police anticipated that connection when they seized the shirt. It held that the original seizure was lawful because the shirt had apparent evidentiary value in the shooting investigation, and that later forensic testing of lawfully obtained biological material did not constitute another search of Mr. Howze.
There is an interesting point buried in that analysis. The evidentiary justification supporting the original seizure and the investigative purpose of the later DNA testing were not the same. According to the Court of Appeals, however, the lawful seizure of the biological material eliminated Mr. Howze’s reasonable expectation of privacy in its subsequent forensic analysis.
That is the important legal issue. The State did not need probable cause in 2016 to believe the shirt connected Howze to the later murder in 2019. It needed probable cause to believe the shirt was evidence of the shooting police were investigating at the hospital. The court then treated the later DNA analysis as permissible secondary use of biological evidence already lawfully possessed.
Police Do Not Have Unlimited Access to Hospital Patients
If you are taken to a hospital after a shooting, a serious wreck, an assault, or a fight, there is a reasonable chance an officer will show up while you are still being treated. Most people assume that a treatment room is private space and that anything happening there stays between the patient and the medical staff. That assumption does not hold up in a criminal investigation. Hospital privacy rules govern what your doctors and nurses may disclose about your care. They do not turn a treatment area into a place officers can never enter, and they do not stop an officer from seeing what is in front of him.
That distinction is where the Howze case landed. Police responded to a report that two people had been shot. Officers went to the hospital to find out what happened and to speak with the wounded. While there, an officer saw blood on the patient’s clothing and had a crime scene technician collect it. The Court of Appeals held that the officer was somewhere he had a right to be, relying in part on an earlier decision approving an officer’s presence in an emergency room while gathering evidence about a shooting. What the officer could plainly see, he could act on.
Two practical points follow for anyone in that position.
The first is that being the victim does not protect your property. The clothing in Howze was collected while he was the one who had been shot, years before anyone suspected him of anything. Bloodstained clothing can hold evidence of a violent event no matter who the wearer turns out to be, and once officers take it as evidence, they can keep it while the case remains unsolved. In that case, the clothing sat sealed in an evidence locker for years and resurfaced in a completely different investigation.
The second is that police presence in a hospital is not unlimited. Howze does not say officers may walk into any treatment room whenever they want evidence. The ruling rested on why officers were there, what they were investigating, where the officer was standing, and what was visible from that lawful position. Change those facts and the analysis can change with them. Whether officers had a lawful right to be where they were, and lawful access to the thing they took, remains part of the constitutional question in every case.
There is also something worth understanding about the conversation itself. Officers commonly arrive at the hospital to take a statement, and people who believe they are the victim usually talk freely. You are not required to give a statement, and anything you say during that conversation can be used later. If you have been injured under circumstances that police are investigating, the safer course is to get medical care first and speak with a lawyer before giving a detailed account.
Once Police Lawfully Have Your DNA, They Can Test It Later
The part of this area of law that surprises most people is not the seizure. It is what happens afterward.
There is a common assumption that DNA is different from other evidence. It feels personal in a way a gun or a phone does not. It carries information about your health, your family, your ancestry. Many people believe that even if police lawfully took something of theirs, the government still needs fresh permission before running genetic testing on it, and certainly before using the result in some unrelated case years down the road.
North Carolina law does not work that way right now.
The controlling idea comes from a 2001 decision called State v. Barkley. A man voluntarily gave police a blood sample during a murder investigation, expecting it would clear him. It did. Police later used DNA from that same sample to link him to a different crime entirely, and he argued that the second use violated his constitutional rights. The Court of Appeals disagreed.
Drawing blood is a search, and the government must comply with the Constitution to conduct a search. But once the sample has lawfully left the body, the privacy interest that made the draw a search is gone. Testing what the government already lawfully holds is not a new search. A lawfully obtained blood sample gets treated much like any other piece of physical evidence that can be sent to a laboratory.
Howze extends that reasoning to a situation with no consent at all. He never volunteered anything. Police simply seized bloodstained clothing during an investigation into a shooting where he was the wounded person. The Court of Appeals held that the difference did not matter because the analysis turns on whether the evidence was lawfully obtained, not on how cooperative the person was when it was obtained. The clothing was lawfully seized, so testing the blood on it years later added no further intrusion.
Two things flow from that, and both are worth knowing before you find yourself on the wrong side of the law.
Your genetic material can outlive the investigation it came from. Evidence collected in one case can sit in storage for years and then be pulled, tested, and compared against something in an entirely different case, in a different city, involving people you have never met. Nothing in this decision requires police to go back to a judge before making that comparison.
And the moment that decides everything happens early. Whether the government can use a DNA result usually turns on whether it lawfully got the item in the first place. If the original seizure was unlawful, the later test result may be challengeable no matter how sophisticated the laboratory work. If the original seizure was lawful, arguing about the test itself is a much harder road. That is why an experienced defense lawyer starts with how the evidence came into police hands, not with the crime lab report.
None of that means a DNA result is unbeatable. A constitutional ruling in the State’s favor says nothing about whether the sample was contaminated, whether the chain of custody holds, whether a mixed sample was interpreted correctly, whether the laboratory followed its own protocols, or what the statistical numbers actually mean. It also says nothing about when your DNA got somewhere or how it got there. Those remain fair fights.
Getting Property and Samples Back From Police
People who have been the victim of a crime commonly assume their belongings will be returned once they are released from the hospital. That is not how evidence storage works. Property collected as part of an open investigation stays in police custody, and an unsolved case is treated as still open even after years of inactivity. The witnesses in this case testified that a stalled investigation is not a closed one and that evidence is held precisely because new information may surface later. Whether property can be released, and what happens to biological material on it, depends on the status of the case, the agency’s retention policy, and the statutes governing preservation of biological evidence. Those are worth asking about early rather than assuming that time alone clears the shelf.
Can You Challenge DNA Evidence?
Everything in this decision rests on one condition. Police had the evidence lawfully. Remove that condition and the analysis changes.
If the original seizure violates the Fourth Amendment or Article I, Sections 19 or 20 of the North Carolina Constitution, a later DNA result presents a very different problem for the State.
Sometimes that is why the first questions a defense lawyer asks have nothing to do with genetics.
- Where did the item come from?
- Why did police have it?
- Was the officer lawfully present?
- Did he have lawful access to the seized evidence?
- Was its evidentiary value actually apparent at the time, or is the State reasoning backward from what testing later revealed?
The Howze decision also does not treat all genetic testing as the same.
A related overstatement is worth heading off. It would be easy to read Howze as a case that holds DNA lasts forever and that police may keep and test whatever they have for as long as they want. How long law enforcement may retain each category of biological material, what the statutes require for preservation, and when samples must be destroyed or expunged are separate questions potentially worthy of consideration.
Motions to Suppress DNA Evidence
Howze may, in fact, change the focus of criminal defense lawyers in cases involving previously collected biological evidence.
A motion that merely argues, “My client never consented to this later DNA test,” could face a substantial obstacle when the State can establish that police already lawfully possessed the biological evidence. Howze and Barkley give prosecutors some level of cover for that general theory.
The factual and legal analysis might need to focus on other issues, such as:
- Why did law enforcement possess the evidence?
- Was there a warrant? Consent? Abandonment? Plain view? A statutory collection procedure?
- Was the officer lawfully present when the evidence was observed?
- Did police have a lawful right of access?
- Was the evidentiary significance actually apparent at the time, or is the State using later developments to justify an earlier seizure?
Those questions would address the constitutional foundation of the evidence itself.
To be clear, a constitutional ruling does not establish that a DNA result is scientifically reliable, that the sample was uncontaminated, that chain of custody is satisfactory, that a mixture was interpreted properly, or that the statistical testimony offered by the State accurately describes the significance of the result.
Nor does a DNA association necessarily establish when biological material was deposited, how it arrived at a particular location, or what activity produced it.
Howze answers an interesting, if not a somewhat factually odd/unique, search-and-seizure question. It does not decide every evidentiary question that may accompany DNA testimony at trial.
Discarded DNA Evidence in North Carolina
Police sometimes recover biological material from a cup, straw, cigarette, food container, bottle, napkin, or other property discarded in a public place. Those cases tend to focus on abandonment, reasonable expectations of privacy, curtilage, where police obtained the item, and whether officers physically intruded into a constitutionally protected area.
Howze presents a different route to the DNA crime lab.
The State did not argue that Howze abandoned the shirt. Police affirmatively seized it as evidence during a shooting investigation and retained it. The constitutional question, therefore, began with the plain-view doctrine and lawful police possession rather than with abandonment.
Frequently Asked Questions | Warrantless DNA Testing in North Carolina
North Carolina police may test DNA evidence without obtaining a separate warrant when the biological material was already lawfully in their possession. The North Carolina Court of Appeals has held that once evidence containing blood or other biological material is lawfully seized, comparing that material against evidence from another investigation is not a new search requiring judicial authorization. Can North Carolina police test DNA evidence without a warrant?
North Carolina police can use DNA from an old case in a new one, as long as they got the evidence legally the first time. Evidence from an unsolved case can sit in a police storage locker for years. A detective working a different case can pull that item, send it to the crime lab, and compare the results to evidence in the newer case. Courts have said that does not create a new constitutional problem. What matters is whether police had a legal right to take the item back when they took it. It does not matter how much time has passed, whether you were the victim, a witness, or never charged in the first case. Can police use DNA collected during one investigation in a different criminal case?
Police need a lawful basis to take your property, and the possibility that an item carries DNA is not enough on its own. Before testing ever becomes an issue, the questions are whether the officer was lawfully present where the item was observed, whether its value as evidence of a crime was apparent at that moment, and whether the officer had lawful access to it. When those conditions are met, police may seize the item without a warrant and send it for testing later. When they are not, the seizure itself was unlawful, and the DNA results that followed from it remain open to challenge. Can police seize anything that might contain DNA?
Police may take bloodstained clothing from a hospital patient without a warrant when officers are lawfully at the hospital investigating a crime and blood is plainly visible from where they are standing. That can happen whether the patient is a suspect, a witness, or the person who was shot. Medical privacy rules limit what your doctors and nurses may disclose. That does not always mean a treatment room is off limits to police. Their presence may still be subject to certain limits, such as why officers were there and what they could actually see at the time. Can police seize bloody clothing from someone receiving treatment at a hospital?
Taking biological material directly from a person, such as drawing blood or swabbing the inside of a cheek, is treated as a search under both the federal and North Carolina constitutions. Testing that material afterward is treated differently. North Carolina courts have held that once a sample has lawfully been obtained, the privacy interest that made the collection a search no longer applies, and running scientific analysis on what police already lawfully possess is not a second search requiring separate approval. The same reasoning covers biological material found on lawfully seized property, such as blood on clothing. The constitutional question is how police obtained the material, not what the crime lab did with it later. Is DNA testing a Fourth Amendment search?
DNA evidence might be challenged on several fronts. Defense counsel might question how the item was seized, whether officers had lawful access to it, how the evidence was stored and handled, whether the sample was contaminated, how a mixed sample was interpreted, whether the laboratory followed its own procedures, and whether the statistics offered at trial fairly describe what the result means. A DNA match doesn’t answer when biological material was left behind, how it got there, or what someone was doing at the time. Can you challenge DNA evidence?
Police retention of biological evidence depends on the status of the case and the rules governing that category of evidence, not on any single rule permitting indefinite storage. Items collected during an unsolved investigation may remain in police custody for years, because an inactive case is not treated as a closed one, and evidence held that way can be retrieved and tested long afterward. Separate statutes and agency policies address preservation requirements, destruction, and expunction for particular types of evidence and particular case outcomes. Whether a specific item may be released or must be preserved is worth asking about directly rather than assuming that time alone clears the shelf. Can police keep DNA evidence forever?
North Carolina takes a DNA sample at arrest for a specific list of serious offenses, not for every felony charge. The list includes murder, manslaughter, sex offenses, serious assaults, kidnapping, human trafficking, arson, burglary, armed robbery, stalking, and offenses requiring sex offender registration, along with attempts and conspiracies to commit them. The sample is usually a cheek swab taken at arrest or at fingerprinting. When someone is arrested without a warrant, the sample is not supposed to be taken until a judicial official has made a probable cause determination. Does North Carolina take your DNA when you are arrested?
North Carolina law requires the State Crime Laboratory to remove your DNA record and destroy your sample when the case ends in your favor. That covers a dismissal, an acquittal, a conviction for only a lesser misdemeanor that does not itself require a sample, and situations where no charge was filed within the statute of limitations. Winning your case does not clear the database when the State has an independent reason to keep your DNA on file, such as a prior conviction or a separate arrest that requires collection on its own. In that situation the sample stays, even though this particular charge went away. If your case is dismissed, does the State keep your DNA?
Discarded DNA evidence is genetic material left behind on something a person threw away or walked away from. It might be a coffee cup dropped in a trash can, a cigarette butt left on a sidewalk, a straw, a water bottle, or a napkin. Police collect the item and send it to the crime lab because the person’s DNA is on it, and they do so without a warrant, a cheek swab, or consent What is discarded DNA evidence?
DNA Evidence | Criminal Defense in North Carolina
DNA evidence can be powerful, but the laboratory result is only one part of the case. Defense lawyers may examine how police obtained the biological material, whether they had lawful authority to possess it, what testing was performed, how the sample was handled, and what the resulting association actually proves. A DNA match or inclusion does not necessarily establish when biological material was deposited, how it reached a particular location, or whether it proves the conduct alleged. In a serious criminal case, those questions can be just as consequential as the genetic comparison itself.
Bill Powers has practiced criminal law in North Carolina courtrooms since 1992. He is a former President of the North Carolina Advocates for Justice and a recipient of the North Carolina State Bar’s John B. McMillan Distinguished Service Award. He also enjoys teaching continuing legal education programs on criminal law, evidence, and trial advocacy. Powers Law Firm represents clients in criminal cases in Charlotte and surrounding communities and may be available to help with select serious felony matters elsewhere in North Carolina. If DNA evidence is part of your case, the office can be reached at 704-342-4357.
Appeals examined whether the defendant had the legal right, known as standing, to challenge the legality of electronic surveillance used in his arrest. The appellate court affirmed the trial court’s ruling that the defendant lacked standing to seek suppression because he could not demonstrate a personal privacy interest in the phone that was tracked.
question in constitutional law. When government agents enter private property without a warrant, what happens to the evidence they obtain?
Carolina?