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Sunday, May 10, 2015

State v. Adkins __ NJ __ (A-91-13)

State v.  Adkins  __ NJ __ (A-91-13)

  Decided May 4, 2015

LaVECCHIA, J., writing for a unanimous Court.

In this appeal, the Court considers the application of the United States Supreme Court’s decision in Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), to a case involving a blood draw, for purposes of determining blood alcohol content (BAC), that took place before the McNeely decision was issued.

In the early morning hours of December 16, 2010, defendant, Timothy Adkins, was involved in a single-car accident that resulted in injuries to his two passengers. Based on his performance on a series of field sobriety tests conducted at the scene of the accident, defendant was arrested on suspicion of Driving While Intoxicated (DWI) at approximately 2:27 a.m. Defendant was transported to the West Deptford Police Department and was advised of his Miranda rights; he invoked his right to counsel. Although Alcotest equipment was present, no breathalyzer test was administered at headquarters. Police conveyed defendant to the hospital, and the police obtained defendant’s BAC test results from a sample, drawn by hospital personnel at police direction, without the police first having secured a warrant or defendant’s prior written consent. Defendant was issued summonses for DWI, careless driving, and possession of an open container in a motor vehicle. Subsequently, a grand jury also charged him with fourth-degree assault by auto for recklessly operating a vehicle while under the influence of alcohol and causing bodily injury.

McNeely, which held that the natural metabolism of alcohol in an individual’s bloodstream does not constitute a per se exigency under a Fourth Amendment search and seizure analysis. 133 S. Ct. at 1568. In light of McNeely, on April 22, 2013, defendant filed a pre-trial motion to suppress the blood test results. Following a hearing at which only defendant testified, the court granted defendant’s motion, applying McNeely and finding that the police did not demonstrate exigent circumstances before securing a sample of defendant’s blood without a warrant.

The State appealed, and the Appellate Division reversed. 433 N.J. Super. 479 (App. Div. 2013). The panel explained that, prior to McNeely, New Jersey courts, including the Supreme Court, had cited the United States Supreme Court’s decision in Schmerber v. California, 384 U.S. 757 (1966), as support for the warrantless taking of blood samples from suspected intoxicated drivers, so long as the search was supported by probable cause and the sample was obtained in a medically reasonable manner. The panel thus reasoned that McNeely had worked a dramatic shift in the State’s Fourth Amendment jurisprudence and created a new rule of criminal procedure. The panel acknowledged that McNeely ordinarily would be applied retroactively to all cases pending on direct review, but noted that federal law generally does not apply the exclusionary rule when police conduct a search in good faith reliance on previously binding precedent, and concluded that the exclusionary rule should not be applied here.

The Court granted defendant’s petition for certification. 217 N.J. 588 (2014).

HELD: McNeely’s pronouncement on the Fourth Amendment’s requirements must apply retroactively to cases that were in the pipeline when McNeely was issued. Accordingly, the Appellate Division’s judgment is reversed. The matter is remanded to allow the State and defendant the opportunity to re-present their respective positions on exigency in a hearing on defendant’s motion to suppress the admissibility of the blood test results. In that hearing, potential dissipation of the evidence may be given substantial weight as a factor to be considered in the totality of the circumstances. The reviewing court must focus on the objective exigency of the circumstances faced by the officers.

1. In the context of the exigent-circumstances exception, the United States Supreme Court addressed the constitutionality of a warrantless blood draw from a suspected drunk driver in its 1966 decision in Schmerber, 384 U.S. 757. In finding the warrantless blood draw constitutionally permissible, the Court concluded that although a warrant is typically required for the taking of blood, the officer might have reasonably believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant threatened the destruction of evidence. The Court further added that defendant’s blood was drawn by a reasonable method and in a reasonable manner. Id. at 770-71.

2. Following Schmerber, courts were not in agreement on whether the decision created a rule that the dissipation of alcohol constituted a per se exigency justifying a warrantless search. To resolve the split in authority, the Supreme Court granted certiorari in McNeely, where the State of Missouri argued that “the fact that alcohol is naturally metabolized by the human body creates an exigent circumstance in every case.” 133 S. Ct. at 1567. The Supreme Court explained that Schmerber never created a per se rule but, instead, had incorporated a totality-of-the-circumstances test. Id. at 1558-60. Thus, in McNeely, the Court clarified that the dissipation of alcohol from a person’s bloodstream is not the beginning and end of the analysis for exigency in all warrantless blood draws involving suspected drunk drivers. Rather, courts must evaluate the totality of the circumstances in assessing exigency, one factor of which is the human body’s natural dissipation of alcohol.

3. The question before the Court is McNeely’s application to the warrantless drawing of defendant’s blood, which occurred prior to McNeely’s issuance. In State v. Wessells, 209 N.J. 395 (2012), the Court noted that “federal retroactivity turns on whether a new rule of law has been announced, coupled with an analysis of the status of the particular matter, that is, whether it is not yet final, is pending on direct appeal, or is being collaterally reviewed.” Id. at 411. The Court recognized that if a new rule has been established “for the conduct of criminal prosecutions” it will “be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Id. at 412 (quoting Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). Accordingly, in Wessells, the Court applied a new rule of law that had been established in a United States Supreme Court decision to a case pending review in New Jersey at the time the decision was handed down. As the Appellate Division found, and defendant and the State acknowledge, this case calls for a similar result. McNeely represents new law settling an area of criminal practice, thus, under federal retroactivity law, the decision deserves pipeline retroactive application. The United States Supreme Court has pronounced the standard to be applied under the Fourth Amendment to warrantless searches involving blood draws of suspected DWI drivers and, under Supremacy Clause principles, this Court is bound to follow it as the minimal amount of constitutional protection to be provided. Therefore, in accord with Wessells, McNeely applies retroactively to cases that were in the pipeline when it was decided.

4. The Court next considers whether the exclusionary rule should have any applicability in suppressing defendant’s blood test results when the police merely followed an asserted, commonly held understanding of Schmerber’s requirements in this State. Our State declined to recognize the exception to the exclusionary rule that was first established in United States v. Leon, 468 U.S. 897 (1984), and has consistently rejected a good faith exception to the exclusionary rule. This matter deals specifically with police conduct in reliance on case law in New Jersey that led law enforcement to the reasonable conclusion that the natural dissipation of alcohol from the human body created exigency sufficient to dispense with the need to seek a warrant. Although the Court’s decisions never expressly pronounced an understanding of Schmerber that per se permitted warrantless blood draws in all cases on the basis of alcohol dissipation alone, case law contains language that provides a basis for such a belief. The United States Supreme Court has now clarified the appropriate test to be applied to warrantless blood draws, and this Court adheres to that test without any superimposed exception.

5. In these pipeline cases, law enforcement should be permitted on remand to present their basis for believing that exigency was present in the facts surrounding the evidence’s potential dissipation and police response under the circumstances to the events involved in the arrest. The exigency in these circumstances should be assessed in a manner that permits the court to ascribe substantial weight to the perceived dissipation that an officer reasonably faced. Reasonableness of officers must be assessed in light of the existence of the McNeely opinion. But, in reexamining pipeline cases when police may have believed that they did not have to evaluate whether a warrant could be obtained, based on prior guidance from the Court that did not dwell on such an obligation, reviewing courts should focus on the objective exigency of the circumstances that the officer faced in the situation.

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for further proceedings consistent with this opinion.

CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA and SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE LaVECCHIA’s opinion.


State v. Perini Corporation


State v. Perini Corporation (A-121/122/123/135-11;
          070558)
          The statute of repose does not begin to run on claims
          involving an improvement that serves an entire project
          such as a high temperature hot water (HTHW) system --
          including those parts constructed in multiple,
          uninterrupted phases -- until all buildings served by
          the improvement have been connected to it.  In
          addition, the statute of repose does not apply to
          claims relating solely to manufacturing defects in a
          product used in the HTHW system.

State v. Kingkamau Nantambu (A-97-13


State v. Kingkamau Nantambu (A-97-13; 073589)
          When considering the admissibility of a recording
          containing a partial omission, the trial court must
          employ a two-part analysis.  First, the trial court
          must determine if the omission is unduly prejudicial,
          conducting an objective analysis focused on the
          evidentiary purposes for which the recording is being
          offered.  If the trial court, in its discretion, finds
          the omission unduly prejudicial, it must then consider
          whether it renders all or only some of the recording
          untrustworthy, and suppress only that portion deemed
          untrustworthy.

State v. Julie Kuropchak


State v. Julie Kuropchak (A-41-13; 072718)
          The municipal court’s admission of the Alcotest
          results without the foundational documents required by
          State v. Chun, 194 N.J. 54 (2009) was error.  Further,
          because the DDQ and DDR contained inadmissible
          hearsay, which may have unduly influenced the
          municipal court’s credibility findings, the matter is
          remanded for a new trial.

State v. K.P.S.


State v. K.P.S. (A-82-13; 073307)
          The decision rendered by the appellate panel in co-
          defendant’s appeal was not the law of the case in
          defendant’s later-heard appeal.  Defendant had a due
          process right under the New Jersey Constitution to
          have a meaningful opportunity to be heard on his
          appeal.

STATE OF NEW JERSEY VS. CHRISTOPHER MAZZARISI A-1860-13T4


STATE OF NEW JERSEY VS. CHRISTOPHER MAZZARISI
          A-1860-13T4
In this case, we examine the application of the Supreme Court's decisions in State v. Sugar (Sugar I), 84 N.J. 1 (1980), and State v. Sugar (Sugar II), 100 N.J. 214 (1985) to a case in which police surreptitiously recorded conversations between a defendant and his attorney when defendant surrendered after charges had been filed, a witness reported defendant had fired a gun at her, a search warrant was issued, and officers executing the warrant at defendant's residence observed a bullet hole in the wall and seized a gun and shell casing. Although we conclude the intrusion did not constitute a violation of the Sixth Amendment, we affirm the order excluding the testimony of three police witnesses and reverse an order that dismissed the indictment without prejudice. 

IN RE APPEAL OF THE DENIAL OF THE APPLICATION OF Z.L. FOR A FIREARMS PURCHASER IDENTIFICATION CARD AND THREE HANDGUN PERMITS A-5848-12T1


IN RE APPEAL OF THE DENIAL OF THE APPLICATION OF Z.L. FOR A FIREARMS PURCHASER IDENTIFICATION CARD AND THREE HANDGUN PERMITS
A-5848-12T1

We clarify that an application for a firearms purchaser identification card and handgun permits may be denied in circumstances where the applicant had been accused of assaulting his wife, but acquitted at trial, and where the police responded to his home on several occasions thereafter to address domestic dispute complaints brought by his wife. The application was properly denied pursuant to N.J.S.A. 2C:58-3(c)(5). 

STATE OF NEW JERSEY VS. TAWIAN BACOME A-3734-12T1

STATE OF NEW JERSEY VS. TAWIAN BACOME
          A-3734-12T1
Based on speculation that defendant and a passenger in his vehicle were involved in illegal drug activity, police officers attempted to follow but lost sight of the vehicle in or near Newark and waited in Woodbridge for its return. Once the vehicle returned, the officers stopped it, ostensibly because the passenger was not wearing his seatbelt. On approaching, an officer, who did not testify, observed defendant reach under his seat. Both driver and passenger were then ordered out of the vehicle; after the passenger exited, an officer was able to observe in plain view materials that suggested drug usage.
page2image19464 page2image19624 page2image19784 page2image19944 page2image20104

Based on that observation, a warrantless search of the vehicle ensued, and illegal drugs were found.
Because defendant's mere entry into and departure from Newark did not permit a reasonable suspicion of illegal drug activity and because the State had failed to present facts "that would create in a police officer a heightened awareness of danger" if the passenger were allowed to remain in the vehicle, State v. Smith, 134 N.J. 599, 618 (1994), the court found no sufficient ground for the ordering of the passenger out of the vehicle and reversed the denial of the suppression motion.
Judge Nugent filed a dissenting opinion regarding this determination.
In addition, the court noted that only hearsay testimony supported the assertion that the driver reached underneath his seat. Despite the understanding that N.J.R.E. 101(a)(2)(E) permits the admission of hearsay at a suppression hearing, the court suggested there may be circumstances where the consequences resulting from the suppression hearing are of such magnitude that the admission of hearsay may create a Confrontation Clause deprivation. The court, however, did not further consider this point because it had not been raised by defendant. 

Monday, May 04, 2015

State v. Adkins

State v.  Adkins  __ NJ __ (A-91-13)

  Decided May 4, 2015

LaVECCHIA, J., writing for a unanimous Court.

In this appeal, the Court considers the application of the United States Supreme Court’s decision in Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), to a case involving a blood draw, for purposes of determining blood alcohol content (BAC), that took place before the McNeely decision was issued.

In the early morning hours of December 16, 2010, defendant, Timothy Adkins, was involved in a single-car accident that resulted in injuries to his two passengers. Based on his performance on a series of field sobriety tests conducted at the scene of the accident, defendant was arrested on suspicion of Driving While Intoxicated (DWI) at approximately 2:27 a.m. Defendant was transported to the West Deptford Police Department and was advised of his Miranda rights; he invoked his right to counsel. Although Alcotest equipment was present, no breathalyzer test was administered at headquarters. Police conveyed defendant to the hospital, and the police obtained defendant’s BAC test results from a sample, drawn by hospital personnel at police direction, without the police first having secured a warrant or defendant’s prior written consent. Defendant was issued summonses for DWI, careless driving, and possession of an open container in a motor vehicle. Subsequently, a grand jury also charged him with fourth-degree assault by auto for recklessly operating a vehicle while under the influence of alcohol and causing bodily injury.

McNeely, which held that the natural metabolism of alcohol in an individual’s bloodstream does not constitute a per se exigency under a Fourth Amendment search and seizure analysis. 133 S. Ct. at 1568. In light of McNeely, on April 22, 2013, defendant filed a pre-trial motion to suppress the blood test results. Following a hearing at which only defendant testified, the court granted defendant’s motion, applying McNeely and finding that the police did not demonstrate exigent circumstances before securing a sample of defendant’s blood without a warrant.

The State appealed, and the Appellate Division reversed. 433 N.J. Super. 479 (App. Div. 2013). The panel explained that, prior to McNeely, New Jersey courts, including the Supreme Court, had cited the United States Supreme Court’s decision in Schmerber v. California, 384 U.S. 757 (1966), as support for the warrantless taking of blood samples from suspected intoxicated drivers, so long as the search was supported by probable cause and the sample was obtained in a medically reasonable manner. The panel thus reasoned that McNeely had worked a dramatic shift in the State’s Fourth Amendment jurisprudence and created a new rule of criminal procedure. The panel acknowledged that McNeely ordinarily would be applied retroactively to all cases pending on direct review, but noted that federal law generally does not apply the exclusionary rule when police conduct a search in good faith reliance on previously binding precedent, and concluded that the exclusionary rule should not be applied here.

The Court granted defendant’s petition for certification. 217 N.J. 588 (2014).

HELD: McNeely’s pronouncement on the Fourth Amendment’s requirements must apply retroactively to cases that were in the pipeline when McNeely was issued. Accordingly, the Appellate Division’s judgment is reversed. The matter is remanded to allow the State and defendant the opportunity to re-present their respective positions on exigency in a hearing on defendant’s motion to suppress the admissibility of the blood test results. In that hearing, potential dissipation of the evidence may be given substantial weight as a factor to be considered in the totality of the circumstances. The reviewing court must focus on the objective exigency of the circumstances faced by the officers.

1. In the context of the exigent-circumstances exception, the United States Supreme Court addressed the constitutionality of a warrantless blood draw from a suspected drunk driver in its 1966 decision in Schmerber, 384 U.S. 757. In finding the warrantless blood draw constitutionally permissible, the Court concluded that although a warrant is typically required for the taking of blood, the officer might have reasonably believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant threatened the destruction of evidence. The Court further added that defendant’s blood was drawn by a reasonable method and in a reasonable manner. Id. at 770-71.

2. Following Schmerber, courts were not in agreement on whether the decision created a rule that the dissipation of alcohol constituted a per se exigency justifying a warrantless search. To resolve the split in authority, the Supreme Court granted certiorari in McNeely, where the State of Missouri argued that “the fact that alcohol is naturally metabolized by the human body creates an exigent circumstance in every case.” 133 S. Ct. at 1567. The Supreme Court explained that Schmerber never created a per se rule but, instead, had incorporated a totality-of-the-circumstances test. Id. at 1558-60. Thus, in McNeely, the Court clarified that the dissipation of alcohol from a person’s bloodstream is not the beginning and end of the analysis for exigency in all warrantless blood draws involving suspected drunk drivers. Rather, courts must evaluate the totality of the circumstances in assessing exigency, one factor of which is the human body’s natural dissipation of alcohol.

3. The question before the Court is McNeely’s application to the warrantless drawing of defendant’s blood, which occurred prior to McNeely’s issuance. In State v. Wessells, 209 N.J. 395 (2012), the Court noted that “federal retroactivity turns on whether a new rule of law has been announced, coupled with an analysis of the status of the particular matter, that is, whether it is not yet final, is pending on direct appeal, or is being collaterally reviewed.” Id. at 411. The Court recognized that if a new rule has been established “for the conduct of criminal prosecutions” it will “be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Id. at 412 (quoting Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). Accordingly, in Wessells, the Court applied a new rule of law that had been established in a United States Supreme Court decision to a case pending review in New Jersey at the time the decision was handed down. As the Appellate Division found, and defendant and the State acknowledge, this case calls for a similar result. McNeely represents new law settling an area of criminal practice, thus, under federal retroactivity law, the decision deserves pipeline retroactive application. The United States Supreme Court has pronounced the standard to be applied under the Fourth Amendment to warrantless searches involving blood draws of suspected DWI drivers and, under Supremacy Clause principles, this Court is bound to follow it as the minimal amount of constitutional protection to be provided. Therefore, in accord with Wessells, McNeely applies retroactively to cases that were in the pipeline when it was decided.

4. The Court next considers whether the exclusionary rule should have any applicability in suppressing defendant’s blood test results when the police merely followed an asserted, commonly held understanding of Schmerber’s requirements in this State. Our State declined to recognize the exception to the exclusionary rule that was first established in United States v. Leon, 468 U.S. 897 (1984), and has consistently rejected a good faith exception to the exclusionary rule. This matter deals specifically with police conduct in reliance on case law in New Jersey that led law enforcement to the reasonable conclusion that the natural dissipation of alcohol from the human body created exigency sufficient to dispense with the need to seek a warrant. Although the Court’s decisions never expressly pronounced an understanding of Schmerber that per se permitted warrantless blood draws in all cases on the basis of alcohol dissipation alone, case law contains language that provides a basis for such a belief. The United States Supreme Court has now clarified the appropriate test to be applied to warrantless blood draws, and this Court adheres to that test without any superimposed exception.

5. In these pipeline cases, law enforcement should be permitted on remand to present their basis for believing that exigency was present in the facts surrounding the evidence’s potential dissipation and police response under the circumstances to the events involved in the arrest. The exigency in these circumstances should be assessed in a manner that permits the court to ascribe substantial weight to the perceived dissipation that an officer reasonably faced. Reasonableness of officers must be assessed in light of the existence of the McNeely opinion. But, in reexamining pipeline cases when police may have believed that they did not have to evaluate whether a warrant could be obtained, based on prior guidance from the Court that did not dwell on such an obligation, reviewing courts should focus on the objective exigency of the circumstances that the officer faced in the situation.

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for further proceedings consistent with this opinion.

CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA and SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE LaVECCHIA’s opinion.