Opinion
DOCKET NO. A-1570-13T1
08-12-2014
STATE OF NEW JERSEY, Plaintiff-Appellant, v. TIMOTHY REESE, Defendant-Respondent.
Warren W. Faulk, Camden County Prosecutor, attorney for appellant (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief). Agre & Jensen, attorneys for respondent (Robert N. Agre and Annmarie Jensen, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sapp-Peterson and Lihotz. On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 12-10-2620. Warren W. Faulk, Camden County Prosecutor, attorney for appellant (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief). Agre & Jensen, attorneys for respondent (Robert N. Agre and Annmarie Jensen, on the brief). PER CURIAM
We granted leave to the State to appeal the trial court order suppressing the results of the blood test administered to defendant following a fatal motor vehicle collision. The test results revealed that defendant's blood alcohol content was .127. Based upon the United States Supreme Court's recent decision in Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 3d 696 (2013), the court found there were no exigent circumstances justifying the warrantless seizure of blood from defendant. On appeal, the State contends the trial court erred when it invoked the exclusionary remedy to suppress the blood-draw evidence and results, and additionally erred when it declined to find that exigent circumstances justified the warrantless drawing of blood.
On appeal, the State raises the following arguments for our consideration:
POINT I
THE MOTION JUDGE ERRED IN INVOKING THE EXCLUSIONARY REMEDY TO SUPPRESS BLOOD-DRAW EVIDENCE OF DEFENDANT'S INTOXICATION UNDER MISSOURI v. MCNEELY, AND FURTHER ERRED IN NOT FINDING EXIGENCY IN THE "SPECIAL FACTS" NEVERTHELESS PRESENT IN THE RECORD. [RAISED BELOW.]
A. THE MOTION JUDGE IMPROPERLY AFFORDED DEFENDANT AN EXCLUSIONARY REMEDY BASED UPON THE RETROACTIVE APLICATION OF MISSOURI v. MCNEELY.
B. EVEN RETROACTIVE APPLICATION OF MCNEELY DID NOT JUSTIFY SUPPRESSION, AS THE MOTION JUDGE ERRED IN FAILING TO RECOGNIZE THE EXIGENCY PRESENT IN THE "SPECIAL FACTS" OF THIS RECORD.
These facts are taken from the record. In the early morning hours of December 31, 2011, defendant caused the death of Michael Thomas while operating a motor vehicle. Police transported defendant to an area hospital where medical personnel drew blood. Defendant did not otherwise require medical treatment. Police did not obtain a warrant prior to seeking to draw defendant's blood. In October 2013, a Camden County grand jury indicted defendant on one count of second-degree death by auto, N.J.S.A. 2C:11-5(a). Defendant was also issued motor vehicle summonses for driving while intoxicated ("DWI"), N.J.S.A. 39:4-50, and careless driving, N.J.S.A. 39:4-97.
In April 2013, the United States Supreme Court issued its decision in McNeely, holding the natural metabolization of alcohol in the blood stream does not constitute exigent circumstances to justify a warrantless blood draw. McNeely, supra, ___ U.S. at ___, 133 S. Ct. at 1557, 185 L. Ed. 2d at 702. Defendant, relying upon McNeely, filed a motion to suppress blood-draw evidence and the resulting blood alcohol content ("BAC") reading of .127. The trial court granted the motion, concluding defendant was entitled to retroactive application of McNeely. Thereafter, the court denied the State's motion for reconsideration. We granted the State's motion for leave to appeal the trial court's interlocutory order.
While defendant's appeal was pending review on our plenary panel, another panel decided State v. Adkins, 4 33 N.J. Super. 479 (App. Div. 2013). The facts in Adkins are similar to those in the present matter. There, the defendant was involved in a one-car accident in which his vehicle struck a utility pole, and his two passengers were injured. Id. at 481. After failing roadside sobriety tests, police charged the defendant with DWI and transported him to a local hospital where blood was drawn at the request of police. At the time of the accident, in 2010, New Jersey law permitted police to obtain a blood sample without a warrant so long as they had probable cause to believe the driver was intoxicated. Id. at 482 (citing Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) (presumed exigency created by the dissipation of alcohol levels in the bloodstream)). We held the McNeely decision did not mandate suppression of the blood evidence because the United States Supreme Court will not apply the exclusionary rule as a remedy where police have conducted a search in good faith reliance on binding legal precedent in the jurisdiction where the search occurred. Id. at 484.
In New Jersey, new State constitutional search and seizure rules ordinarily are applied prospectively. In cases where the new rule is an exclusionary rule, meant solely to deter illegal police conduct, the new rule is virtually never given retroactive effect. The reason is the deterrent purposes of such a rule would not be advanced by applying it to past misconduct. Had McNeely been decided by the
New Jersey Supreme Court in construing our State Constitution, it would not have been applied retroactively — thus reaching the same result as in the federal system but by a different route.
[Id. at 486 (citations and internal quotation marks and omitted).]
We reasoned "the Court has signaled that application of the exclusionary rule may not always be appropriate where applying the rule would not serve its well-understood purposes." Id. at 490. We recognized that police acted lawfully under well-established case law. Id. at 491. We noted the "[r]etroactivity analysis implicitly recognizes that, where retrospective application of a new rule of law will inflict major disruption on the criminal justice system, some defendants will not get the benefit of the new rule even if it implicates constitutional rights." Id. at 492. We additionally
emphasize[d] the unusual circumstances of this case, where (a) the United States Supreme Court issued a new search and seizure rule that was more restrictive than existing precedent from our Supreme Court; (b) at the time the search was conducted, it was authorized by settled precedent from our Supreme Court; and (c) had the new rule been issued by our Supreme Court as an interpretation of the New Jersey Constitution, it would not have been applied retroactively.
[Id. at 493.]
Here, defendant was arrested in December 2011. The Supreme Court decided McNeely in April 2013. The motion to suppress was granted five months later. Therefore, this matter was "in the pipeline" and subject to a retroactivity analysis.
Like McNeely, police acquired a blood draw without first obtaining a search warrant. There is no dispute that exigent circumstances did not exist. However, the McNeely decision announced a new rule of law, and when analyzed under our scheme for determining whether to give retroactive application to a new rule of law, see, e.g., State v. Hodge, 426 N.J. Super. 321, 324 (App. Div. 2012), along with the Supreme Court's clarification of its retroactivity holding in Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987) and, based upon its more recent decision of Davis v. United State, ___ U.S. ___, ___, 131 S. Ct. 2419, 2434, 180 L. Ed. 2d 285, 302 (2011), we are convinced the trial court erred when it accorded retroactive application of the new rule. Rather, we adopt the reasoning of our sister panel in Adkins as dispositive of the issue raised here.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION